Petition for review of the Merit Systems Protection Board in consolidated case nos. SF1221080524-B-1 and SF1221080635-B-1.
NOTE: This disposition is nonprecedential.
Before NEWMAN, LINN, and MOORE, Circuit Judges.
William B. Groseclose ("Groseclose") appeals a final decision of the Merit Systems Protection Board ("Board") affirming the administrative judge's ("AJ") determination that Groseclose failed to establish a claim under the Whistleblower's Protection Act. Because the Board's findings are supported by substantial evidence, this court affirms.
Groseclose worked for over four years, through February 2008, as a branch manager at the Department of the Navy's ("Navy" or "Agency") Integrated Combat Systems Test Facility ("ICSTF") at Port Hueneme in San Diego, California. Donald A. Potenza ("Potenza") was the site director at ICSTF and Groseclose's supervisor during this entire period. Potenza described Groseclose's duties to include managing personnel schedules, handling personnel actions, and assuring that ICSTF met its testing deadlines.
A. First and Second Allegedly Protected Disclosures
In late 2007 through early 2008, Groseclose became concerned over an ongoing conflict between ICSTF employee Rick Merriman ("Merriman") and Merriman's supervisor Paul Salerni ("Salerni"), which led Merriman to disobey Salerni's orders on various occasions. In late January and early February 2008, Merriman called Groseclose at home to express his frustration with Salerni, and Groseclose perceived Merriman as being "pushed to the edge" and potentially suicidal. Groseclose disclosed his concerns about Merriman to Potenza and Salerni on January 29. Potenza responded by immediately meeting with Salerni, Gary Lawrence ("Lawrence") of Human Resources ("HR"), and a union representative. Potenza, Lawrence, and Salerni decided it was still appropriate to reprimand Merriman for failing to follow Salerni's orders and they arranged for an in-person meeting with Merriman. Potenza testified to further reporting Groseclose's concerns to the appropriate authorities within the Agency, including ICSTF security and "higher command." Potenza also informed Groseclose that he had appropriately dealt with the matter.
Despite Potenza's actions, on February 5, 2008, Grose-close sent the first allegedly protected disclosure: an email to Potenza's direct supervisor Wesley Holser ("Holser") and Lawrence in HR, titled "!!!! EXTREME SAFETY ISSUE !!!!" in the subject line, and stating, inter alia, that "[Merriman] said suicide has crossed his mind," "[Merriman] feared that  Salerni may use the illegal knife he carries," and "Potenza [is] unfit [as] a leader for endangering his workforce." Potenza learned of the email that day and called Groseclose, ordering him not to further involve himself in the situation and again explaining that he was handling the situation properly. Later that same afternoon, after Potenza's call, Merriman sent the second allegedly protected disclosure: another email to Holser and Lawrence to explain Potenza's communication with him and reiterate his beliefs that Merriman was potentially violent and that Potenza was not handling the situation properly. The next day, Stephen Mason ("Mason"), the ICSTF lead engineer and acting site director at the time, investigated Groseclose's concerns and concluded that Merriman was not dangerous to anyone and that Groseclose was only energizing and escalating the situation in a negative manner.
B. Third Allegedly Protected Disclosure
On February 5, 2008, the same day as the first two allegedly protected disclosures, Groseclose made the third allegedly protected disclosure, which was unrelated to the Merriman issue. This disclosure related to ICSTF support for testing of a certain naval combat system. In late 2007, ICSTF's sponsor, Naval Sea Systems Command ("NAVSEA"), decided to move this particular testing from ICSTF's facility to Wallops Island, Virginia. The testing was scheduled to begin in April 2008. Prior to that date, ICSTF was required to complete a "test bed validation." Groseclose and his project manager Mark Garcia ("Garcia") believed that a successful test bed validation required ICSTF personnel to integrate a warfare simulation system, the Common Scenario Control Environment ("CSCE"), at Wallops Island. Mason, the lead engineer, disagreed. In addition, Potenza had funding concerns regarding the CSCE integration that were based on contractual restrictions, which he communicated to Groseclose. Unbeknownst to Potenza or Mason, Grose-close and Garcia met with NAVSEA representatives in January 2008 to discuss NAVSEA support for implementing the CSCE at Wallops Island.
On February 5, 2008, Groseclose sent an email to Viviane Deering ("Deering"), the NAVSEA representative on the project, stating that ICSTF was "seek[ing] NAVSEA guidance on providing CSCE support at Wallops Island." Groseclose copied lead engineer and acting supervisor Mason on this email. This was the first time Mason learned of Groseclose's earlier contacts with NAVSEA, and Mason disagreed with Groseclose's message. Mason quickly replied to the email directing Grose-close not to contact NAVSEA without his clearance and asking him to recall the email. Groseclose recalled the email and replied to Mason with another email stating that he disagreed with Mason and saw nothing "wrong with seeking specific guidance with respect to the support our sponsor expects us to provide." In so replying, Grose-close blind-carbon copied Deering from NAVSEA on his email to Mason expressing his disagreement with Mason's approach to the CSCE issue. Groseclose's blind-carbon copied email to Deering is the third allegedly protected disclosure.
C. Challenged Personnel Actions
On February 8, 2008, after Mason and Potenza learned of the blind carbon copy incident, Potenza engaged in the following challenged personnel actions: (1) the removal of Groseclose from computer access to prevent him from further contacting NAVSEA against orders; (2) the reassignment of Groseclose from his supervisory branch manager position to a nonsupervisory position in the same pay grade; and (3) a proposed a five-day suspension, which the department manager, Holser, approved, but only for two days. Potenza testified that he believed this to be the minimum punishment required to correct Groseclose's insubordinate behavior. Potenza and Mason testified that Potenza's insubordination jeopardized ICSTF by making ICSTF appear indecisive and unreliable in performing testing operations for NAVSEA. According to Potenza, NAVSEA was the "life blood" of ICSTF, and if NAVSEA ceased to use ICSTF as its testing facility, it would be detrimental ...