                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JAMES V. COULTER, III,                          DOCKET NUMBER
                   Appellant,                        SF-1221-12-0271-B-2

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: June 15, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL *

           James V. Coulter, III, East Lansing, Michigan, pro se.

           Jere Diersing, and Jessica Langley-DeGroot, San Diego, California, for the
              agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the remand initial decision,
     which denied his request for corrective action in his individual right of action
     (IRA) appeal.     Generally, we grant petitions such as this one only when: the
     remand initial decision contains erroneous findings of material fact; the remand


     *
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     initial decision is based on an erroneous interpretation of statute or regulation or
     the erroneous application of the law to the facts of the case; the judge’s rulings
     during either the course of the appeal or the remand initial decision were not
     consistent with required procedures or involved an abuse of discretion, and the
     resulting error affected the outcome of the case; or new and material evidence or
     legal argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review and AFFIRM
     the remand initial decision except as expressly MODIFIED by this Final Order.
     Specifically, we find that the administrative judge mistakenly failed to address
     two of the appellant’s disclosures, and we find that both disclosures are protected
     but that the appellant failed to establish that they were a contributing factor in a
     personnel action. We DENY the appellant’s request for corrective action as to
     these two disclosures.
¶2        The agency terminated the appellant from his position during his
     probationary period      for alleged   unacceptable   performance.      Coulter   v.
     Department of the Navy, MSPB Docket No. SF-1221-12-0271-W-1, Initial Appeal
     File (IAF), Tab 9 at 14-16. The appellant filed an appeal in which he contended
     that the termination constituted reprisal for whistleblowing. IAF, Tab 1 at 7-14.
     After a hearing, the administrative judge denied the appellant’s request for
     corrective action. IAF, Tab 31, Initial Decision (ID). The administrative judge
     found that four of the appellant’s disclosures (those in which he reported safety
     concerns) were not protected under Huffman v. Office of Personnel Management,
     263 F.3d 1341 (Fed. Cir. 2001), superseded by statute, Whistleblower Protection
     Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat. 1465, as recognized in
     Natsuti v. Merit Systems Protection Board, 504 F. App’x 894 (Fed. Cir. 2013),
                                                                                       3

     because they were made through the chain of command in the normal
     performance of his duties. ID at 6-10. The appellant petitioned for review, and
     the Board vacated the initial decision and remanded the appeal because the
     administrative judge’s reasoning was no longer tenable after the Board’s issuance
     of Day v. Department of Homeland Security, 119 M.S.P.R. 589 (2013).             See
     Coulter v. Department of the Navy, MSPB Docket No. SF-1221-12-0271-W-1,
     Remand Order (Aug. 21, 2013) (Remand Order).
¶3           On remand, the appellant indicated that he did not want a supplemental
     hearing, and the administrative judge accepted documentary evidence and
     argument into the record. Coulter v. Department of the Navy, MSPB Docket No.
     SF-1221-12-0271-B-1, Remand File, Tabs 3-5.          After considering the parties’
     submissions, the administrative judge found that the appellant failed to show that
     one of his disclosures was protected. Coulter v. Department of the Navy, MSPB
     Docket No. SF-1221-12-0271-B-2, Remand Initial Decision (RID) at 5-6
     (Dec. 10, 2014). She further found that the remaining disclosures were protected
     but the appellant did not show that they were a contributing factor in a personnel
     action.    RID at 5, 7-11.     She found that, even if the appellant had shown
     contributing factor, the agency showed by clear and convincing evidence that it
     would have taken the same action absent any disclosures. RID at 11-17.
     Five of the appellant’s six disclosures are protected.
¶4           In order to establish a prima facie case under the Whistleblower Protection
     Act (WPA), the appellant must prove by preponderant evidence that he made a
     protected disclosure and that the disclosure was a contributing factor in a
     personnel action. McCarthy v. International Boundary and Water Commission,
     116 M.S.P.R. 594, ¶ 29 (2011), aff’d, 497 F. App’x 4 (Fed. Cir. 2012), cert.
     denied, 134 S. Ct. 386 (2013).      A protected disclosure is a disclosure that an
     appellant reasonably believes evidences, as relevant here, a violation of law, rule,
     or regulation, or a substantial and specific danger to public health or safety. Id.,
     ¶ 34.
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¶5        The appellant originally raised six disclosures in his IRA appeal, four
     concerning safety issues, one concerning overtime (disclosure 5) and another
     about wasting time (disclosure 6). IAF, Tab 22 at 4. The administrative judge
     adjudicated all six disclosures during the initial proceeding and implicitly found
     that disclosures 5 and 6 were protected and that the appellant failed to establish
     that they were a contributing factor in a personnel action. See ID at 12-14. The
     appellant petitioned for review and, because the administrative judge’s analysis
     was no longer viable because of Day, 119 M.S.P.R. 589, the Board was able to
     resolve the petition for review without any discussion of the content of the
     disclosures. See Remand Order at 2-3. For the sake of simplicity, the Board
     referred to the disclosures collectively as “safety disclosures” even though
     disclosures 5 and 6 were unrelated to safety.
¶6        It appears that the administrative judge interpreted the remand order to
     require her to adjudicate only those four disclosures relating to safety. Because
     our remand order vacated the initial decision, the administrative judge’s findings
     concerning disclosures 5 and 6 were voided. The result of this confusion is that
     the appellant does not have a Board ruling on that portion of his appeal dealing
     with disclosures 5 and 6.
¶7        Although the appellant does not explicitly allege on review that the
     administrative judge erred by not considering those disclosures, we find that he
     did not intend to abandon those disclosures because he mentions throughout the
     proceedings on remand that there were six disclosures. See, e.g., MSPB Docket
     No. SF-1221-12-0271-B-2, Refiled Remand File (B-2 File), Tab 5 at 4, 7.
     Because there already has been a hearing at which the appellant presented
     evidence and argument concerning disclosures 5 and 6, we find that the record is
     fully developed as to these disclosures and that it is appropriate for us to resolve
     them without a remand. Moreover, we agree with the administrative judge that
     the appellant has established that disclosures 1-3 were protected and we further
     find that disclosures 5 and 6 were protected as well.
                                                                                         5

¶8         However, the administrative judge found that the appellant’s fourth
      disclosure, concerning wooden pallets on a sidewalk, was not protected. On the
      day in question, the appellant’s supervisor directed the appellant to place wooden
      pallets over a flooded sidewalk so pedestrians could use the sidewalk without
      having to walk in standing water.       The appellant refused to place the pallets
      because, from his point of view, the pallets themselves were a safety risk. He
      contends that, by refusing to obey instructions to place the pallets and reporting
      the matter to higher-level management, he disclosed a serious safety issue. B-2
      File, Tab 3 at 5, Tab 5 at 5-6; Coulter v. Department of the Navy, MSPB Docket
      No. SF-1221-12-0271-B-2, Petition for Review (PFR) File, Tab 1 at 8-11. The
      administrative judge found that the appellant failed to show that he had a
      reasonable belief that the pallets posed a substantial and specific danger to public
      health or safety. RID at 5-6.
¶9         Disclosures regarding danger to the public health or safety must be both
      substantial and specific to be protected.     Miller v. Department of Homeland
      Security, 111 M.S.P.R. 312, ¶ 6 (2009). A disclosure of a speculative danger
      does not meet this test. Id. Factors to be considered in determining whether a
      disclosed danger is sufficiently substantial and specific to be protected include
      whether a substantial, specific harm was identified and whether the evidence
      supported a finding that the harm already had been realized or was likely to result
      in the reasonably foreseeable future. Chambers v. Department of the Interior,
      602 F.3d 1370, 1376 (Fed. Cir. 2010).
¶10        The appellant alleges on review that the administrative judge improperly
      discounted the risk posed by the pallets and overemphasized the fact that it was
      temporary. PFR File, Tab 1 at 8-11. He avers the agency had better options for
      mitigating the hazard posed by the standing water. The Board’s role is not to
      decide whether the agency made the best choice, but whether a reasonable person
      in the appellant’s position would believe, not merely that the matter was a safety
      hazard, but that it posed a substantial and specific risk to public health or safety.
                                                                                        6

      See Swanson v. General Services Administration, 110 M.S.P.R. 278, ¶ 10 (2008)
      (the reasonable belief test is an objective test; the appellant must show that a
      disinterested observer with knowledge of the essential facts known to and readily
      ascertainable by the appellant, could reasonably conclude that that actions of the
      agency evidenced one of the categories on wrongdoing covered under the WPA).
¶11        In Chambers, the Federal Circuit found that the appellant disclosed a
      substantial and specific danger to public health or safety when she disclosed that
      a reduction in the number of police officers available resulted in more traffic
      accidents because the risk was specific, i.e., an increase in traffic accidents, and
      substantial rather than speculative because the risk had already occurred.
      Chambers, 602 F.3d at 1379. Similarly, in Aquino v. Department of Homeland
      Security, 121 M.S.P.R. 35 (2014), and Miller, the appellants disclosed that
      changes in airport screening and crowd management procedures led to a greater
      risk of a breach of security.     The Board found that these disclosures were
      substantial and specific because the consequences of the risks identified in the
      disclosures could result in devastating and obvious harm. Aquino, 121 M.S.P.R.
      35, ¶¶ 14-17; Miller, 111 M.S.P.R. 312, ¶¶ 15-19. Here, however, the appellant
      has presented no evidence as to whether the risk of falling on the pallets was
      substantial and specific; he merely relies on the common sense proposition that
      sometimes people fall and sometimes falls are serious. At best, therefore, the
      appellant has identified a potential future danger to public safety that has not
      been shown to be substantial, that could possibly lead to an injury that may or not
      be serious, and that was intended to be (and actually was) a temporary
      remediation of a more serious safety hazard. Consequently, the administrative
      judge correctly found that the appellant’s fourth disclosure was not protected.
      The appellant did not establish that his protected disclosures were a contributing
      factor in his termination.
¶12        When reviewing the merits of an IRA appeal, the Board considers whether
      the appellant has shown by preponderant evidence that he made a protected
                                                                                        7

      disclosure that was a contributing factor in an agency’s personnel action. Aquino,
      121 M.S.P.R. 35, ¶ 10. A protected disclosure is a contributing factor if it affects
      an agency’s decision to take a personnel action in any way.              Dorney v.
      Department of the Army, 117 M.S.P.R. 480, ¶ 14 (2012).           An employee can
      demonstrate that a disclosure was a contributing factor through circumstantial
      evidence, such as evidence that the official taking the personnel action knew of
      the disclosure and that the personnel 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. Id. An appellant also can show that a protected
      disclosure was a contributing factor in a personnel action by proving that the
      official taking the action had constructive knowledge of the protected disclosure.
      Id., ¶ 11. An appellant may establish constructive knowledge by demonstrating
      that an individual with actual knowledge of the disclosure influenced the official
      accused of taking the retaliatory action. Id.
¶13        Here, the appellant alleges that the deciding official had constructive
      knowledge of his three safety disclosures, one concerning a violation of lock-out-
      tag-out procedures, the second concerning a door that did not latch properly, and
      the third concerning an exposed steam vent pipe. He contends that the managers
      to whom he made his disclosures would have informed the deciding official about
      them during one or more of the regular management meetin gs. B-2 File, Tab 3
      at 8. He also argues that the nature of the deciding official’s position “mandates
      that he know these things.” PFR File, Tab 1 at 8. There is no dispute that the
      deciding official knew that someone had reported the safety issues the appellant
      disclosed, but there is no evidence either that he knew who made the disclosures
      or that he was aware of disclosures 5 and 6. See IAF, Tab 21 at 6-9.
¶14        The appellant asserts on review that the deciding official had a duty to find
      out who made the disclosures and thus, he must have known it was the appellant
      who made the disclosures at issue here. PFR File, Tab 1 at 6-7. He offers no
      support for his belief that the deciding official had a duty to find out who made
                                                                                        8

      the disclosures.    It is unlikely under the circumstances of this case that the
      deciding official would inquire into who made the disclosures because all three
      protected disclosures involved long-term and well-known issues that others had
      reported before the appellant. The lock-out tag-out problem was a recurring issue
      amounting to contractor negligence in safely securing an incomplete electrical
      project to prevent potential electrocution to passersby or fire risk to the building
      in general. The appellant’s report concerned a particular incident that perhaps
      had not been reported before, but the agency’s contractors frequently fell short of
      safety standards. Hearing Compact Disc (HCD) 1 (testimony of M.M.). Upon
      receiving a report that they had yet again violated lock-out tag-out procedures, it
      seems likely that the deciding official would put his emphasis on getting the
      contractors to comply rather than on finding out who reported the problem.
¶15           Similarly, the problem with the door also was a known issue dating to the
      original installation of the door and the safety hazard was caused by a design
      flaw.    The building, however, was designated an historical building and the
      agency had to get state approval to make the changes that would have fixed the
      problem, which remains unresolved. HCD 2 (testimony of H.S.); IAF, Tab 21
      at 8.   The steam vent pipe also was a known issue and the agency frequently
      addressed the issue with temporary insulation that unfortunately did not last very
      long. HCD 2 (testimony of W.M., testimony of H.S.). However, the building was
      undergoing a major renovation that would include fixing the problem with the
      steam pipe, so less-than-ideal temporary remedies seem appropriate under the
      circumstances. Although the underlying safety issues were quite serious, none of
      the appellant’s disclosures were a surprise or had any qualities that would make
      them stand out in a crowd of other similar disclosures, and there is no reason why
      the appellant’s reports would have attracted particular hostile attention. It also
      makes sense that the appellant’s supervisor would simply tell the deciding
      official, for example, that there has been another lock-out tag-out issue without
      thinking to identify the employee who reported the problem.
                                                                                        9

¶16        The appellant further contends that the administrative judge should not have
      credited the testimony of “the two accused,” i.e., the hearing testimony of his
      supervisor and the sworn declaration of the deciding official (who was unable to
      testify for medical reasons), that the supervisor never identified the appellant as
      the source of the disclosures and the deciding official was unaware that the
      appellant was the source of the disclosures.       PFR File, Tab 1 at 5-12.      He
      contends that this evidence was self-serving and not supported by any
      documentation, which he believes the agency should have created as a matter of
      routine to document conversations, meetings, and incidents as they occur
      throughout every work day. Id. The appellant has identified no law, rule, or
      regulation to support his belief that such documentation is required. Moreover,
      the agency is not required to prove it had no knowledge of the appellant’s
      whistleblowing; the appellant has the burden of proving that the agency did have
      knowledge, or constructive knowledge.           If management’s testimony was
      self-serving and not supported by written documentation, then the appellant’s
      testimony was equally so.      We find that the administrative judge correctly
      determined that the appellant simply did not meet his burden of proof.
      The administrative judge did not abuse her discretion by considering evidence
      submitted for the first time on remand.
¶17        On remand, when the administrative judge reopened the record for further
      evidence and argument, the agency submitted the sworn declaration affidavit of
      the Deputy Public Works Officer concerning events during the relevant time
      period. B-2 File, Tab 4. Neither party had previously identified this person as a
      witness prior to the remand. It is not entirely clear whether the witness was in the
      appellant’s direct chain of command, but it is clear that he discussed the
      appellant’s future termination with the deciding official.      The administrative
      judge briefly discussed the declaration in the remand initial decision.
¶18        The appellant argues that only the content that purportedly supports his
      theory of the case should be considered. B-2 File, Tab 5 at 10; PFR File, Tab 1
                                                                                        10

      at 11. In other words, the Board should discredit the witness’s discussion of the
      safety issues that the appellant disclosed, and should disregard his statement that
      he did not know the source of the disclosures, but the Board should consider the
      declaration to the extent that it shows that management discussed the safety
      issues amongst themselves, which the appellant asserts proves constructive
      knowledge.
¶19        The information in the declaration is largely duplicative of information
      already in the record and it does not introduce any new issues. Moreover, it was
      either proper for the administrative judge to consider the declaration or it was not.
      There is no basis to exclude the declaration except for the parts that the appellant
      thinks are favorable to him. We find that the declaration is not material to the
      outcome of this case and that the administrative judge did not abuse her discretion
      by considering it.
¶20        As noted above, the appellant asserts that the declaration proves that the
      witness and the deciding official discussed the appellant’s disclosures and
      buttresses his argument that the deciding official had constructive knowledge.
      PFR File, Tab 1 at 11. This is incorrect. The declaration shows that they talked
      about the appellant’s performance and conduct, not that they talked about his
      disclosures or that they identified the disclosures with him. B-2 File, Tab 4 at 14.
      Therefore, as with disclosures 1-3, we find that the appellant failed to show that
      the deciding official had constructive knowledge of disclosures 5 and 6.
¶21        Finally, the administrative judge made the alternative finding that, even
      assuming that the appellant established that he made a protected disclosure that
      was a contributing factor in a personnel action, the agency established by clear
      and convincing evidence that it would have terminated the appellant during his
      probationary period even absent any whistleblowing.           RID at 11-17.      The
      appellant alleges on review that the administrative judge’s alternative finding is
      incorrect and he presents a fairly extensive discussion of his view of the merits of
      the termination. PFR File, Tab 1 at 12-20. Because we find that the appellant
                                                                                 11

failed to make a prima facie case of whistleblower reprisal, the administrative
judge’s findings are not necessary to the resolution of this appeal and she need
not have reached the issue. Thus, the Board has not considered the appellant’s
arguments in this regard.

                  NOTICE TO THE APPELLANT REGARDING
                     YOU R FURTHER REVIEW RIGHTS
        The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision.
        The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
        If you want to request review of the Board’s decision concerning your
claims    of   prohibited   personnel   practices   under 5   U.S.C.   § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both.    Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
                                                                                  12

      If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States     Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States Court of Appeals for the Federal
Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular
relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is
contained within the court's Rules of Practice, and Forms 5, 6, and 11.
Additional information about other courts of appeals can be found at their
respective         websites,     which      can      be      accessed         through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono for        information    regarding    pro     bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.   The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.




FOR THE BOARD:                             ______________________________
                                           William D. Spencer
                                           Clerk of the Board
Washington, D.C.
