Alguard v. Department of Agriculture

• Court: Court of Appeals for the Federal Circuit
• Decided: August 3, 2022
• Docket: 21-2154
• Status: Unpublished

Opinion

Case: 21-2154 Document: 47 Page: 1 Filed: 08/03/2022

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

WENDY ALGUARD, Petitioner

v.

DEPARTMENT OF AGRICULTURE, Respondent ______________________

2021-2154 ______________________

Petition for review of the Merit Systems Protection Board in No. SF-1221-20-0270-W-1. ______________________

Decided: August 3, 2022 ______________________

WENDY ALGUARD, Yakima, WA, pro se.

ERIC JOHN SINGLEY, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, for respondent. Also represented by BRIAN M. BOYNTON, STEVEN JOHN GILLINGHAM, PATRICIA M. MCCARTHY. ______________________

Before PROST, CHEN, and STOLL, Circuit Judges. Case: 21-2154 Document: 47 Page: 2 Filed: 08/03/2022

PER CURIAM. Wendy Alguard petitions for review of the Merit Sys- tems Protection Board’s (“Board”) decision denying correc- tive action in her individual-right-of-action (“IRA”) appeal. We affirm. I Ms. Alguard was a Program Support Assistant with the U.S. Department of Agriculture’s (“agency”) Animal and Plant Health Inspection Service, Plant Protection Quaran- tine, in Yakima, Washington, at the times relevant to this appeal. Ms. Alguard’s duties included providing adminis- trative support to other employees. In February 2020, Ms. Alguard filed an IRA appeal with the Board alleging that the agency took six personnel actions against her in retaliation for three protected whis- tleblowing disclosures. The three alleged protected disclo- sures were: (1) a June 26, 2015 complaint to the agency’s Office of Inspector General (“OIG”) regarding files taken from Ms. Alguard’s filing cabinet; (2) a September 21, 2015 complaint to OIG regarding falsified overtime; and (3) an August 10, 2017 complaint to OIG regarding the renewal of a lease for an unoccupied office space in Yakima. SApp’x 1 8. The six alleged personnel actions were: (1) a July 15, 2015 letter of caution issued by Diana Hoffman, who at the time was the State Plant Health Director re- sponsible for the Yakima office; (2) a change in Ms. Al- guard’s performance rating from “Superior” to “Fully Successful”; (3) a denial of a $500 spot award; (4) Ms. Al- guard’s nonselection for a position as an Export

1 “SApp’x” refers to the agency’s Supplemental Ap- pendix for pages 1–1988 and to Ms. Alguard’s Supple- mental Appendix for pages 1989–2285. Case: 21-2154 Document: 47 Page: 3 Filed: 08/03/2022

ALGUARD v. DEPARTMENT OF AGRICULTURE 3

Certification Specialist 2; (5) a five-day suspension for ex- hibiting unacceptable behavior and failing to follow in- structions; and (6) a reprimand for conduct prejudicial to the best interests of the service. An administrative judge (“AJ”) held a hearing, heard testimony, and issued an initial decision denying corrective action. After finding that Ms. Alguard made the three aforementioned disclosures (and that they were protected), the AJ considered whether she proved that any of them contributed to a personnel action—and if so, whether the agency proved by clear and convincing evidence that it would have taken the same personnel action absent such disclosure(s). For some of the alleged personnel actions, the AJ found either that Ms. Alguard’s protected disclosures were not contributing factors or that the actions were not “personnel action[s]” covered by the relevant statute, 5 U.S.C. § 2302(a)(2)(A). For example, the AJ agreed that the letter of caution was a personnel action but found that no pro- tected disclosure contributed to it because neither Ms. Hoffman nor any other official involved in issuing the letter knew of any protected disclosure when it was issued. SApp’x 25. As to the change in Ms. Alguard’s performance rating from “Superior” to “Fully Successful,” the AJ agreed that alterations had been made to Ms. Alguard’s perfor- mance appraisal form. But, because the rating was recti- fied before processing—with Ms. Alguard ultimately

2 The agency’s brief observes—and Ms. Alguard’s re- ply brief does not dispute—that Ms. Alguard’s opening brief in this appeal did not challenge the Board’s rejection of her whistleblower-retaliation claim regarding this per- sonnel action. See Resp’t’s Informal Br. 17 n.2. We agree that Ms. Alguard has not preserved a challenge to that re- jection and therefore do not further address this personnel action. Case: 21-2154 Document: 47 Page: 4 Filed: 08/03/2022

receiving a “Superior” rating—the AJ concluded that this incident was not a personnel action. SApp’x 28–29. The AJ likewise concluded that the alleged $500 spot-award de- nial was not a personnel action because there was “insuffi- cient proof” that her supervisor “ever actually completed the process to recommend” Ms. Alguard for the award. SApp’x 29–30. The AJ did find, however, that the five-day suspension and reprimand were personnel actions and that Ms. Al- guard showed that at least one of her protected disclosures was a contributing factor. So the AJ considered whether the agency proved by clear and convincing evidence that it would have taken the same personnel actions absent such disclosure(s). In doing so, the AJ evaluated the factors ar- ticulated in Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), namely: (1) the strength of the agency’s evidence supporting its personnel action; (2) the existence and strength of any motive to re- taliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblow- ers but who are otherwise similarly situated. SApp’x 34–35 (citing Carr, 185 F.3d at 1323). For each of these two personnel actions, the AJ found that: (1) the first Carr factor weighed in the agency’s favor because strong evidence supported the agency’s action, SApp’x 36–40; (2) the second Carr factor weighed in the agency’s favor because there was “minimal evidence of re- taliatory animus” from the relevant officials, SApp’x 40–43; and (3) the third Carr factor was neutral because “neither party introduced any specific evidence of an employee in a position similar to [Ms. Alguard’s] who engaged in conduct similar to that for which she was disciplined,” SApp’x 43. “Considering the factors as a whole,” the AJ found that “the agency proved by clear and convincing evidence that it would have made the same decision as to both the suspen- sion and the reprimand in the absence of [Ms. Alguard’s] Case: 21-2154 Document: 47 Page: 5 Filed: 08/03/2022

ALGUARD v. DEPARTMENT OF AGRICULTURE 5

whistleblowing.” SApp’x 43–44. The AJ accordingly de- nied corrective action. The AJ’s initial decision became the Board’s final deci- sion. See 5 C.F.R. § 1201.113. Ms. Alguard timely peti- tioned for review of that decision. We have jurisdiction under 28 U.S.C. § 1295(a)(9). II Our review of Board decisions is limited. Whiteman v. Dep’t of Transp., 688 F.3d 1336, 1340 (Fed. Cir. 2012). We will affirm a final decision of the Board unless it is “(1) ar- bitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures re- quired by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c); see also Potter v. Dep’t of Veterans Affs., 949 F.3d 1376, 1379 (Fed. Cir. 2020). We review the Board’s legal determinations de novo and its factual findings for sub- stantial evidence. Bannister v. Dep’t of Veterans Affs., 26 F.4th 1340, 1342 (Fed. Cir. 2022). Substantial evidence is “such relevant evidence as a reasonable individual might accept as adequate to support a conclusion.” Belanger v. Off. of Pers. Mgmt., 1 F.3d 1223, 1227 (Fed. Cir. 1993). To establish a prima facie case of whistleblower retali- ation before the Board, Ms. Alguard had to prove that, more likely than not, she made a protected disclosure that contributed to the agency’s personnel action against her. See 5 U.S.C. § 1221(e)(1); Rickel v. Dep’t of the Navy, 31 F.4th 1358, 1364 (Fed. Cir. 2022). She could prove such contribution by satisfying the so-called knowledge-timing test—i.e., by demonstrating that the official taking the ac- tion knew of the disclosure and that the action “occurred within a period of time such that a reasonable person could conclude” that the disclosure was a “contributing factor in the personnel action.” 5 U.S.C. § 1221(e)(1). If Ms. Alguard established her prima facie case, the burden would shift to the agency to prove, by clear and convincing evidence, that Case: 21-2154 Document: 47 Page: 6 Filed: 08/03/2022

it would have taken the same personnel action absent such disclosure. See 5 U.S.C. § 1221(e)(2); Rickel, 31 F.4th at 1364. Ms. Alguard, as the party alleging that the Board erred, has the burden of establishing as much. E.g., Sacco v. Dep’t of Just., 317 F.3d 1384, 1386 (Fed. Cir. 2003) (citing Harris v. Dep’t of Veterans Affs., 142 F.3d 1463, 1467 (Fed. Cir. 1998)). We conclude that she has failed to estab- lish any prejudicial error in the Board’s decision. We begin with the letter of caution. Ms. Alguard dis- putes the Board’s finding that her protected disclosures did not contribute to this personnel action, given that the agency had her OIG complaint before the letter of caution issued. But the relevant question is not when the agency or its OIG had the complaint; it’s whether the official(s) in- volved in issuing the letter of caution knew of the complaint when the letter was issued. On this question, the Board noted that Ms. Alguard “offered no evidence” to show that Ms. Hoffman or any other relevant official “was aware” of Ms. Alguard’s OIG complaint as of the letter’s issuance, and it therefore found that Ms. Alguard failed to carry her burden on this issue. SApp’x 25. Ms. Alguard has identi- fied nothing in the record that would make us think that no reasonable factfinder could have found as the Board did. As to the change in performance rating from “Superior” to “Fully Successful,” Ms. Alguard devotes substantial time to addressing who might have done what concerning the alterations made to her performance appraisal form. See Pet’r’s Informal Br. 4–7. But the Board found those ques- tions immaterial because Ms. Alguard ultimately received a “Superior” rating, rendering the incident, in the Board’s view, not a covered personnel action. See SApp’x 28 (“[R]egardless of who made the changes and why, [Ms. Al- guard] did not prove that she was ever subjected to a neg- ative performance evaluation . . . . I find this incident was not a performance evaluation . . . because the official Case: 21-2154 Document: 47 Page: 7 Filed: 08/03/2022

ALGUARD v. DEPARTMENT OF AGRICULTURE 7

evaluation processed was ‘Superior.’”). Ms. Alguard has not demonstrated that the Board’s finding—i.e., that Ms. Alguard didn’t carry her burden to show that this inci- dent was a personnel action—lacked substantial evidence or was otherwise erroneous. Ms. Alguard also appears to challenge the Board’s find- ing regarding the alleged denial of a $500 spot award—spe- cifically, its finding that this was not a personnel action because Ms. Alguard offered insufficient proof that her su- pervisor ever completed the process to recommend her for the award. Ms. Alguard’s challenge rests on her view that a certain witness was not credible. See Pet’r’s Informal Br. 6. Setting aside that the Board’s finding rested on more than just that witness’s testimony, “[t]he credibility deter- minations of an [AJ] are virtually unreviewable on appeal.” Bieber v. Dep’t of the Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002). Again, we conclude that Ms. Alguard has not demonstrated that the Board’s finding lacked substantial evidence or was otherwise erroneous. Finally, regarding the five-day suspension and repri- mand, Ms. Alguard impresses upon us her view of the inci- dents cited in those actions—presumably trying to undermine the Board’s finding under the first Carr factor that strong evidence supported the agency’s action. The alleged incidents underlying the five-day suspen- sion included (but were not limited to): (1) a phone call in which Ms. Alguard raised her voice, used profanity, and threatened a high-level agency official; and (2) Ms. Al- guard’s failure to follow instructions concerning procuring a shredding service and a new keyboard. SApp’x 36–38; see also SApp’x 553–55; SApp’x 561–65. As to the former, the Board considered a sworn statement from the high-level agency official and found that it was “consistent with other information in the record” (including testimony from some- one who heard about the call shortly after it occurred) and “more credible than [Ms. Alguard’s] general denial and self- Case: 21-2154 Document: 47 Page: 8 Filed: 08/03/2022

serving accusations about [the official’s] integrity.” SApp’x 37. As to the latter, the Board acknowledged Ms. Alguard’s contention that the items she was told to purchase were “wasteful and unnecessary” and that it was “part of her job duties to question inappropriate pur- chases.” SApp’x 38. But, after reviewing emails underly- ing this incident, the Board found that the purchase requests were “objectively innocuous” and that the emails “reflect[ed] [Ms. Alguard’s] hostility toward” those making the requests and her “entrenched resistance” to the in- structions. SApp’x 38. And, citing the deciding official’s testimony, the Board agreed that while Ms. Alguard “even- tually complied with the requests, she only did so after cre- ating multiple delays, involving unnecessary parties, and otherwise inject[ing] difficulty into what should have been simple purchases.” SApp’x 38. The alleged incident underlying the reprimand con- cerned a conference call in which Ms. Alguard, despite be- ing instructed to take her concerns with another employee offline, failed to follow that instruction and instead contin- ued the discussion. SApp’x 17, 38–40; see also SApp’x 176–79; SApp’x 1119–23. The Board found that Ms. Al- guard admitted to the conduct underlying the reprimand. SApp’x 40. Although Ms. Alguard now suggests that she did not admit to this conduct, her written and oral re- sponses concerning the reprimand undercut that sugges- tion. See App’x 3 75–77 (written response from Ms. Alguard acknowledging that she continued the discussion but at- tempting to justify why she did so); SApp’x 1990 (oral re- sponse reciting this justification); SApp’x 176–77 (reprimand decision addressing this justification). And, although Ms. Alguard had maintained that “she felt it was in the agency’s best interests to discuss her complaints

3 “App’x” refers to Ms. Alguard’s Appendix. Case: 21-2154 Document: 47 Page: 9 Filed: 08/03/2022

ALGUARD v. DEPARTMENT OF AGRICULTURE 9

about [the employee] in a group setting,” the Board found no merit to that contention. SApp’x 39–40. Ms. Alguard’s arguments on appeal generally seek to justify her actions or attack the credibility of other wit- nesses. None of these arguments convince us that the Board’s finding under the first Carr factor lacked substan- tial evidence or was otherwise erroneous. Ms. Alguard’s arguments concerning the second Carr factor are similarly unconvincing. For example, the Board found that: (1) animus between Ms. Alguard and Ms. Hoff- man preexisted what could have been the consequence of Ms. Alguard’s protected disclosures 4; (2) nothing Ms. Al- guard reported to OIG “seems to have reflected poorly on [relevant officials’] capacity as managers”; (3) aside from being required to respond to questions from OIG or other investigators, these officials “were not negatively impacted by” Ms. Alguard’s protected disclosures; and (4) other de- ciding officials either did not know of Ms. Alguard’s pro- tected disclosures or knew of them only because Ms. Alguard brought them up in the course of the deci- sionmaking process. SApp’x 41–43. Ms. Alguard has not demonstrated that these findings—or the Board’s decision to weigh the second Carr factor for the agency—lacked sub- stantial evidence or were otherwise erroneous. And while Ms. Alguard appears to take issue with the Board’s finding that the third Carr factor was neutral, see Pet’r’s Informal Br. 27, she has not demonstrated that the Board’s find- ing—that “neither party introduced any specific evidence of an employee in a position similar to [Ms. Alguard’s] who engaged in conduct similar to that for which she was

4 Although Ms. Alguard’s reply brief challenges the Board’s statements regarding the relative timing of events underlying this finding, Pet’r’s Informal Reply Br. 15, we conclude that she forfeited this challenge by not raising it in her opening brief. Case: 21-2154 Document: 47 Page: 10 Filed: 08/03/2022

disciplined,” SApp’x 43—lacked substantial evidence or was otherwise erroneous. III We have considered Ms. Alguard’s remaining argu- ments but find them unpersuasive. For the foregoing rea- sons, we affirm the Board’s decision. AFFIRMED COSTS No costs.