                     NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                     2009-3135

                            KENNETH M. PEDELEOSE,

                                                            Petitioner,

                                          v.

                           DEPARTMENT OF DEFENSE,

                                                            Respondent.


      Kenneth M. Pedeleose, of Marietta, Georgia, pro se.

       Michael N. O’Connell, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
him on the brief were Michael F. Hertz, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Todd M. Hughes, Deputy Director.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                      2009-3135


                             KENNETH M. PEDELEOSE,

                                                            Petitioner,

                                           v.

                            DEPARTMENT OF DEFENSE,

                                                            Respondent.


   Petition for review of the Merit Systems Protection Board in AT0752060350-R-1.



                           DECIDED: August 6, 2009



Before RADER, PLAGER, and SCHALL, Circuit Judges.

PER CURIAM.

                                     DECISION

      Kenneth M. Pedeleose petitions for review of the final decision of the Merit

Systems Protection Board (“Board”) that (1) affirmed his thirty-day suspension for

refusal to cooperate in an agency investigation, insubordination, and failure to follow

instructions; and (2) rejected his allegation that his suspension was in retaliation for

whistleblowing and, thus, in violation of the Whistleblower Protection Act (“WPA”).

Pedeleose v. Dep’t of Defense, 110 M.S.P.R. 508 (2009) (“Final Decision”). We affirm.
                                    DISCUSSION

                                           I

       Mr. Pedeleose is an industrial engineer at the Defense Contract Management

Agency (“DCMA”), Lockheed Martin Marietta (“LMM”) facility. The circumstances giving

rise to his thirty-day suspension began around June of 2005, when Mr. Pedeleose

informed another DCMA employee, Gerry Sawyer, that management was planning on

firing her. Immediately thereafter, Ms. Sawyer, “sickened” to hear that she was being

fired after twenty-six years of Federal service, informed her supervisor that she had

decided to retire in order to avoid being fired, and she submitted her retirement

application. The DCMA LMM commander, Colonel Nicole Plourde, learned about Ms.

Sawyer’s application for retirement, as well as the circumstances that had prompted the

application. Colonel Plourde assured Ms. Sawyer that she had not been targeted for

removal.

       Colonel Plourde also learned about rumors concerning the termination of other

DCMA employees. She became concerned that these rumors could affect the morale

of the employees at the facility and that one of her supervisors was spreading the

rumors by disclosing confidential information.   Because of these concerns, Colonel

Plourde decided to start an investigation and appointed Stacey Scantlebury to conduct

the investigation.

       After being appointed, Ms. Scantlebury met with Mr. Pedeleose and attempted to

interview him.   Before Ms. Scantlebury was able to ask a question, however, Mr.

Pedeleose questioned the authenticity of her credentials and refused to comply with the

investigation. Responding, Colonel Plourde showed Mr. Pedeleose the letter appointing




2009-3135                                 2
Ms. Scantlebury and also gave him a letter directing him to cooperate with the

investigation. In spite of Colonel Plourde’s direct orders, Mr. Pedeleose continued to be

uncooperative and refused to answer Ms. Scantlebury’s questions.

       As a result of his behavior, DCMA suspended Mr. Pedeleose for thirty-days for

refusal to cooperate with an investigation, insubordination, and failure to follow

instructions.   Mr. Pedeleose appealed his suspension to the Board.            While Mr.

Pedeleose did contest the propriety of his suspension, he did not dispute the events that

occurred when Ms. Scantlebury attempted to interview him. Rather, Mr. Pedeleose

argued that he was justified in refusing to cooperate. In addition, he contended that

DCMA did not suspend him for failure to cooperate, but instead did so in retaliation for

his prior whistleblowing and, thus, violated the WPA.

       In due course, the Board found that the agency had proven its charges against

Mr. Pedeleose and sustained his thirty-day suspension.         See Final Decision, 110

M.S.P.R. at 518. In so ruling, the Board explained that Mr. Pedeleose’s justifications for

disobeying Colonel Plourde’s orders did not satisfy the narrow exceptions to the rule

that government employees generally cannot disregard an order from a superior. Id. at

517-18. Furthermore, the Board ruled that DCMA had not violated the WPA when it

suspended Mr. Pedeleose.       Id. at 518-20.    Mr. Pedeleose now appeals the Final

Decision. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                            II

       Our scope of review in an appeal from a decision of the Board is limited.

Specifically, we must affirm the Board’s decision unless we find it to be (1) arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained




2009-3135                                   3
without procedures required by law, rule, or regulation having been followed; or (3)

unsupported by substantial evidence. 5 U.S.C. § 7703(c); Kewley v. Dep’t of Health &

Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).

      On appeal, Mr. Pedeleose argues that the Board erred in sustaining his thirty-day

suspension and in finding that DCMA did not suspend him in violation of the WPA. He

does not, however, contest that he disobeyed several clear orders of Colonel Plourde

directing him to cooperate with her investigation. Nor does he argue that the thirty-day

suspension was an unreasonable penalty. Rather, as best we can tell, Mr. Pedeleose

contends that he was justified in refusing to comply with the investigation because the

investigation was somehow illegal.      Next, Mr. Pedeleose suggests that, because

DCMA’s suspension was actually in retaliation for prior whistleblowing, the Board erred

regarding his WPA defense.      Specifically, Mr. Pedeleose states that the protected

disclosures that caused his thirty-day retaliatory suspension were his disclosures to the

Inspector General of the Department of Defense (“IG”) that: (1) another DCMA

employee, Susan VanDerbeck, was targeted for termination because she engaged in

whistleblowing and (2) there were numerous problems in a project run by DCMA.

      We address Mr. Pedeleose’s arguments in turn.

                                           III

                                           A

      Because the Board’s decision regarding the charges against Mr. Pedeleose is

supported by substantial evidence and otherwise in accordance with law, we affirm its

decision sustaining the agency’s charges against him.        Importantly, as mentioned

above, Mr. Pedeleose does not dispute the facts surrounding Ms. Scantlebury’s




2009-3135                                  4
attempts to interview him for purposes of Colonel Plourde’s investigation. Indeed, it is

quite clear that Mr. Pedeleose flatly refused to answer any of Ms. Scantlebury’s

questions, doubted her authority as an investigator, and was wholly uncooperative.

This was in the face of Colonel Plourde’s repeated instructions to cooperate and her

showing him the letter granting investigative authority to Ms. Scantlebury. Thus, it is

clear that there is substantial evidence supporting the agency’s charges of refusal to

cooperate with an investigation, insubordination, and failure to follow instructions.

       Although Mr. Pedeleose argues that he was justified in refusing to cooperate with

the investigation, the Board properly found those arguments unavailing.                 Absent

exceptional circumstances, government employees generally cannot refuse to do work

simply because they disagree with a superior and, consequently, failing to comply with

their duties is done at the risk of insubordination. See Nagel v. Dep’t of Health &

Human & Servs., 707 F.2d 1384, 1387 (Fed. Cir. 1983).             The evidence of record

substantiates that the investigation was never found to violate any law or regulation.

See Bigelow v. Dep’t of Health & Human Servs., 750 F.2d 962, 966 (Fed. Cir. 1984)

(sustaining a disciplinary action for refusing to obey a supervisor because the instruction

“was not unlawful on its face [and] not a clear and direct violation of a provision”). In

fact, it would be extremely difficult—if not impossible—for Mr. Pedeleose to accurately

determine the legality of the investigation, as he did not even give Ms. Scantlebury the

opportunity to ask him a single substantive question. As such, Mr. Pedeleose had

nothing more than an unsupported subjective belief that the investigation was illegal,

which is wholly insufficient for an exception to the general rule above. See id. at 965

(“[T]he orders the petitioners refused to obey were lawful, and the petitioners could not




2009-3135                                    5
disobey the orders because of their own view of the legality or propriety of the

direction.”). Moreover, after asking the IG whether the investigation was illegal or in

conflict with other ongoing investigations, the IG clearly and explicitly told Mr. Pedeleose

to both comply with Colonel Plourde’s requests and answer Ms. Scantlebury’s

questions.

       In sum, the Board’s decision regarding the charges against Mr. Pedeleose is

supported by substantial evidence and otherwise in accordance with law. We therefore

affirm its decision sustaining the charges against Mr. Pedeleose.

                                              B

       We now turn to Mr. Pedeleose’s contention that the Board erred when it ruled

that he had not established reprisal for whistleblowing. Pursuant to 5 U.S.C. § 2302(b),

the WPA requires proof of four elements: (1) the acting official has the authority to take,

recommend, or approve any personnel action; (2) the aggrieved employee made a

protected disclosure; (3) the acting official used his authority to take, or refuse to take, a

personnel action against the aggrieved employee; and (4) the acting official took, or

failed to take, the personnel action against the aggrieved employee because of the

protected disclosure. See Lachance v. White, 174 F.3d 1378, 1380 (Fed. Cir. 1999).

The employee must establish “by a preponderance of the evidence that [he or she]

made a protected disclosure, that subsequent to the disclosure [he or she] was subject

to disciplinary action, and that the disclosure was a contributing factor to the personnel

action taken against [them].” Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1322 (Fed. Cir.

1999). If the employee makes the requisite showing, there is still no violation of the




2009-3135                                     6
WPA if the agency can “prove by clear and convincing evidence that it would have

taken the same personnel action in the absence of the protected disclosure.” Id.

      Addressing first Mr. Pedeleose’s disclosure to the IG relating to Ms. VanDerbeck,

we hold that substantial evidence supports the Board’s decision that this was not a

protected disclosure. In order to establish a protected disclosure, the whistleblower

must have a reasonable belief that a law, rule, or regulation has been violated. See,

e.g., Lachance, 174 F.3d at 1381 (requiring consideration of whether a “disinterested

observer with knowledge of the essential facts known to and readily ascertainable by

the employee” would reasonably conclude that a violation occurred); Horton v. Dep’t of

the Navy, 66 F.3d 279, 283 (Fed. Cir. 1995) (requiring “that the whistleblower had a

reasonable belief that, for example, a rule or regulation had been violated”).       Mr.

Pedeleose’s belief that a violation occurred—namely, that Ms. VanDerbeck was

targeted for termination because of her whistleblowing about safety issues—was not

reasonable, however. Rather, it was his purely subjective perspective, which he was

even told was misguided.     See Lachance, 174 F.3d at 1381 (“A purely subjective

perspective of an employee is not sufficient even if shared by other employees.”).

      For example, Mr. Pedeleose learned of Ms. VanDerbeck’s potential termination

from a former DCMA employee, DeAngeles Davis. Ms. Davis did not learn of this

information directly, but instead learned of it from another employee, Ms. Shelton-

Thomas. Ms. Shelton-Thomas, in turn, merely heard about a meeting attended by

Colonel Plourde and other employees where Ms. VanDerbeck’s termination was

allegedly discussed. Thus, the record evidence demonstrates that this information was

nothing more than highly attenuated gossip. More significantly, Ms. Davis not only told




2009-3135                                  7
Mr. Pedeleose about this entire “chain” of gossip, but also that any discussion of

terminating Ms. VanDerbeck was due to her inappropriate conduct affecting DCMA’s

relationship with LMM employees, not due to her whistleblowing.       In sum, there is

substantial evidence that Mr. Pedeleose knew this information was highly suspect and

that he was explicitly told that Ms. VanDerbeck’s potential termination was not because

of whistleblowing. Mr. Pedeleose’s belief to the contrary was therefore not reasonable

and, thus, the Board was correct to find that he did not make a protected disclosure

concerning Ms. VanDerbeck’s potential termination.

       Regarding the report that Mr. Pedeleose provided to the IG concerning alleged

problems in a program run by DCMA, assuming without deciding that this was a

protected disclosure, we affirm the Board’s decision that there was clear and convincing

evidence that the agency would have suspended Mr. Pedeleose regardless. The Board

correctly considered the substantial record evidence and applied the relevant factors,

such as: the strength of the evidence supporting suspension; the existence and strength

of any motive by DCMA officials to retaliate; and DCMA’s actions against non-

whistleblowers who were otherwise similarly situated. See Carr, 185 F.3d at 1323.

Importantly, the evidence submitted in support of the charge of insubordination and

refusal to cooperate with a duly authorized agency investigation was substantial and

largely undisputed. In addition, while Mr. Pedeleose argues that similarly situated non-

whistleblowers were not suspended, he overlooks a critical distinction—those

employees did in fact cooperate with the investigation and, therefore, were in no way

“similarly situated.”   Thus, we cannot say the Board’s decision is unsupported by

substantial evidence or otherwise not in accordance with law.




2009-3135                                  8
      We have considered Mr. Pedeleose’s other arguments, but found them

unpersuasive.

      For the foregoing reasons, the final decision of the Board is affirmed.

      No costs.




2009-3135                                  9
