Wayne C. Hawkes v. Department of Agriculture

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
WAYNE C. HAWKES,
Petitioner
v.
DEPARTMENT OF AGRICULTURE,
Respondent
______________________
2016-1387
______________________
Petition for review of the Merit Systems Protection
Board in Nos. SF-0752-13-0038-I-2, SF-0752-15-0049-I-1.
______________________
Decided: August 10, 2016
______________________
WAYNE C. HAWKES , Davis, CA, pro se.
J OSEPH ALAN P IXLEY , Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BRIAN M IZOGUCHI, R OBERT E. K IRSCHMAN, J R., BENJAMIN
C. MIZER.
______________________
Before D YK, BRYSON, and REYNA, Circuit Judges.

-- 1 of 5 --

HAWKES v. DEPARTMENT OF AGRICULTURE 2
P ER CURIAM .
Wayne Hawkes appeals pro se a final decision of the
Merit Systems Protection Board upholding his suspension
and removal from the Department of Agriculture. The
Board determined that the agency met its burden with
respect to its causes for adverse action and that Mr.
Hawkes failed to establish any affirmative defense. The
Board’s decision is supported by substantial evidence, in
accordance with law, and neither arbitrary, capricious,
nor an abuse of discretion. We affirm.
BACKGROUND
Mr. Hawkes worked as a supervisory research chem-
ist at the USDA for over 30 years. He maintained a
reputation for taking safety concerns seriously, in part
due to whistleblowing disclosures to the Occupational
Safety & Health Administration (OSHA) in 1995 and
1997. In 2012, a laboratory malfunction led to a series of
confrontations between Mr. Hawkes and his coworkers.
Those confrontations resulted in a supervisor directing
Mr. Hawkes to take an anger management course, which
he failed to timely complete. Mr. Hawkes later vented his
frustration to a colleague, who reported Mr. Hawkes’
statements as threats against a supervisor. This culmi-
nated in Mr. Hawkes’ receiving 30 days suspension. A
year later, Mr. Hawkes was removed from employment
due to disruptive behavior in a meeting of senior scien-
tists.
Mr. Hawkes filed two appeals before the Board, one
challenging the suspension and another challenging the
removal. An administrative judge joined the two appeals
and sustained both agency actions. In its initial decision,
the Board found that the agency met its burden with
respect to charges of causing a disruption in the work-
place and failure to follow instructions, which led to the
suspension and with respect to conduct unbecoming a
federal employee, which led to the removal. On review,

-- 2 of 5 --

HAWKES v. DEPARTMENT OF AGRICULTURE 3
the full Board affirmed the initial decision. Mr. Hawkes
appeals. We have jurisdiction pursuant to 5 U.S.C.
§ 7703.
STANDARD OF REVIEW
Our review of Board decisions is limited. Kahn v.
Dep’t of Justice, 618 F.3d 1306, 1312 (Fed. Cir. 2010). We
may only reverse a Board decision if we find it to be
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; obtained without procedures
required by law; or unsupported by substantial evidence.
Id. Substantial evidence exists where a reasonable mind
could accept that evidence as adequate support for a
conclusion. See Brewer v. U.S. Postal Serv., 647 F.2d
1093, 1096 (Ct. Cl. 1981). The Board’s credibility deter-
minations are virtually unreviewable on appeal. King v.
Dep’t of Health & Human Servs., 133 F.3d 1450, 1453
(Fed. Cir. 1998).
D ISCUSSION
Mr. Hawkes does not deny that he failed to complete
the anger management course on time as instructed,
made the allegedly threatening statements, and disrupted
the meeting of senior scientists. Instead, Mr. Hawkes has
consistently maintained that his statements were jokes
and not intended to be threatening. However, intent is
not an element because, as the Board explained, the
agency suspended him for disrupting the workplace, not
making threats. J.A. 37.
Mr. Hawkes primary contention on appeal is that the
agency’s stated grounds for suspension and removal are
guise for improper retaliation against his protected whis-
tleblowing activities. He also contends that the agency
improperly relied on “threats, emotional disability,
breaching [of] a confidentiality agreement, [and] Petition-
er’s lawsuit” against a coworker.” Petitioner’s Br. 4. The
Board explained that it was persuaded by credible evi-

-- 3 of 5 --

HAWKES v. DEPARTMENT OF AGRICULTURE 4
dence from agency officials that the decision to suspend
and remove Mr. Hawkes was not motivated by any of
those grounds. See, e.g., J.A. 42, 44−46. Further, Mr.
Hawkes’ packaging these arguments as due process
violations is to no avail, because Mr. Hawkes had no right
to notice of grounds that were not relied on by the agency.
The Board also correctly explained that it did not
have jurisdiction in this appeal to consider whether other
agency actions—such as moving Mr. Hawkes’ office and
limiting his contact with colleagues—were improperly
motivated by his protected whistleblower activities,
because Mr. Hawkes did not file an appeal challenging
those agency actions, only his suspension and removal.
J.A. 43.
For the protected whistle blowing activities that Mr.
Hawkes was able to establish as being relevant to the
agency’s decision to suspend and remove him, the Board
correctly applied the three-part test from our decision in
Carr v. Social Security Administration, 185 F.3d 1318,
1323 (Fed. Cir. 1999). Despite the evidence Mr. Hawkes
submitted to the contrary, the Board explained that it
was persuaded by clear and convincing evidence from
agency officials, whom the Board found credible, that the
agency would have suspended and removed Mr. Hawkes
regardless of his protected activities. The Board’s factual
determinations are supported by substantial evidence,
and we will not disturb them.
Mr. Hawkes asserts that the administrative judge
erred in consolidating his appeals because that resulted in
considering his suspension as prior discipline relevant to
his removal even though his suspension was still pending
appeal. He also asserts that the administrative judge
erred in denying certain of his proffered witnesses. We do
not find these procedural objections persuasive. There
was no error in consolidating the appeals because the
Board is allowed to consider prior disciplinary action even

-- 4 of 5 --

HAWKES v. DEPARTMENT OF AGRICULTURE 5
when that prior discipline is pending appeal. Suggs v.
Dep’t. of Veterans Affairs, 113 M.S.P.R. 671, 675 ¶ 11
(2010), aff’d, 415 F. App’x 240 (Fed. Cir. 2011). Mr.
Hawkes waived his objection to the denial of witnesses by
failing to timely object to the administrative judge’s
decision after the pre-conference ruling. J.A. 49−50.
We affirm the Board’s decision.
AFFIRMED
COSTS
No costs.

-- 5 of 5 --