McPherson v. Dhs

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

ISAAC NATHANIEL MCPHERSON, Petitioner

v.

DEPARTMENT OF HOMELAND SECURITY, Respondent ______________________

2018-2218 ______________________

Petition for review of the Merit Systems Protection Board in No. DA-1221-17-0462-W-1. ______________________

Decided: April 4, 2019 ______________________

ISAAC NATHANIEL MCPHERSON, Spanish Fort, AL, pro se.

JOHN S. GROAT, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC, for respondent. Also represented by JOSEPH H. HUNT, STEVEN JOHN GILLINGHAM, ROBERT EDWARD KIRSCHMAN, JR. ______________________

Before DYK, MAYER, and BRYSON, Circuit Judges. 2 MCPHERSON v. DHS

PER CURIAM. Isaac McPherson petitions for review of a decision of the Merit Systems Protection Board (“Board”) holding that the Transportation Security Administration (“TSA”) did not unlawfully terminate him. We affirm. BACKGROUND In 2016, TSA hired McPherson to be a Transportation Security Officer at New Orleans International Airport. Transportation Security Officers screen passengers and their luggage at security checkpoints. The first two years that an employee works for TSA are considered a trial pe- riod during which TSA can evaluate the employee’s perfor- mance and conduct. McPherson’s trial period was turbulent. The central incident occurred on March 2, 2017. That day, another of- ficer was screening passengers while coaching two trainees near McPherson. McPherson told the officer that she was not following proper procedures, which led to an argument. When other officers approached, McPherson told them to pay attention to their own duties. Having overheard the argument, a manager came over and told McPherson to calm down. Three other incidents are also relevant. In December 2016, McPherson raised his voice at a supervisor when he requested to take a break. In February 2017, a training specialist approached McPherson about the way he set up his x-ray monitors. McPherson responded rudely and raised his voice. Finally, in April 2017, a passenger com- plained that McPherson had yelled at him and acted rudely. During this time, McPherson held a leadership position in his union, the American Federation of Government Em- ployees. In April 2017, he met with a supervisor to discuss ways in which he believed TSA was failing to comply with its collective bargaining agreement with the union, such as

MCPHERSON v. DHS 3

neglecting to provide adequate facilities for nursing moth- ers and routinely monitor radiation levels of TSA equip- ment. By a letter dated May 17, 2017, TSA informed McPher- son that he would be terminated because of his discourte- ous conduct described above. Following his termination, McPherson filed a com- plaint with the Office of Special Counsel, alleging in perti- nent part that TSA improperly terminated him in retaliation for making protected disclosures. When that of- fice declined to seek corrective action, McPherson appealed to the Board. After a hearing, the administrative judge (“AJ”) issued a detailed opinion. The AJ concluded that McPherson had made protected disclosures and that they were a contrib- uting factor in TSA’s termination decision. However, the AJ concluded that TSA had established that it would have terminated McPherson absent those disclosures. McPherson did not seek review from the full Board, but instead timely filed a petition for review in our court. The AJ’s decision became the decision of the Board. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). DISCUSSION Our review of Board decisions is limited to whether the decision was “(1) arbitrary, capricious, an abuse of discre- tion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial ev- idence.” 5 U.S.C. § 7703(c). Because Transportation Secu- rity Officers are not considered “employees” as defined by 5 U.S.C. § 7511(a), they do not have a general right to ap- peal an adverse personnel action to the Board under 5 U.S.C. § 7513. However, they may file a so-called “individ- ual right of action” (“IRA”) appeal to challenge a personnel

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action in retaliation for whistleblowing. 5 U.S.C. §§ 1221(a), 2302(b)(8). Agencies may not terminate (or take other adverse per- sonnel action against) an employee in retaliation for “any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evi- dences . . . a violation of any law, rule, or regulation.” Kahn v. Dep’t of Justice, 618 F.3d 1306, 1311 (Fed. Cir. 2010) (al- teration in original) (quoting 5 U.S.C. § 2302(b)(8)(A)). Here, the Board determined that McPherson made a pro- tected disclosure and that this was a contributing factor in his removal. However, the Board concluded that TSA established “by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclo- sure.” 5 U.S.C. § 1221(e)(2); see Siler v. EPA, 908 F.3d 1291, 1298 (Fed. Cir. 2018). In evaluating whether the agency would have taken the same action absent the pro- tected disclosure, the Board considers the non-exclusive Carr factors: (1) “the strength of the agency’s evidence in support of its personnel action”; (2) “the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision”; and (3) “any evidence that the agency takes similar actions against em- ployees who are not whistleblowers but who are otherwise similarly situated.” Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999). Here, the Board evaluated the Carr factors and concluded that given the multiple in- stances of rude and discourteous conduct by McPherson, which were corroborated by multiple witnesses, TSA had proven that it would have terminated him even absent the disclosures. McPherson’s arguments on appeal are largely disa- greements with the Board’s factual determinations. For example, McPherson contends that the Board failed to con- sider that (1) TSA did not take disciplinary action against

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similarly situated individuals who were not whistleblow- ers, (2) McPherson was the chief union steward and ad- dressing concerns with management was not disrespectful, and (3) TSA management gave inconsistent testimony. But the Board addressed each of these contentions and ex- plained in considerable detail why it rejected these claims. We conclude that the Board’s findings were supported by substantial evidence. McPherson also argues that the Board erred by deny- ing him the opportunity to re-cross examine certain wit- nesses and by refusing to allow additional witness testimony. We have previously stated that the “determi- nation to allow or exclude witness testimony is within the sound discretion of the administrative judge.” Guise v. Dep’t of Justice, 330 F.3d 1376, 1379 (Fed. Cir. 2003). Here, the Board considered in-depth testimony from numerous witnesses regarding each event relevant to this case. The Board was therefore well within its discretion to limit ad- ditional witness examination and testimony. Finally, McPherson contends that the Board was bi- ased against him, but he has not satisfied the high stand- ard for showing bias based on a judge’s conduct in the course of a proceeding. See Bieber v. Dep’t of the Army, 287 F.3d 1358, 1362 (Fed. Cir. 2002). AFFIRMED COSTS No costs.