                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                       ________________________            FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-14048         ELEVENTH CIRCUIT
                                                        MAY 25, 2010
                         ________________________
                                                         JOHN LEY
                                                           CLERK
                       D. C. Docket No. 06-00002-CV-4

PETER F. A. BROWN,

                                                              Plaintiff-Appellant,

                                     versus

SECRETARY JANET NAPOLITANO,
Department of Homeland Security,
DEPARTMENT OF HOMELAND SECURITY,
UNITED STATES OF AMERICA

                                                           Defendants-Appellees.

                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Georgia
                       _________________________

                                (May 25, 2010)

Before BLACK, HULL and ANDERSON, Circuit Judges.

PER CURIAM:

     Plaintiff Peter Brown appeals the district court’s grant of summary judgment
in favor of Defendant Janet Napolitano, Secretary, Department of Homeland

Security on his Title VII retaliation claim and his non-discrimination civil service

claims. On appeal, Brown argues that genuine questions of material fact remain on

the issue of causation for his Title VII retaliation claim and that genuine questions

of material fact on the issue of pretext preclude summary judgment. He also argues

that summary judgment on his non-discrimination civil service claims should be

reversed because evidence does not support the charges underlying his dismissal,

the administrative judge erred in dismissing his affirmative defense based on

whistleblowing, the administrative judge erred in dismissing his affirmative

defense under 5 U.S.C. § 2302(b)(9)(D), the failure to conduct a proper

investigation before his removal was harmful procedural error, and the

administrative judge improperly excluded witnesses and improperly weighed

mitigating factors.

      After reading the parties’ briefs, carefully reviewing the record, and having

had the benefit of oral argument, we discern no reversible error and affirm.

                                  I. DISCUSSION

      We review an order granting summary judgment de novo, applying the same

legal standards that bound the district court and viewing all facts and reasonable

inferences in the light most favorable to the nonmoving party. Callahan v. Point

                                          2
Clear Holdings, Inc., 579 F.3d 1207, 1212 (11th Cir. 2009). In a mixed case such

as this, the standard of review on the discrimination claim is de novo, but all other

non-discrimination claims are subject to the arbitrary and capricious standard.

Kelliher v. Veneman, 313 F.3d 1270, 1275 (11th Cir. 2002). Specifically,

non-discrimination claims should be reviewed on the record and the agency action

set aside if the agency’s action, findings, or conclusions are: “(1) arbitrary,

capricious, an abuse of discretion, 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 evidence.” 5 U.S.C. § 7703(c).

      A.     Title VII Retaliation

      Brown argues that the district court erred in granting summary judgment

against him with respect to his Title VII retaliation claim. We have carefully

considered plaintiff’s numerous arguments in this regard, and the relevant parts of

the record. The crucial issue is whether or not Brown adduced sufficient evidence

to create a genuine issue of material fact with respect to causation. Because

plaintiff’s numerous challenges to the independence of Armstrong are wholly

unpersuasive, we agree with the district court that Armstrong’s independent

evaluation of the evidence before him breaks the causal chain and insulates the

decision from the retaliatory animus which the district court assumed on the part of

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Clements and the other parties who recommended terminating Brown. See

Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1250 (11th Cir. 1998)

(“When the employer makes an effort to determine the employee’s side of the story

before making a tangible employment decision affecting that employee, however, it

should not be held liable under Title VII for that decision based only on its

employee’s hidden discriminatory motives.”). Brown adduced no evidence from

which a reasonable jury could find that Armstrong harbored any retaliatory animus

against plaintiff. Indeed, Armstrong did not even know about plaintiff’s EEO

activities until plaintiff himself so advised Armstrong during his hearing before

Armstrong.

      Brown’s argument that the presumption of pretext granted by the district

court as a result of the spoliation of certain evidence precludes summary judgment

on his retaliation claim is without merit. In granting a rebuttable presumption of

pretext, the district court specifically reserved the question of whether Brown had

established a prima facie case of retaliation. Thus, that presumption, standing

alone, does not establish the causation element of a prima facie case of retaliation.

Moreover, we note that the district court did not pigeonhole evidence into different

inquiries. The district court considered all evidence relevant to the question of

causation, regardless of whether it was also relevant to pretext or any other element

                                          4
the claim, and concluded that Brown had not established the causation element of

his prima facie case. After thorough review, we agree.1

       B.      Non-discrimination Civil Service Claims

       1. Evidence Supporting the Charges Against Him

       Brown argues that insufficient evidence supports the charges against him of

insubordination and inappropriate conduct. We disagree. With regards to

insubordination, the record establishes that Brown received a memo from his

superiors ordering him to stop commenting on his qualifications on his lab reports,

and that after receiving this memo, Brown still wrote “see memo” on several

reports. In order to establish insubordination, an agency must show a willful

refusal to obey an order of a superior that the employee was not entitled to disobey.

Fleckenstein v. Dep’t of Army, 63 M.S.P.R. 470, 473 (1994). We find eminently

reasonable the AJ’s conclusion that by writing “see memo” Brown intended to

continue to communicate his belief regarding his qualifications. Thus, Brown

disobeyed an order. Brown has failed to establish that he was entitled to disobey

this order. With regards to inappropriate conduct, the record establishes that

Brown sent an email questioning whether one of his superiors was “in a coma” or



       1
               The district court did not abuse its discretion in refusing to strike the declarations
of Cipolla and Pignone.

                                                   5
had been “led down a garden path.” Again, we find the AJ’s determination to be

reasonable – i.e., that Brown’s using a disrespectful tone, even assuming Brown

was voicing legitimate complaints, was inappropriate conduct. In light of the

foregoing, we conclude that the determination that Brown was insubordinate and

engaged in inappropriate conduct was not arbitrary and capricious and was

supported by substantial evidence.

             2. Affirmative Defense of Whistleblowing

      Brown next argues that his dismissal was in retaliation for certain protected

whistleblowing disclosures. Under 5 U.S.C. § 2302(b)(8)(A)(i), the agency cannot

take a personnel action against an employee because of “any disclosure of

information by an employee . . . which the employee . . . reasonably believes

evidences -- (i) a violation of any law, rule, or regulation.” In order to prevail on a

whistleblower claim, the claimant must establish that he made a disclosure

protected by 5 U.S.C. § 2302(b)(8) and that disclosure was a contributing factor in

the personnel action being appealed. 5 U.S.C. § 1221(e)(1); 5 C.F.R. § 1209.7(a).

Even if the claimant meets that burden, however, corrective action is not necessary

if the agency can show by clear and convincing evidence that it would have taken

the same personnel action in the absence of the disclosure. 5 U.S.C. § 1221(e)(2);

5 C.F.R. § 1209.7(b); see also Horton v. Dep’t of Navy, 66 F.3d 279, 283-84 (Fed.

                                           6
Cir. 1995). The same action inquiry focuses on: “(1) the strength of the evidence

supporting the 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 employees who are

not whistleblowers, but otherwise similarly situated.” Larson v. Dep’t of Army, 91

M.S.P.R. 511, 515 (2002); see Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed.

Cir. 1999) (approving of three-factor inquiry).

      We affirm the district court’s judgment upholding the agency’s rejection of

Brown’s affirmative defense of whistleblowing. Brown was terminated on the

basis of his “see memo” notes on the worksheets or cover sheets related to his lab

reports. Although the forums below have assumed that plaintiff’s notations were

protected under the whistleblower provisions, we conclude that the notations are

not protected at all. It is clear that the “see memo” notations cannot constitute the

required “disclosure.” It is not likely that anyone other than the management which

the notations were intended to criticize would have access to the notations and the

memo referenced. However, in any event, the notations cannot constitute the

required “disclosure,” because they disclose nothing except to the supervisors to

whom Brown was being insubordinate.

             3. Affirmative Defense Under 5 U.S.C. § 2302(b)(9)(D)

                                          7
      Brown next argues that his dismissal was improper because Clements’ order

required him to violate the law. Under 5 U.S.C. § 2302(b)(9)(D), an agency cannot

take a personnel action against an employee “for refusing to obey an order that

would require the individual to violate a law.” Brown’s argument that Clements’

order required him to violate the law is wholly unpersuasive. Because Brown has

failed to show that following Clements’ order required him to violate any law, he is

due no protection under this section.

             4. Harmful Procedural Error

      Brown also argues that the agency failed to perform an independent fact

finding investigation as required by its policies and that such failure was harmful

procedural error. An agency’s decision may not be sustained if the employee

“shows harmful error in the application of the agency’s procedures in arriving at

such decision.” 5 U.S.C. § 7701(c)(2)(A). Harmful error is defined as: “Error by

the agency in the application of its procedures that is likely to have caused the

agency to reach a conclusion different from the one it would have reached in the

absence or cure of the error. The burden is upon the appellant to show that the error

was harmful, i.e., that it caused substantial harm or prejudice to his or her rights.”

5 C.F.R. § 1201.56(c)(3). After reviewing the record, we conclude that the agency

did not err in its application of the relevant procedure contained in “A Guide to

                                           8
Good Conduct and Discipline Process.” Moreover, even assuming any error in the

application of the procedure, Brown has failed to convince us that such error was

harmful in that it led to a different conclusion than would have been reached

otherwise. The evidence underlying the charges against him was plainly captured

in documentary form, and Brown has failed to establish that further fact finding

would have uncovered evidence defeating either of the charges. Thus, the

determination that the agency did not commit harmful procedural error is supported

by substantial evidence and is not arbitrary and capricious.

             5. Exclusion of Witnesses

      Brown next argues that the AJ abused its discretion by excluding three

witnesses. We disagree. The facts these witnesses proposed to testify to were

either (1) already presumed in Brown’s favor by the AJ or (2) irrelevant to the

determinations at hand. Thus, the AJ did not abuse its discretion in excluding the

witnesses.

             6. Improper Weighing of Douglas2 Factors

      Brown finally argues that the AJ improperly weighed the Douglas factors

when reviewing the agency’s decision to terminate him. This argument is without

merit. The record establishes that the AJ considered the relevant Douglas factors in


      2
             Douglas v. Veterans Admin., 5 MSPR 280 (1981).

                                           9
its review of the agency’s decision.

                                 II. CONCLUSION

      Based on the foregoing, the judgment of the district court is

      AFFIRMED.




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