Mallonee v. Interior

• Court: Court of Appeals for the Federal Circuit
• Decided: March 10, 2025
• Docket: 24-2155
• Status: Unpublished

Opinion

Case: 24-2155 Document: 49 Page: 1 Filed: 03/10/2025

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

MICHAEL MALLONEE, Petitioner

v.

DEPARTMENT OF THE INTERIOR, Respondent ______________________

2024-2155 ______________________

Petition for review of the Merit Systems Protection Board in No. DE-1221-16-0063-W-1. ______________________

Decided: March 10, 2025 ______________________

MICHAEL KEITH MALLONEE, Conyers, GA, pro se.

LIRIDONA SINANI, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, for respondent. Also represented by BRIAN M. BOYNTON, PATRICIA M. MCCARTHY, LOREN MISHA PREHEIM. ______________________

Before PROST, LINN, and STOLL, Circuit Judges. Case: 24-2155 Document: 49 Page: 2 Filed: 03/10/2025

PER CURIAM. Michael Mallonee appeals the Final Order of the Merit Systems Protection Board (“Board”) affirming its initial de- cision to deny corrective action as to Mallonee’s termina- tion. Mallonee v. Dep’t of Interior, No. DE-1221-16-0063- W-1, 2024 WL 2814682 (M.S.P.B. May 31, 2024) (“Final Or- der”). For the following reasons, we affirm. I. BACKGROUND On July 28, 2011, Mallonee was tentatively selected by the Department of the Interior’s (the “agency’s”) Bureau of Indian Education (“BIE”) as Assistant Principle at the Cheyenne Eagle Butte School (“CEBS”) subject to a three- year probationary period. Supp. App’x 73. 1 On April 19, 2012, Mallonee’s supervisor, Principal Nadine Eastman, informed him that he would be removed from his position effective May 4, 2012. Supp. App’x 85–86. Mallonee filed an individual right of action (“IRA”) ap- peal under the Whistleblower Protection Act, contending that the agency retaliated against him for making multiple protected disclosures by subjecting him to a hostile work environment, threatening to charge him as Absent Without Leave (“AWOL”), terminating his employment, and failing to select him for various positions. Final Order, 2024 WL 2814682, at *1; see 5 U.S.C. § 1221. Specifically, Mallonee contended that he made several protected disclosures: dis- closing that Eastman harassed him; complaining to the Oc- cupational Safety and Health Administration (“OSHA”) that CEBS suffered from unsafe building conditions; and relaying to investigators that a colleague lacked the neces- sary certification to serve as a kindergarten principal. Supp. App’x 31.

1 “Supp. App’x” refers to the appendix the Secretary

filed concurrently with its informal response brief. Case: 24-2155 Document: 49 Page: 3 Filed: 03/10/2025

MALLONEE v. INTERIOR 3

The administrative judge concluded that while Mal- lonee’s harassment allegations did not qualify as protected disclosures, his disclosures of unsafe building conditions and the appointment of unqualified personnel were pro- tected. Further, the administrative judge found that Mal- lonee proved that the agency took personnel actions against him by threatening him with AWOL status, termi- nating his probationary employment, and not selecting him for employment for several positions. Supp. App’x 43–44. The administrative judge concluded, however, that Mal- lonee failed to show that his protected disclosures contrib- uted to the agency’s decisions as to those actions. Supp. App’x 44–46. The administrative judge concluded that the threat to charge Mallonee as AWOL predated any of his protected disclosures. Supp. App’x 45. With respect to the termination of his employment, the administrative judge found that Mallonee failed to prove that the deciding offi- cial, Eastman, knew about his OSHA complaint or his dis- closures regarding his colleague’s lack of certification. Supp. App’x 46–47. Further, with respect to his non-selec- tion for employment, Mallonee failed to identify the decid- ing officials for each of the positions he sought. Supp. App’x 47–48. Thus, the administrative judge denied Mal- lonee’s petition for corrective action. In the alternative, the administrative judge found that the agency provided clear and convincing evidence that it would have sought the same personnel actions had the pro- tected disclosures not been made. Supp. App’x 49. Modifying the Initial Decision, the Board vacated the alternative finding, but otherwise affirmed the denial of corrective action. Final Order, 2024 WL 2814682, at *4– 5, *7. Mallonee now appeals to this court. We have jurisdic- tion under 28 U.S.C. § 1295(a)(9). Case: 24-2155 Document: 49 Page: 4 Filed: 03/10/2025

II. DISCUSSION Mallonee argues that the Board failed to properly and fully consider key pieces of evidence, erroneously prevented him from calling witnesses, and applied the wrong legal standard to his case. We address each argument in turn. A. Mallonee alleges that the Board failed to consider evi- dence of Eastman’s retaliatory intent in the form of: (1) an email in which Eastman commented that “what goes around comes around;” and (2) an independent CRC & As- sociates (“CRC”) report describing an investigation into CEBS personnel and efficiency problems. As to the former, Mallonee contends that Eastman’s comment, made after learning that her employment contract would not be re- newed, shows that she possessed retaliatory intent. But Mallonee does not explain how this text relates to his pro- tected disclosures or to the personnel actions against him. Moreover, substantial evidence supports the Board’s con- clusion that Eastman was not privy to Mallonee’s disclo- sures. As to the CRC report, Mallonee argues that the admin- istrative judge ignored the CRC report’s warning that “there is a high probability that any further personnel ac- tions on [Eastman’s] part may cause BIE lawsuits and ac- tions.” Appellant’s Br. 7. But Mallonee fails to explain how this text in any way evinces that his protected disclosures contributed to the personnel actions taken against him. To the contrary, the Board found as a matter of fact that Mal- lonee’s disclosures did not contribute to the agency’s threat of AWOL status or its decision to remove Mallonee from his position. Specifically, the Board found that Eastman began the termination process on January 11, 2012 and threat- ened to designate Mallonee as AWOL on February 12, 2012, before any of his alleged disclosures. Final Order, 2024 WL 2814682, at *2, *4; Supp. App’x 87–88. Mallonee has failed to articulate why the evidence he alleges the Case: 24-2155 Document: 49 Page: 5 Filed: 03/10/2025

MALLONEE v. INTERIOR 5

Board overlooked would have resulted in a different out- come. Substantial evidence supports the Board’s conclu- sion that Mallonee failed to demonstrate that his disclosures contributed to his removal or the agency’s threatened AWOL status. See Jones v. Dep’t of Health & Hum. Servs., 834 F.3d 1361, 1366 (Fed. Cir. 2016) (“Sub- stantial evidence is more than a mere scintilla of evidence, but less than the weight of the evidence.” (internal cita- tions and quotations omitted)). Mallonee argues that the Board failed to consider sev- eral facts tending to show that the CEBS was mismanaged. Mallonee argues that the testimonies of Eastman and her Human Resources contact, Jodie Tomhave, contained sig- nificant inconsistencies that must be viewed alongside the general mismanagement of the BIE and CEBS. Mallonee argues that the administrative judge also overlooked the fact that Eastman failed to maintain proper documentation and that Tomhave’s deposition showed that the BIE was mismanaged, undermining the credibility of the appel- lant’s removal. Mallonee further contends that the admin- istrative judge did not acknowledge the CRC report’s criticism of the CEBS staff’s teaching methods. These ar- guments exceed the scope of our review on appeal, however, as we are confined to review the Board’s adjudication of Mallonee’s whistleblower reprisal claims. See Rockwell v. Dep’t of Transp., Fed. Aviation Admin., 789 F.2d 908, 913 (Fed. Cir. 1986) (“Congress expressly limited our appellate review, 5 U.S.C. § 7703(c), to final orders and decisions of the board on the record.” (emphasis omitted)); Supp. App’x 81–84 (holding that because he made a non-frivolous allegation of whistleblower retaliation, Mallonee invoked the Board’s jurisdiction to hear his IRA appeal). Mallonee also argues that the administrative judge failed to consider that the grounds for his removal were false or unsupported. Specifically, Mallonee contends that Eastman’s allegations that he failed to timely return refer- ence checks, engaged in aggressive behavior, and Case: 24-2155 Document: 49 Page: 6 Filed: 03/10/2025

improperly used an agency cell phone are false and that there is no documentation to show he inappropriately ap- proved compensatory time for teachers or that he did not review all teacher lesson plans. Mallonee also contends that Eastman prevented him from signing a continued em- ployment contract during his sick leave. To the extent that Mallonee seeks to litigate the merits of his removal, his ar- guments lie outside the scope of this IRA appeal. See Supp. App’x 81–84. To the extent that he argues that the grounds of his removal were pretextual and that he was removed in retaliation for his disclosures, Mallonee does not meaning- fully challenge the administrative judge’s finding that Eastman initiated dismissal proceedings before any of his protected disclosures, thus foreclosing any finding of retal- iation. See Supp. App’x 25. Accordingly, we see no merit to these arguments. B. Mallonee next contends that the administrative judge improperly prevented him from calling most of his wit- nesses. But Mallonee does not indicate what this testi- mony would show or how this additional testimony would have made a difference to the outcome of his case. The ab- sence of such an explanation leaves this argument without merit. See 28 U.S.C. § 2111. Mallonee also contends that the administrative judge improperly characterized his testimony as “vague, uncon- vincing, and improbable.” Appellant’s Br. 17. Such credi- bility assessments, however, are committed to the judgment of the fact finder and are virtually unreviewable on appeal. Doe v. Sec’y of Health & Hum. Servs., 601 F.3d 1349, 1355 (Fed. Cir. 2010). C. Lastly, Mallonee argues that the Board applied the wrong legal standard by failing to recognize that BIE teachers and administrative staff are federal employees Case: 24-2155 Document: 49 Page: 7 Filed: 03/10/2025

MALLONEE v. INTERIOR 7

protected under the Whistleblower Protection Act. Alt- hough the agency originally argued that Mallonee was not a federal employee, the administrative judge ultimately disagreed and applied the correct legal standard. Supp. App’x 78 n.2 (noting that Mallonee’s “status as an excepted federal employee in the federal service distinguishes the line of cases that involve individuals who were contractors but not federal employees”). We conclude, therefore, that Mallonee failed to show that the Board applied the wrong legal standard to his case. * * * Mallonee’s remaining arguments invite this Court to do what we do not have the power to do and reweigh the evidence, improperly substituting this Court’s factual find- ings for those of the Board. See Jones, 834 F.3d at 1369 (“Under the substantial evidence standard of review, we do not reweigh evidence on appeal.” (internal quotations omit- ted)). Because none of Mallonee’s arguments on appeal meaningfully impact the Board’s bases for denying his pe- tition for corrective action, Mallonee has failed to meet his burden to show reversible error. For these, we affirm. AFFIRMED COSTS Each party shall bear its own costs.