Bussey v. United States Department of Defense

Filing 58

MEMORANDUM OPINION AND ORDER by District Judge Judith C. Herrera affirming the decision of the Merit System Protection Board dismissing Plaintiff's claim in Count III. (baw)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO

TERRY BUSSEY,
Plaintiff,
v.

No. Civ. 16-906 JCH/LF

JAMES MATTIS, Secretary of
U.S. DEPARTMENT OF DEFENSE,
Defendant.

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff Terry Bussey’s appeal (ECF No. 49) of the final
decision of the Merit System Protection Board (“MSPB”), which became final on July 11, 2016.
Administrative Judge David Brooks (“AJ Brooks” or “MSPB AJ”) affirmed the decision to remove
Mr. Bussey from his position working for the Defense Threat Reduction Agency (“DTRA”) at the
Department of Defense (“DOD”). The MSPB AJ’s decision constitutes the final action for
purposes of review of a decision of the MSPB. Plaintiff timely filed the present lawsuit on August
9, 2016. This Court previously granted summary judgment in favor of Defendant on Plaintiff’s
discrimination and retaliation claims under Title VII and ordered Defendant to file the
administrative record (“AR”) of proceedings before the MSPB consistent with Rules 16 and 17 of
the Federal Rules of Appellate Procedure. See Mem. Op. and Order 32-33, ECF No. 37. The Court,
having carefully reviewed the administrative record, the parties’ arguments in their briefs, and the
relevant law, affirms the decision of the MSPB.
I.

FACTUAL BACKGROUND

Plaintiff Terry Bussey had a lengthy career in the military and in federal service. See AR

462, 745, 1042-43. Mr. Bussey began working for the DTRA in 1999, where he was last employed
as a Logistic Management Specialist GS-11. AR 461, 1044. He had no history of disciplinary
actions taken against him during his federal employment prior to 2015. See AR 461.
Paul Collins began working for DTRA in February 2012 as a division chief of facilities
and logistics. AR 758. Mr. Collins officially became Mr. Bussey’s supervisor approximately 20122013 after the agency underwent a reorganization, and he remained so during all times when
disciplinary acts were taken against Mr. Bussey. See AR 461, 759-60, 1060.
On January 21, 2015, Mr. Collins issued Mr. Bussey a Letter of Reprimand for failure to
follow instructions, specifically for failing to submit mileage reports, as per a host tenant
agreement and as tasked by Mr. Collins, and for failing to conduct an inventory of vehicles as
required by DOD and tasked by Mr. Collins. See AR 163-65. Mr. Bussey filed a complaint with
the Defense Criminal Investigative Service (“DCIS”), an arm of the DOD Inspector General (“IG”)
on August 15, 2015. See AR 550, 740.
On August 31, 2015, Mr. Collins gave Mr. Bussey Notice of Proposed 5 Day Suspension
for conduct unbecoming a federal employee and failure to follow instructions arising from
incidents on June 11 and August 12, 2015. See AR 116-17, 716. Regarding the June 11, 2015
incident, outside contractors were to conduct an energy and safety inspection of the main
compound building, and Mr. Bussey’s duties included escorting them around the main compound.
See AR 116, 760-62, 1075. Despite receiving an advance request for inspectors to take photographs
of appropriate equipment, a security guard interrupted the inspection to inquire if the inspectors
had authority to take photographs. See AR 719, 761-64, 1077-78. Mr. Collins alleged that during
the inspection and in front of the contractors, Mr. Bussey yelled at and berated the security guard,
yelling that he [Mr. Bussey] was in charge and if he says they can have cameras here, they can

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have cameras here. See AR 116. Mr. Collins asserted in the notice of proposed suspension that he
walked up to Mr. Bussey and told him to stand down, to which Mr. Bussey responded by saying
to the effect, “fine I am done,” and then Mr. Bussey walked away. Id. Mr. Collins asserted he
followed him and told him he acted unprofessionally, to which Mr. Bussey responded that he
would no longer be building manager. Id. Mr. Collins alleged that when he said Mr. Bussey needed
to continue doing his job and finish his work escorting the inspection team, Mr. Bussey replied
that he did not have a fucking job, turned and walked away. Id.
With respect to the August 12, 2015 incident, Mr. Collins alleged that another employee
asked Mr. Bussey to change a light bulb, but Mr. Bussey responded that he needed to speak with
one of the facilities employees and that it was not his job. See AR 117. Mr. Collins stated that he
told Mr. Bussey it was his job as the building manager and asked him to change the light bulb. See
id. Mr. Bussey replied that it was not his job, and when Mr. Collins turned back to further discuss
the issue, Mr. Bussey cut him off with a raised hand and said in a loud, confrontational voice, “Sir,
with all due respect, I am having a conversation with [this other employee] and you don’t need to
be involved.” Id. Mr. Collins again directed him to change the light bulb, but Mr. Bussey did not
do so, and another facilities employee had to change the light bulbs. Id.
Mr. Bussey submitted a response on September 17, 2015, explaining his version of the
June 11 and August 12, 2015 events. See AR 170-72. He disputed that he raised his voice and was
unprofessional during the June 11th incident. See AR 170-72. Regarding the light bulb incident,
Mr. Bussey asserted he believed it was a prank. See AR 171. He did not address whether he cut
off Mr. Collins and told him he did not need to be involved. See AR 170-72. Mr. Collins rescinded
the proposed suspension on September 24, 2015, giving as his reason that during the notice period
Mr. Bussey was “involved in additional misconduct.” AR 114.

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The same day, Mr. Collins issued a Notice of Proposed 14 Calendar Days Suspension for
conduct unbecoming a federal employee, failure to comply with leave procedures, lack of candor,
and absence without leave. AR 107. In addition to the June 11 and August 12, 2015 incidents,
three new September incidents were included. See AR 107-12. According to the notice, the first
occurred on September 9, 2015, in which Mr. Collins inquired of Mr. Bussey where he had been
at 7:00 a.m. when Mr. Collins did not see him in his office. See AR 108. Mr. Collins alleged that
Mr. Bussey responded, “I don’t need to tell you,” and when Mr. Collins replied that he did, Mr.
Bussey refused to do so. Id. After Mr. Collins asked by email where he had been, Mr. Bussey
responded five days later that he had been in the bathroom and left to go to Kirtland AFB
maintenance. AR 108-09. Mr. Collins asserted that he reviewed badge entry logs that revealed Mr.
Bussey had entered the compound for the first time at 8:29 a.m., so he rejected Mr. Bussey’s
timecard showing his presence from 0630 to 1700 hours and charged him as AWOL from 06300830 hours. AR 109.
The 14-day proposed suspension was also based on Mr. Bussey’s failure to report to work
on September 10, 2015 or request leave. Id. Mr. Bussey subsequently submitted a timecard for
sick leave, but Mr. Collins rejected it and charged him as AWOL, asserting that submitting a leave
form after the fact was not in accordance with proper procedures, as sent to employees on July 20,
2015, that require an employee to telephone his employer to request leave within two hours after
the employee is scheduled to report for duty. See AR 108-09.
The third new incident began on September 16, 2015, when Mr. Collins alleged he did not
see Mr. Bussey in his office at 7 am, and the next day, when he asked Mr. Bussey where he was
the prior morning, Mr. Bussey replied in his office. AR 109. Mr. Collins asserted in the notice that
he reviewed the badge entry logs and found that on September 16, 2015, Mr. Bussey did not arrive

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until 7:16 a.m., despite having submitted a timecard showing he was present at work from 0630 to
1700 hours. AR 109. Mr. Collins charged him as AWOL from 0630 to 0715 hours. Id.
Mr. Bussey submitted a response to the proposed 14-day suspension on October 16, 2015,
in which he supplied additional facts and arguments in response to the June 11 and August 12,
2015 incidents and responded to the new allegations of violating leave procedures and being
AWOL. See AR 173-76. On November 9, 2015, Mr. Collins rescinded the proposed 14-day
suspension, stating “during the notice period [Mr. Bussey was] involved in additional misconduct.”
AR 94.
Mr. Collins issued on November 9, 2015, a Notice of Proposed Removal for conduct
unbecoming a federal employee, abusive language towards co-workers, failure to comply with
leave procedures, lack of candor, and absence without leave. AR 87. The Notice included the five
incidents described in the proposed 14-day suspension, and Mr. Collins added two new incidents
occurring on October 5 and October 21, 2015. See AR 87-93. Mr. Collins asserted in the Notice
that another employee called Mr. Bussey on October 5, 2015 for assistance in completing a
memorandum of understanding, and during the call Mr. Bussey treated him rudely, hung up on
him, and caused the employee’s project to be delayed. AR 90. Finally, Mr. Collins alleged that on
October 21, 2015, Mr. Bussey approached the drivers of a van parked outside the DTRA main
building that was filled with outside contractors and asked essentially, “What the fuck are you
doing?” Id. The drivers reported that Mr. Bussey continued to use profanity in front of the
contractors, and when advised by a driver to refrain from using profanity in front of the contractor
personnel, Mr. Bussey responded, “I’m going to kick your motherfucking ass” or words to that
effect, and asked another driver “what the fuck is his problem?” Id.
Mr. Bussey submitted a response to the proposed removal on December 4, 2015, refuting

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some of the allegations and raising issues of discrimination and retaliation. See AR 79-86. Mr.
Bussey refuted that he hung up on the employee on October 5th but admitted that he refused to
visit the employee’s office and that the call became contentious. See AR 80. Mr. Bussey also
admitted that he used foul language during the encounter with the van drivers and offered
explanations for his behavior. See AR 80-81.
In his December 4, 2015 response, Mr. Bussey also urged DTRA to compare his acts with
those of Mr. Collins, asserting that Mr. Collins’ “unscrupulous and willful acts of mismanagement,
waste, fraud, abuse of Tax payer’s dollar[s] are far more critical than any acts confronting myself.”
AR 85. Mr. Bussey further stated in his response that he had “advised Mr. Collins not to execute
actions (verbally, in writing, and copied excerpts) of DoD, JTR and Code of Federal Law.” Id. Mr.
Bussey alleged that Mr. Collins had misused credit cards, purchased unnecessary items, and
engaged in wrongful accounting practices. See AR 85-86. Mr. Bussey set forth eight detailed
incidents of Mr. Collins’ purported “gross and willful intents.” Id. Mr. Bussey stated that, after
inquiring about the legality of using a certain fund for building upgrades, Mr. Collins told him he
was treading in deep water without a paddle. AR 86. Mr. Bussey alleged that each of his efforts to
address these issues resulted in Mr. Collins being hostile toward and harassing him. Id.
Calvin Conger, Chief of the Engineering & Facilities Division, issued his Notice of
Decision on January 5, 2016, in which he removed Mr. Bussey from federal service. See AR 7275. Mr. Conger stated that the decision was made after considering all the facts, including Mr.
Bussey’s written responses and arguments he set forth in his September 17, October 16, and
December 4, 2015 memoranda. AR 72. Mr. Conger noted: “you alleged other acts of malfeasance
on the part of Mr. Collins and others at DTRA. While I take these allegations seriously and will
look into those allegations, I do not find them relevant to the misconduct that is alleged in the

6

proposal memorandum and the allegations do not mitigate your own misconduct.” AR 72.
On January 18, 2016, Plaintiff filed an MSPB Appeal of his removal. AR 1. He alleged in
his appeal that the “Agency violated Merit Systems Protection Board (Merit System Principles),
Anti-Discrimination and Anti-Retaliation/Reprisal Laws, Regulations, Rules and Policies and
Whistle Blower Protection Laws, Regulations Rules and Polices in effecting this removal.” AR 4.
The MSPB AJ ordered Appellant Bussey to submit a statement of facts and issues, including any
and all defenses. See AR 40-42. He specifically ordered Mr. Bussey to identify, as to his claim of
violation of the Whistleblower Protection Laws, (a) the date, substance and recipients of the
protected disclosure, (b) whether the disclosure constitutes a violation of law, rule, regulation,
gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial danger to the
public; (c) whether the proposing and/or deciding official knew of the disclosure; and (d) how it
was a contributing factor in the agency’s decision. AR 42. After appellant failed to file a timely
submission, AJ Brooks entered a subsequent order on February 17, 2016. See AR 193-94. AJ
Brooks clarified that he expected “the appellant to identify any and all protected disclosures he is
alleging to have contributed to the agency’s action removing him; mere examples will not suffice.
The appellant’s response must be exhaustive; any disclosures not clearly identified in a responsive
list in tonight’s response will be deemed waived absent a motion to amend with good cause
shown.” AR 195.
Mr. Bussey filed his submission in response to the order. See AR 198-212. With respect to
his Whistleblower Protection Act claims, Mr. Bussey set forth his August 15, 2015 Memorandum
to DOD Inspector General. See AR 205-211. He asserted: “Following his submission of this
‘whistleblower’ memorandum, the acts of retaliation and reprisal detailed above took place,
culminating in Appellant’s removal.” AR 210. His submission did not include allegations that he

7

was retaliated against because of his informal complaints to Mr. Collins or because of his
complaints against Mr. Collins set forth in his December 4, 2015 response. See AR 207-11.
On February 24, 2016, AJ Brooks entered a Supplemental Notice of Information to Include
in Prehearing Submissions in which he set forth his understanding of the claims and defenses. See
AR 213-28. With respect to the retaliation claims, AJ Brooks stated: “I find he is also alleging
retaliation for making a report to the Inspector General on August 15, 2015, and for testifying at
the Board hearing…. Those are the only affirmative defenses I am aware of and I will analyze
them as claims of EEO discrimination and reprisal, reprisal for making a report to the
Inspector General, and reprisal for testifying at a Board hearing.” AR 214 (bold emphasis in
original). He informed the parties that they must submit any “additions, corrections, or objections
to this notice” by “February 26, 2016 or be deemed waived.” AR 213 n.1.
Mr. Bussey submitted his Prehearing Submissions on February 26, 2016, and subsequently
he submitted his exhibits in support. See AR 459-536. Regarding his whistleblower retaliation
claims, Mr. Bussey asserted that Mr. Conger “was aware of his history of exposing fraud, waste
and abuse at DTRA,” AR 460, and that the issue is whether his removal “was based on retaliation
and reprisal for his ‘whistleblower’ activity in exposing fraud, waste and abuse within DTRA,”
AR 461. In response to the question of the date, substance, and recipients of the protected
disclosure, Mr. Bussey answered: “The substance and recipients of the protected disclosure are set
forth in Exhibit 1, the ‘Whistleblower Memorandum.’ The date on which the Memorandum was
submitted was 15 August 2015….The proposing and deciding officials both knew of Mr. Bussey’s
disclosure. Mr. Bussey’s removal was proposed and effected after he made this disclosure.” AR
480. After a hearing held on March 15 and 16, 2016, Mr. Bussey submitted his Closing Brief, in
which he did not submit any additional protected disclosures on which his Whistleblower

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allegations were based. See AR 697-714.
The MSPB AJ entered an Initial Decision on June 6, 2016, affirming the agency’s removal
action. See AR 715. He sustained the charge of conduct unbecoming a federal employee regarding
the June 11, August 12, September 9, and October 5, 2015 incidents, providing extensive detail as
to his findings and credibility determinations. See AR 718-27. He also found the Agency
established the charge of abusive language toward coworkers stemming from the October 21, 2015
incident and explained why he found the three witnesses who supported the charge more credible
than Mr. Bussey. See AR 728-32. Next, the MSPB AJ sustained the charge against Mr. Bussey of
failure to comply with leave procedures on September 10, 2015 and determined that the Agency
established the charge of lack of candor on September 9 and 14, 2015. AR 732-34.
The MSPB AJ also examined Mr. Bussey’s affirmative defenses of EEO discrimination,
EEO reprisal, and “reprisal covered by the Whistleblower Protection Enhancement Act (WPEA)
(disclosing information to the Inspector General and testifying for an appellant who alleged
whistleblower reprisal).” AR 735-36. Regarding Mr. Bussey’s Whistleblower retaliation claims,
AJ Brooks concluded:
I find the appellant failed to establish a prima facie case that his removal was
reprisal for that activity because he failed to establish that Collins, Conger, or
anybody else involved in removing him had any knowledge of that Inspector
General complaint. At hearing, Collins and Conger both denied having any such
knowledge…. The only evidence the appellant offered somewhat to the contrary
was a generalized statement that after he filed his Inspector General complaint, he
experienced a “decrease in activities reported,” which he explained involved “office
supplies getting held back” and a return to old credit card processes…. However, I
find the appellant’s testimony about this matter was so vague and lacking in any
conviction that I give it no weight. I find the appellant failed to establish a prima
facie case of reprisal for his Inspector General complaint, and accordingly I do not
reach the issue of whether the agency would have taken the same action in
removing him even absent his Inspector General activity.
AR 740-41. After explaining his grounds for rejecting the affirmative defenses, AJ Brooks found

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a nexus between the charges and the efficiency of the service and determined that the removal
action was within tolerable limits of reasonableness. See AR 735-48. The Initial Decision became
final on July 11, 2016. See Def.’s Mot. Summ. J. ¶ 60, ECF No. 28; Pl.’s Summ. J. Resp. ¶ 60,
ECF No. 32.
II.

PROCEDURAL BACKGROUND IN FEDERAL COURT

“A federal employee may exhaust administrative remedies either by filing a complaint with
the EEO [Equal Employment Opportunity] department of the employing agency or by proceeding
to the MSPB.” Dossa v. Wynne, 529 F.3d 911, 913 (10th Cir. 2008). When an appeal of a MSPB
decision involves both discrimination and other claims, it is referred to as a “mixed case,” because
the alleged unlawful discrimination is either related to or stems from an employment action over
which the MSPB has jurisdiction. See Harms v. I.R.S., 321 F.3d 1001, 1005 (10th Cir. 2003) (citing
29 C.F.R. § 1614.302(a) & 5 C.F.R. § 1201.3); Williams v. Rice, 983 F.2d 177, 179 (10th Cir.
1993). The employee may seek de novo review of the MSPB's decision in federal district court as
to his discrimination claims. Rice, 983 F.2d at 179 (citing 5 U.S.C. § 7703(c)). The nondiscrimination claims, however, “are reviewed on the administrative record.” Id. at 179-80.
Consistent with 5 U.S.C. § 7703(b)(2), Mr. Bussey timely filed this lawsuit on August 9,
2016. Mem. Op. and Order 2, ECF No. 37. In Counts I and II of his Complaint, Mr. Bussey alleged
claims of race discrimination and retaliation for participating as a witness and for previous EEO
filings in violation of Title VII. Compl. ¶¶ 25-32, ECF No. 1. In Count III, he asserted that he
engaged in protected disclosure of fraud and waste to the Inspector General’s Office, and he was
subject to adverse employment actions in violation of the Whistleblower Protection Enhancement
Act of 2012 (“WPEA”), Pub. L. No. 112-199, 126 Stat. 1465 (2012). See id. ¶¶ 33-38. Mr. Bussey
alleged that in 2014 and 2015, he had numerous conversations with his supervisor, Mr. Collins,

10

about what Mr. Bussey believed were illegal procurement and fraud and waste in the purchase of
items not necessary for the mission of DTRA by Mr. Collins, to include using two credit cards to
split the costs of purchased goods so limits on purchasing were not exceeded which would require
additional authorization. See id. ¶¶ 12-14. Mr. Bussey alleges that Mr. Collins told him in 2015 to
stop complaining about items he was purchasing or there would be consequences and that he was
in deep waters without a paddle. Id. ¶ 15. Mr. Bussey further alleged he made a Whistleblower
complaint with the IG’s office on August 15, 2015. Id. ¶ 16.
The Honorable M. Christina Armijo entered a Memorandum Opinion and Order granting
summary judgment to Defendant on Plaintiff’s Title VII discrimination and retaliation claims.
Compare Mem. Op. and Order 32-33, ECF No. 37, with Compl., ECF No. 1. The Court denied
Defendant’s motion for summary judgment on Plaintiff’s claim for retaliation in violation of the
WPEA. See Mem. Op. and Order 2, 5-7, ECF No. 37. The Court concluded that Defendant had the
obligation to file the AR, which it had not done, so the record was not sufficiently developed. See
id. at 5-7. The Court further determined that Defendant had erroneously relied on the summary
judgment standard, rather than the standard of review applicable to agency decisions under the
Administrative Procedures Act, and ordered Defendant to file the AR. See id. The Court in its
discretion retained jurisdiction over Plaintiff’s WPEA claim. Id. at 32.
Following the decision, Defendant filed the AR and the parties submitted their
administrative appeal briefs. Plaintiff argues that the MSPB’s decision was not in accordance with
the law of the WPEA, was arbitrary, and was not supported by substantial evidence. Pl.’s Br. 1,
ECF No. 49. Plaintiff contends that the MSPB AJ applied the wrong standard on what constitutes
a protected activity, did not review critical evidence, and relied on misleading evidence of the
Agency’s witnesses. Id. Defendant responds that substantial evidence exists to support Plaintiff’s

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termination of employment for conduct unbecoming a federal employee, abusive language towards
coworkers, failure to comply with leave procedures, and lack of candor. Def.’s Br. 3, ECF No. 50.
Defendant additionally argues that the MSPB AJ was not required to consider the affirmative
defense based on complaints to Mr. Collins and Mr. Conger because Plaintiff’s submission on
appeal did not include those allegations. Id. at 12.
III.

STANDARD OF REVIEW

An appeal of an MSPB decision involves a narrow review. Romero v. Department of the
Army, 708 F.2d 1561, 1563 (10th Cir. 1983). Non-discrimination claims which are appealed from
the MSPB are reviewed on the administrative record under an “arbitrary and capricious standard”
where the MSPB's decision need only have a rational basis in law. Williams, 983 F.2d at 181 (citing
Wilder v. Prokop, 846 F.2d 613, 619 (10th Cir.1988)). As the Tenth Circuit holds:
A MSPB decision must be upheld unless the reviewing court determines that it is:
(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). The reviewing court “may not substitute its judgment for that
of the MSPB.” Wilder v. Prokop, 846 F.2d 613, 619 (10th Cir. 1988). “Under the
arbitrary and capricious standard the MSPB’s decision needs only to have a rational
basis in law.” Id. at 620.
Id. at 180. Substantial evidence supports the MSPB’s decision if it is supported by “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Brewer v. United
States Postal Service, 647 F.2d 1093, 1096 (Ct. Claims 1981) (quoting Consolidated Edison Co.
v. NLRB, 305 U.S. 197, 229 (1938)). See also Olenhouse v. Commodity Credit Corp., 42 F.3d
1560, 1581 (10th Cir. 1994) (“‘Substantial evidence’ is more than a mere scintilla; it must be such
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relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”).
IV.

LEGAL ANALYSIS

The WPEA, 5 U.S.C. § 2302(b), provides:
Any employee who has the authority to take, direct others to take, recommend, or
approve any personnel action, shall not, with respect to such authority . . .
(8) take or fail to take, or threaten to take or fail to take, a personnel action
with respect to any employee . . . because of –
(A) any disclosure of information by an employee . . . which the
employee . . . reasonably believes evidences—
(i)
(ii)

any violation of any law, rule, or regulation, or
gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific
danger to public health or safety . . . .

5 U.S.C. § 2302(b)(8)(A). “To establish a prima facie case for whistleblowing under the WPA,
Plaintiff must show by a preponderance of the evidence that (1) he made a protected disclosure,
(2) he was subjected to an adverse employment action, and (3) a causal connection exists between
the protected activity and the adverse employment action.” Wells v. Shalala, 228 F.3d 1137, 114647 (10th Cir. 2000). The burden of showing a prima facie case is on the employee. See Considine
v. National Credit Union Admin., 366 F. App’x 157, 2010 WL 569325 (Fed. Cir. Feb. 16, 2010)
(unpublished) (citing Horton v. Dep’t of Navy, 66 F.3d 279, 282 (Fed. Cir. 1995)); Hamilton v.
Department of Veterans Affairs, 115 M.S.P.R. 673, ¶ 25 (2011). If the appellant makes a prima
facie showing, the burden shifts to the agency to show by clear and convincing evidence that it
would have taken the same adverse employment action in the absence of any protected activity.
Hamilton, 115 M.S.P.R. 673, ¶ 25.
Plaintiff asserts that, although the MSPB AJ determined that Plaintiff had not proven he
was retaliated against for his IG complaint, the MSPB AJ failed to consider “the complaints

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Plaintiff made to the deciding official, Mr. Conger, about fraud and waste by his supervisor, Mr.
Collins.” Pl.’s Br. 3, ECF No. 49. Plaintiff argues that protected activity can be a report to an
employer about fraud and waste, id., so the MSPB AJ “wrongly concluded that the proposing and
deciding officials were not aware of Plaintiff’s protected whistle blowing activities prior to his
removal because the ALJ was only considering the report to the IG, not the reports Plaintiff made
to the employer.” Id. at 4. Plaintiff argues that the MSPB AJ’s focus on IG reporting shows that
he did not read or consider Plaintiff’s response to the proposed notice of removal, in which Plaintiff
set forth his detailed allegations of fraud and abuse against Mr. Collins. See id.
Contrary to Plaintiff’s argument, Administrative Judge Brooks’ focus on the IG complaint,
rather than on reports Plaintiff made directly to his employer, was rational and based on the record
before him. At no point during the MSPB appeal process did Mr. Bussey contend that his
whistleblower retaliation claim was based also on his fraud and waste complaints to Mr. Collins
and his raising those complaints to Mr. Conger. Instead, Plaintiff repeatedly stated in his MSPB
submissions that his Whistleblower retaliation claim arose from his August 15, 2015 Memorandum
to the DOD Inspector General.1 When Administrative Judge Brooks stated his understanding of
the nature of the retaliation claims before him and the protected actions – which did not include
any other informal complaints or the December 4, 2015 response as constituting a separate report
of fraud and abuse for which he suffered retaliation – Mr. Bussey did not submit any additions,
corrections or objections to the record. Plaintiff thus waived consideration of other protected
conduct in his administrative appeal. Accordingly, Administrative Judge Brooks’ failure to
consider Plaintiff’s informal reports about fraud and waste or the December 4, 2015 response as

1

The Court recognizes that Plaintiff also raised on the MSPB appeal that he was retaliated for prior EEO activity and
for testifying at the Board hearing of a coworker. See AR 735-36. The Court is focused here on only the claim and
arguments before it on the appeal briefs, not on the claims previously resolved in the Court’s Memorandum Opinion
and Order filed on April 5, 2018.

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separate protected activity for which he was retaliated was rational, in accordance with substantive
and procedural law, was not arbitrary and capricious, and was not an abuse of discretion.
The record also does not support Plaintiff’s argument that the MSPB AJ did not read or
consider Plaintiff’s response to his removal. To the contrary, the initial decision contains numerous
references to Mr. Bussey’s response. See AR 717, 726-27, 730-31, 747-48. The MSPB AJ also
mentioned in the initial decision his consideration of cross examination questions asked by
appellant’s counsel at the hearing about why Mr. Conger did not initiate inquiries into the
allegations the appellant raised in his response. AR 748.
Plaintiff additionally argues that Mr. Conger gave misleading testimony when he
responded only to specific questions concerning his knowledge at the time of the proposed
suspensions and to questions regarding the IG report, essentially faulting him for not offering up
testimony of whether he was aware that Plaintiff had made informal complaints of fraud and waste
against his supervisor. Plaintiff notes that no one, including Administrative Judge Brooks asked
about those informal complaints. However, in Mr. Conger’s Notice of Decision on Proposed
Removal, he in writing acknowledged that Mr. Bussey had “alleged other acts of malfeasance on
the part of Mr. Collins and others at DTRA.” AR 72. Mr. Conger’s knowledge of Mr. Bussey’s
informal complaints against Mr. Collins was therefore in the record. Moreover, Plaintiff was
represented by counsel at the hearing, who had the opportunity to and did cross examine Mr.
Conger. See AR 666, AR 840-869, 876-82. Counsel specifically asked Mr. Conger about his earlier
testimony that he had no indication of whistle blowing prior to Agency counsel having a discussion
with him, and Mr. Conger answered by clarifying that he testified that he was unaware of the DOD
IG investigation. AR 856. The record thus does not support Plaintiff’s argument that Mr. Conger
was offering misleading testimony or that the MSPB AJ was misled by Mr. Conger’s testimony.

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Plaintiff also asserts that the MSPB AJ wrongly concluded that Mr. Collins and Mr. Conger
were not aware of Plaintiff’s protected activity. AJ Brooks found that Plaintiff failed to establish
that Mr. Collins and Mr. Conger were aware that Plaintiff had filed an IG complaint. That finding
is supported by substantial evidence in the administrative record and is rationally based. See AR
795 (Transcript of Mr. Collins’ testimony stating that he was not aware that Mr. Bussey had filed
a complaint with the Inspector General in August 2015); AR 840 (Transcript of Mr. Conger’s
testimony that he was not aware that Mr. Bussey had made a prior complaint to the DOD IG when
he issued his decision to terminate Mr. Bussey’s employment). See also AR 550 (Declaration of
Vincent J. Raffery, Jr., Associate General Counsel for DOD OIG, stating that the DCIS
information report and Hotline records contain no information that DCIS agents or the defense
hotline staff contacted DTRA or DTRA employees Paul Collins or Calvin Conger). The fact that
Plaintiff made informal complaints to Mr. Collins -- and notified Mr. Conger of his charges of
fraud and waste in his December 4, 2015 response -- does not establish that either of them knew
he made a formal IG complaint, the latter of which was the protected activity on appeal. The MSPB
AJ weighed the testimony of the witnesses at the hearing and he found that Mr. Bussey’s
explanation for why Mr. Bussey believed Mr. Collins and Mr. Conger had knowledge that he had
filed an IG report prior to their removal decision was “so vague and lacking in any conviction that
I give it no weight.” AR 741. See also AR 1073-75 (Transcript of Mr. Bussey’s testimony).
Credibility determinations of the hearing court should not be second-guessed by the appellate
court. See United States v. Silvers, 84 F.3d 1317, 1328 (10th Cir. 1996).
Plaintiff nonetheless argues that the MSPB AJ erred by failing to consider the timing of
the adverse action within a month of his protected activity as evidence that his protected activity
was a contributing factor in the agency’s decision to fire him. Plaintiff contends that he reported

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fraud and waste on December 4, 2015, and suffered an adverse action approximately one month
later, on January 5, 2016, demonstrating a causal connection by temporal proximity. See Pl.’s Br.
6-7, ECF No. 49.
“An employee may demonstrate that a disclosure was a contributing factor in a covered
personnel action through circumstantial evidence, such as the acting official's knowledge of the
disclosure and the timing of the personnel action.” Hugenberg v. Department of Commerce, 120
M.S.P.R. 381 ¶ 12 (2013). The closer in time between the protected activity and the adverse action,
the more likely it will support a showing of causation. Anderson v. Coors Brewing Co., 181 F.3d
1171, 1179 (10th Cir. 1999). For example, the Tenth Circuit has concluded that a one and one-half
month period between protected activity and adverse action may, by itself, establish causation, but
a three-month period alone is insufficient. See id. (comparing “Ramirez v. Oklahoma Dept. of
Mental Health, 41 F.3d 584, 596 (10th Cir.1994) (one and one-half month period between
protected activity and adverse action may, by itself, establish causation) with Richmond v.
ONEOK, Inc., 120 F.3d 205, 209 (10th Cir.1997) (three-month period, standing alone, is
insufficient to establish causation)”).
Plaintiff argues that the timing alone establishes causation, relying on Plaintiff’s response
submitted to Mr. Conger on December 4, 2015, and his termination on January 5, 2016. Once
again, Plaintiff focuses on a protected conduct that was not before the administrative judge on
appeal. Plaintiff limited the protected conduct supporting his whistleblower claim to his
submission of the IG report, which Plaintiff made on August 15, 2015, approximately three months
before he received the notice of proposed removal and approximately four-and-one-half months
before his firing. Because the adverse action is not “very closely” connected in time with the
protected activity, Plaintiff “must rely on additional evidence beyond temporal proximity to

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establish causation.” Id. The MSPB AJ’s failure to find that the timing of the adverse action alone
established causation was not contrary to law. Moreover, given the record before him, his
conclusion that Plaintiff did not establish a prima facie case of Whistleblower retaliation because
he did not show causation was rational, supported by the record, not arbitrary and capricious, and
not an abuse of discretion.
IT IS THEREFORE ORDERED that the decision of the MSPB is AFFIRMED.
Plaintiff’s claim in Count III is DISMISSED. A separate judgment pursuant to Rule 58 dismissing
this action shall enter concurrently herewith.

____________________________________
UNITED STATES DISTRICT JUDGE

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