explaining that both evidence supporting, and detracting from, a conclusion must be considered in determining if an agency proves its affirmative defense in an IRA appeal
How later courts described this case
- explaining that both evidence supporting, and detracting from, a conclusion must be considered in determining if an agency proves its affirmative defense in an IRA appeal
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JANET R. SANTANGELO, DOCKET NUMBER
Appellant, PH-1221-16-0237-W-1
v.
DEPARTMENT OF THE TREASURY, DATE: June 12, 2024
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Ronica Scales , Esquire, Shaun Southworth , Esquire, and Terina Williams ,
Esquire, Atlanta, Georgia, for the appellant.
Alison K. Sablick , Esquire, New York, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
denied her request for corrective action in this individual right of action (IRA)
appeal. For the reasons discussed below, we GRANT the appellant’s petition for
1
A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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
review, VACATE the initial decision, and REMAND the case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
BACKGROUND
The appellant was a GS-14 Supervisory Appeals Officer for the agency’s
Internal Revenue Service. Initial Appeal File (IAF), Tab 10 at 167. In 1997, she
was temporarily promoted to the GS-15 grade level. Id. at 43, 167. She was
returned to the GS-14 grade level in 2002, although she maintained that she
continued to perform GS-15 grade level work. 2 Id. at 167.
In the years following the end of her temporary promotion, the appellant
made numerous purported disclosures about the alleged misclassification of her
position to various agency officials. Id. at 167-68. For instance, she submitted
five or six requests to human resources about her alleged misclassification
between 2010 and 2012, and raised her alleged misclassification with her
supervisor between January 2011 and June 2012. Id. at 168.
The appellant also made purported disclosures regarding two other matters.
First, in August 2013, she informed her supervisor and another management
official about an alleged inconsistency in her team’s case productivity data. IAF,
Tab 10 at 172, Tab 25 at 65-69, 162-63. Additionally, on December 12, 2013, the
appellant suffered a laceration to her face when a subordinate threw a case file at
her. IAF, Tab 10 at 173. Approximately 20 minutes after that incident, she
described the altercation in an email to her supervisor, other management
officials, and officials with the Treasury Inspector General for Tax
Administration (TIGTA). IAF, Tab 25 at 73. When she returned to work on
December 16, 2013, she informed some of these same individuals that the locks
around her office had not been changed, as she asserted should have been done
2
At times, the appellant was on a pay plan in which the IR-04 grade level was
equivalent to GS-14 grade level and the IR-03 grade level was equivalent to the GS-15
grade level. IAF, Tab 5 at 50, Tab 10 at 178. For convenience, we refer to the
appellant’s grade level by its general schedule equivalent.
3
following the incident to prevent her subordinate’s unannounced entry. IAF,
Tab 10 at 86-87, 174.
On December 23 and 30, 2013, the appellant informed officials with
TIGTA and agency officials charged with oversight of security matters about
alleged inaccuracies in the agency and local police reports regarding the
altercation. Id. at 93-94, 175. On February 6, 2014, she similarly informed her
new supervisor, among others, about the alleged inaccuracies. Id.
at 92-94, 175-76.
On February 27, 2014, the agency proposed the appellant’s suspension for
failing to follow managerial instructions. Id. at 110. Specifically, she failed to
assign a case and to attend a counseling session as directed. Id. The appellant
did not respond to the proposal notice. Id. at 114. The agency sustained the
proposal and suspended the appellant for 5 days. Id. at 113-15.
On June 5, 2014, the appellant’s supervisor ordered her to stop raising the
issue of the alleged misclassification of her position unless she had new and
material information to offer because the agency had repeatedly addressed her
concerns and rejected them. Id. at 117. On June 19, 2014, the appellant
forwarded her supervisor a 2010 email in which she had raised her
misclassification claim to an agency official. Id. at 119. On August 1, 2014, the
agency proposed the appellant’s suspension for her failure to follow the
instruction. Id. at 123. The appellant did not respond to the proposal notice. Id.
at 127. On October 9, 2014, the agency sustained the proposal and suspended the
appellant for 10 days. Id. at 126-28.
On February 18, 2015, the appellant discussed with her supervisor what she
called the “old business” of, inter alia, the alleged misclassification of her
position and the December 2013 altercation. IAF, Tab 5 at 41, Tab 10 at 180,
Tab 26 at 82. He told her that they could continue their discussion the following
week and that she should send him a single email with a list of issues she wanted
to discuss. IAF, Tab 5 at 41. He “[s]pecifically advised her to not send [him]
4
multiple emails” on the subject. Id. Before and after the February 25, 2015
meeting, the appellant sent her supervisor approximately 32 emails regarding her
“old business.” IAF, Tab 5 at 42-43, Tab 10 at 180-81.
On June 24, 2015, the agency proposed the appellant’s removal based on
4 charges with a total of 33 specifications. IAF, Tab 5 at 20-26. The agency
charged the appellant with the following: (1) insubordination; (2) failure to
follow management directives; (3) misuse of time during official work days; and
(4) unprofessional behavior. Id. One of the specifications under the second
charge concerned the appellant’s transmission to her supervisor of approximately
32 emails on February 25, 2015, regarding her “old business.” IAF, Tab 5 at 21,
42-43, Tab 10 at 80-81. The appellant did not reply to the proposed removal.
IAF, Tab 5 at 17. The agency removed the appellant effective July 28, 2015. Id.
at 16-19.
The appellant filed a complaint with the Office of Special Counsel (OSC)
and then filed this IRA appeal after receiving her close-out letter. IAF, Tab 1.
After holding the requested hearing, the administrative judge issued an initial
decision in which he identified the following as the appellant’s alleged
disclosures: (1) the email concerning the incident of workplace violence on
December 12, 2013, including her following stated concerns as to the agency’s
response to and investigation of the incident; (2) 2013 and 2014 communications
regarding the misclassification of her position; and (3) expressed concerns as to
the inaccurate production data for her team, which she disclosed in 2013. IAF,
Tab 35, Initial Decision (ID) at 12.
Of these disclosures, the administrative judge only found that the following
were protected: (1) the appellant’s contemporaneous email regarding the
December 12, 2013 incident; and (2) her communications regarding the
misclassification of her position generally. Id. at 16-25. As to disclosure (1), he
concluded that the appellant’s later communications about the agency’s report and
handling of the December 12, 2013 incident were not protected. ID at 19-22. As
5
to disclosure (2), he found that by the time the appellant sent her June 19, 2014
email as to the misclassification of her position, she no longer reasonably
believed that the position was misclassified. ID at 30-31. The administrative
judge determined that disclosure (3), the appellant’s communications concerning
the alleged inconsistency in her team’s case productivity data, was not protected.
ID at 17-18. Finally, he found that the appellant’s communications as to “old
business,” including the 32 emails she sent her supervisor on this topic, were not
protected because they concerned matters that the agency already had addressed
and resolved. ID at 34-35.
The administrative judge found that the appellant established that her
protected disclosures were a contributing factor in her two suspensions and
removal. ID at 25. He concluded, however, that the agency proved by clear and
convincing evidence that it would have taken the same actions in the absence of
the appellant’s protected disclosures. ID at 25-37. He therefore denied her
request for corrective action. ID at 38.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response to the petition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
This case involves disclosures made both prior to and after the
December 27, 2012 effective date of the Whistleblower Protection Enhancement
Act of 2012 (WPEA), and personnel actions that occurred after that date.
Because the agency knew of the parties’ rights, liabilities, and duties under the
WPEA when it suspended and removed the appellant, the WPEA should be
applied in this matter. Pridgen v. Office of Management and Budget, 2022 MSPB
31, ¶¶ 50-51. Under the WPEA, the Board has jurisdiction over an IRA appeal if
the appellant has exhausted her administrative remedies before OSC and makes
nonfrivolous allegations that (1) she made a protected disclosure described under
5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C.
6
§ 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or protected activity
was a contributing factor in the agency’s decision to take or fail to take a
personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). 3 Salerno v. Department
of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016).
Once an appellant establishes jurisdiction over her IRA appeal, she is
entitled to a hearing on the merits of her claim, which she must prove by
preponderant evidence. Id. If the appellant proves that her protected disclosure
or activity was a contributing factor in a personnel action taken against her, then
the agency is given an opportunity to prove, by clear and convincing evidence,
that it would have taken the same personnel action in the absence of the protected
disclosure. Id.
The administrative judge should have found that the appellant’s communications
to the TIGTA were protected activity under 5 U.S.C. § 2302(b)(9)(C).
The appellant sent the emails reporting the December 12, 2013 incident to,
among others, TIGTA employees. IAF, Tab 25 at 73. She also included the
TIGTA on her December 16 and 30, 2013 emails regarding alleged inaccuracies
in the reports of the incident completed by the agency and local police and the
agency’s failure to immediately change the office locks. IAF, Tab 10 at 87, 94,
174, Tab 25 at 74. During a meeting with a TIGTA employee on December 23,
2013, the appellant informed the employee that the local police report of the
December 12, 2013 incident inaccurately characterized the nature of the incident.
IAF, Tab 10 at 175. Other than the December 12, 2013 email, the administrative
judge found that none of these disclosures were protected. In doing so, he
determined that the appellant did not prove that she reasonably believed that her
other communications disclosed wrongdoing protected under section 2302(b)(8).
ID at 13, 19-20, 23. This finding was in error.
3
The parties do not dispute the administrative judge’s finding that the Board has
jurisdiction over the appeal. ID at 1. They also do not dispute the administrative
judge’s description of the disclosures and personnel actions at issue. ID at 12-13. We
discern no basis to disturb these findings.
7
A protected whistleblowing disclosure is one that a reasonable person in
the appellant’s position would believe evidenced one of the categories of
wrongdoing specified in 5 U.S.C. § 2302(b)(8). 5 U.S.C. § 2302(a)(2)(D);
Salerno, 123 M.S.P.R. 230, ¶ 6 (discussing this standard at the jurisdictional
stage of an IRA appeal). The test to determine whether a putative whistleblower
has a reasonable belief in the disclosure is an objective one: whether a
disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the employee could reasonably conclude that the actions of the
agency evidenced a violation of law, rule, or regulation, gross mismanagement, a
gross waste of funds, an abuse of authority, or a substantial and specific danger to
public health or safety. Salerno, 123 M.S.P.R. 230, ¶ 6. However, unlike
protected “disclosures” under 5 U.S.C. § 2302(b)(8), 5 U.S.C. § 2302(b)(9)(C)
does not require proof that the employee has a reasonable belief that she is
disclosing wrongdoing when “cooperating with or disclosing information to the
Inspector General . . . in accordance with applicable provisions of law.” 4
As discussed above, the WPEA applies to this appeal. Therefore, the
appellant’s statements to the TIGTA are protected activity under 5 U.S.C.
§ 2302(b)(9)(C), and the Board has jurisdiction over them in this IRA appeal. 5
See Salerno, 123 M.S.P.R. 230, ¶ 5. Further, the administrative judge found, and
the record supports, that the appellant proved by preponderant evidence that she
engaged in this protected activity. ID at 18-21. Therefore, we must remand this
4
During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018, Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on December 12,
2017. It expanded the activities protected under 5 U.S.C. § 2302(b)(9)(C) to include
cooperating or disclosing information to “any . . . component responsible for internal
investigations or review.” Pub. L. No. 115-91, § 1097(c)(1)(A), 131 Stat. 1283, 1618.
That expansion does not affect the outcome of this appeal because all of the relevant
events occurred prior to December 12, 2017. See Edwards v. Department of Labor,
2022 MSPB 9, ¶¶ 29-33 (finding that the changes to section 2302(b)(9)(C) do not apply
retroactively), aff’d, No. 22-1967 (Fed. Cir. July 7, 2023).
5
The administrative judge found that the appellant exhausted her OSC remedy as to her
disclosures arising out of the December 12, 2013 incident. ID at 12.
8
issue for the administrative judge to make factual findings as to whether the
appellant met her burden to prove by preponderant evidence that this activity was
a contributing factor in a personnel action and if the agency met its burden to
prove its affirmative defense. See Mastrullo v. Department of Labor,
123 M.S.P.R. 110, ¶ 27 (2015) (remanding for an administrative judge to make
additional factual findings and credibility determinations to determine if an
agency threatened an appellant with a personnel action in reprisal for
whistleblowing). In doing so, we observe that because the administrative judge
already addressed the appellant’s December 13, 2013 email as a protected
disclosure (discussed below), he is not required to separately address it as a
protected activity. In addition, the appellant’s February 6, 2014 email to her
supervisor and others about purported inaccurate reports concerning the
altercation need not be addressed, because the appellant has not alleged that she
forwarded that email to the TIGTA. IAF, Tab 10 at 92-94, 175-76.
The appellant failed to prove that her June 19, 2014 disclosure regarding the
alleged misclassification of her position was protected.
The appellant argues that her June 2014 email constituted a protected
disclosure that was a contributing factor in some of the personnel actions taken
against her. PFR File, Tab 1 at 8-10. The administrative judge found that this
email was not protected because it violated her supervisor’s instruction to refrain
from raising her misclassification issue again unless she had new and material
information to offer. ID at 29-30. The appellant essentially argues that an
otherwise protected disclosure cannot lose its protection simply because the
agency instructed her not to make it. PFR File, Tab 1 at 9-10. In this instance,
we agree with the appellant. See Grubb v. Department of the Interior,
96 M.S.P.R. 361, ¶¶ 2-6, 12, 14 (2004) (finding that disclosures of time and
attendance abuse were protected despite the appellant’s violation of her
supervisor’s instruction to stop investigating her coworkers’ comings and goings
and discussing their office activities).
9
The administrative judge further found that the appellant’s June 2014 email
was not protected because the Office of Personnel Management (OPM) had
completed an audit and determined that the appellant’s position was not
misclassified. ID at 30. The appellant challenges this finding on review. PFR
File, Tab 1 at 10 n.1.
Regardless of whether OPM had made such a determination, the agency had
addressed it on multiple occasions. The appellant does not dispute that by
June 19, 2014, the agency had found, in 2012 and again in February 2014, that
her position was correctly classified. ID at 30 (citing IAF, Tab 25 at 119); PFR
File, Tab 1. She argued below that this finding was inconsistent with an internal
rule requiring that the agency “ensure that positions are classified consistent with
[an OPM] policy,” which provides “that the grade of a position may be
determined by the performance of higher-graded duties which constitute at least
25 percent of an employee’s work time.” Internal Revenue Manual, Part 6,
Human Resources Management, § 6.511.1.7.4(2),
https://www.irs.gov/irm/part6/irm_06-511-001 (last visited June 12, 2024); IAF,
Tab 10 at 26. In her June 2014 email, the appellant seemed to indicate that at
least 25 percent of the work that she supervised was commensurate with
higher-graded duties. IAF, Tab 10 at 119.
We agree with the administrative judge that by June 2014 the appellant’s
continued claim that she was performing GS-15 level work was unavailing. In
essence, the appellant was disagreeing with the agency’s ruling that her position
was properly rated at the GS-14 level. Id. An employee’s disagreement with an
agency ruling or adjudication does not constitute a protected disclosure even if
that ruling was legally incorrect. O’Donnell v. Department of Agriculture,
120 M.S.P.R. 94, ¶ 15 (2013), aff’d per curiam, 561 F. App’x 926 (Fed. Cir.
2014), and clarified on other grounds by Webb v. Department of the Interior,
122 M.S.P.R. 248, ¶ 9 (2015).
10
The parties do not dispute that the administrative judge’s finding that the
appellant’s earlier disclosures of the alleged misclassification of her position
were protected. ID at 16-17. Nor do they dispute his finding that the appellant’s
disclosure of the alleged inaccurate production data was not protected. ID
at 17-18. Finally, they present no argument that the administrative judge erred in
finding that the appellant met her burden to prove that her protected disclosures
were a contributing factor in the agency’s personnel actions. ID at 25. We
discern no basis to disturb these conclusions.
The agency established by clear and convincing evidence that it would have taken
the same personnel actions in the absence of the appellant’s protected disclosures.
As to the appellant’s protected disclosures, the only remaining question is
whether the agency proved by clear and convincing evidence that it would have
taken the same actions notwithstanding (1) the appellant’s contemporaneous
email regarding the December 12, 2013 incident, and (2) her earlier
communications regarding the misclassification of her position. In determining
whether the agency has met its burden of proving by clear and convincing
evidence that it would have taken the same action absent the appellant’s
disclosure, the Board will consider all the relevant factors, including the
following: (1) the strength of the agency’s evidence in support of its action;
(2) the existence and strength of any motive to retaliate on the part of the agency
officials involved in the decision; and (3) any evidence that the agency takes
similar actions against employees who did not engage in such protected activity,
but who are otherwise similarly situated. Carr v. Social Security Administration,
185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board does not view these factors as
discrete elements, each of which the agency must prove by clear and convincing
evidence, but rather weighs these factors together to determine whether the
evidence is clear and convincing as a whole. Lu v. Department of Homeland
Security, 122 M.S.P.R. 335, ¶ 7 (2015).
11
The appellant has failed to show that the administrative judge erred
in his application of the first Carr factor.
The appellant argues that the administrative judge erroneously applied
Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1372 (Fed. Cir. 2001).
PFR File, Tab 1 at 6-8. Citing Yunus, the administrative judge found that
“[w]hen examining the strength of the agency’s evidence, the Board will look at
the evidence the agency had before it when it took the [personnel] action.” ID
at 25 (emphasis omitted). Because the appellant failed to submit replies to the
proposed suspensions or the proposed removal, and the evidence before the
deciding official was undisputed, the administrative judge found that the agency
“cleared [the first] Carr hurdle almost by default.” ID at 25-26.
The administrative judge further found, however, that “[e]ven if [he were
to] consider the appellant’s responses to the disciplinary actions that she
presented [during the Board proceedings], [he] would still conclude that the
agency had ample evidence for its actions.” ID at 27. He then went on to discuss
the responses the appellant gave at the hearing to the various charges, which he
found unpersuasive. ID at 27-35. The appellant asserts that the administrative
judge’s “even if” comment demonstrates that he did not “officially” consider her
evidence. PFR File, Tab 1 at 7. The appellant argues that “it is error to analyze
the evidence from the perspective of what the [a]gency had before it instead of
the actual underlying strength of the evidence.” Id. at 6-7; Whitmore v.
Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012) (explaining that both
evidence supporting, and detracting from, a conclusion must be considered in
determining if an agency proves its affirmative defense in an IRA appeal).
Despite the administrative judge’s use of the phrase “even if,” he identified
and resolved the appellant’s challenges as to the strength of the agency’s stated
reasons for its actions. ID at 27-35. Thus, we discern no harmful error in his
expressed concern that the appellant failed to present this evidence to the agency
in the first instance. Id. at 7-8; Panter v. Department of the Air Force,
12
22 M.S.P.R. 281, 282 (1984) (providing that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for reversal of an
initial decision).
The appellant also argues that the administrative judge erred in a number of
other respects regarding the first Carr factor. PFR File, Tab 1 at 8-11. She
argues that the initial decision should be reversed because the administrative
judge found that, if he considered the appellant’s evidence, he still would have
found “ample evidence” supporting the agency action. Id. at 8 (referring to ID
at 27). She asserts that the proper standard is “strong evidence.” Id. We find
that the administrative judge correctly identified the standard. ID at 11, 25; see
Lu, 122 M.S.P.R. 335, ¶ 7. Read in context, the administrative judge’s statement
that “the agency had ample evidence for its actions,” is simply a restatement of
his finding that the agency had strong evidence for its actions. ID at 27.
The appellant’s 5-day suspension was based, in part, on her failure to
attend a scheduled counseling session with her supervisor on February 6, 2014.
IAF, Tab 10 at 110. The appellant argues that the administrative judge failed to
consider that “[equal employment opportunity] law does not require accusers to
confront their harassers.” PFR File, Tab 1 at 8. She asserts that she became ill
from a last-minute notice to meet with someone she believed was retaliating
against her. Id. The administrative judge found that the appellant’s claim, that
she could not meet with her supervisor because she fell ill, was not credible. ID
at 27-28.
When, as here, an administrative judge’s findings are “intertwined with
issues of credibility and an analysis of [the appellant’s] demeanor at trial,” the
Board affords them “special deference.” Purifoy v. Department of Veterans
Affairs, 838 F.3d 1367, 1373 (Fed. Cir. 2016). The Board may overturn such
findings only if it can articulate sound reasons for doing so. Haebe v.
Department of Justice, 288 F.3d 1288, 1300-01 (Fed. Cir. 2002). On review, the
appellant has not specifically challenged the administrative judge’s finding that
13
her claim of falling ill was not credible, and we discern no reasons for
overturning it.
Also regarding the 5-day suspension, the appellant argues, without citing to
the record, that the administrative judge failed to consider the appropriateness of
an alternative penalty, whether the action was inconsistent with the agency’s table
of penalties, and whether the penalty was excessive. PFR File, Tab 1 at 8.
However, because this is an IRA appeal, the appropriateness of the penalty
imposed by the agency is not at issue. Weaver v. Department of Agriculture,
55 M.S.P.R. 569, 576 (1992); see 5 C.F.R. § 1209.2(c) (listing the issues before
the Board in deciding the merits of an IRA appeal). In any event, we do not
discern a basis to conclude that the agency’s imposition of a 5-day suspension for
two instances of failure to follow instructions was overreaching. See Archerda v.
Department of Defense, 121 M.S.P.R. 314, ¶¶ 24-27 (2014) (finding that removal
for failure to follow an instruction to provide medical documentation was within
the tolerable limits of reasonableness).
Regarding the 10-day suspension, the appellant argues that it was unlawful
for the agency to discipline her for her June 2014 email concerning her position
misclassification. PFR File, Tab 1 at 8-10. As stated above, we agree with the
administrative judge that the June 2014 email was not protected. Thus, we cannot
grant corrective action based on the agency’s discipline for her violation of this
instruction. See 5 U.S.C. § 1221(e)(1) (requiring the Board to grant corrective
action, subject to the provisions of section 1221(e)(2), if it finds that a protected
disclosure or activity was a contributing factor in an agency personnel action).
The appellant was removed for, among other things, refusing to work on
certain cases and failing to account for her time during certain periods of work
between January and May 2015. IAF, Tab 5 at 20-23. The appellant asserts that
she refused to work on the cases because she lacked the requisite training. PFR
File, Tab 1 at 10; IAF, Tab 25 at 18-19. Because she failed to identify specific
evidence in the record to corroborate her assertion, we discern no basis to grant
14
her petition. See 5 C.F.R. § 1201.114(b) (explaining that a petition for review
must be supported by specific references to the record). She also asserts that the
administrative judge failed to consider her testimony that she continued to work
on other assignments during the time in question. PFR File, Tab 1 at 10. In fact,
it appears that the administrative judge did recount her testimony in this regard
and he found it not credible. ID at 33; see Purifoy, 838 F.3d at 1373.
Additionally, the appellant argues that the administrative judge failed to
apply the Douglas factors 6 to determine whether the penalty of removal was
reasonable. PFR File, Tab 1 at 10-11. As stated above, because this is an IRA
appeal, the agency is not required to prove that its penalty was reasonable. Nor,
in any case, does the appellant explain how application of the Douglas factors
would undermine the strength of the agency’s evidence that her removal resulted
from her misconduct. Accordingly, her argument is without merit.
The appellant has failed to show that the administrative judge erred
in his application of the second Carr factor.
The appellant argues that, in considering the strength of the agency’s
motive to retaliate, the administrative judge ignored the fact that the agency
attempted to suppress the disclosures, such as through her 10-day suspension.
PFR File, Tab 1 at 11. As discussed above, we find that the appellant’s June
2014 email, leading to her 10-day suspension, was not protected. Accordingly,
her 10-day suspension did not demonstrate that the agency was attempting to
suppress her protected disclosure or discourage others from making protected
disclosures. The appellant does not otherwise challenge the administrative
judge’s findings that the agency did not have a strong motive to retaliate, and we
decline to disturb these findings. ID at 35-37.
6
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
recognized a number of factors that are relevant for consideration in determining the
appropriateness of a penalty in a chapter 75 appeal.
15
The appellant has failed to show that the administrative judge erred
in his application of the third Carr factor.
The appellant argues that the administrative judge erroneously placed the
burden regarding the third Carr factor on her, in that he found that she presented
no evidence that the agency was more lenient with nonwhistleblowers. PFR File,
Tab 1 at 11. We find that the administrative judge merely observed that neither
the appellant nor the agency presented evidence regarding this issue and that he
did not place any burden on her to present evidence on this factor. ID at 37.
The appellant similarly argues that the administrative judge only
considered whether there was evidence of nonwhistleblowers being treated more
leniently, without considering whether the agency took similar actions against
nonwhistleblowers who are otherwise similarly situated. PFR File, Tab 1
at 11-12. We find that the administrative judge merely rephrased the correct legal
standard and did not apply an incorrect legal standard. ID at 37. In particular,
the appellant does not dispute the administrative judge’s finding that neither party
presented any relevant evidence as to Carr factor 3.
The appellant also argues that the agency’s failure to produce evidence on
the third Carr factor means that it failed to meet its clear and convincing burden.
Id. at 11-13. However, as the administrative judge correctly stated, the agency
does not have an affirmative burden to produce evidence as to each Carr factor.
ID at 11; Lu, 122 M.S.P.R. 335, ¶ 7. The administrative judge found that the
record regarding the third Carr factor was essentially empty and noted that both
parties agreed that disciplinary actions against managers like the appellant were
rare. ID at 37. Our reviewing court has held that “the absence of any evidence
relating to Carr factor three can effectively remove that factor from the analysis,”
but that the failure to produce evidence “may be at the agency’s peril,” and may
imperil the agency’s overall case. See Whitmore, 680 F.3d at 1374-75.
Moreover, when the agency fails to introduce relevant comparator evidence, the
third Carr factor cannot weigh in favor of the agency. Smith v. General Services
16
Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v. Environmental
Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018). Under the
circumstances of this appeal, however, we find that the third Carr factor is not a
significant consideration in our analysis of this case. In any event, we find that
the strength of the agency’s evidence outweighs the other two factors, and we
agree with the administrative judge that the agency proved by clear and
convincing evidence that it would have taken the same personnel actions against
the appellant in the absence of any protected disclosure. ID at 25-37.
Accordingly, for the reasons set forth above, we agree with the
administrative judge that the appellant is not entitled to corrective action as it
concerns her protected disclosures.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication of the appellant’s allegation of reprisal for protected
activity in accordance with this Remand Order. Because the record already was
developed in this matter, the administrative judge should exercise his discretion
in determining whether to accept additional evidence or hold a supplemental
17
hearing. The administrative judge may adopt his prior findings as to the
appellant’s claims of reprisal for protected disclosures in his remand initial
decision.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.