Opinion

Deborah Mouton-Miller v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Sep 11, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DEBORAH N. MOUTON-MILLER, DOCKET NUMBERS

Appellant, AT-1221-19-0742-W-4

AT-1221-21-0039-W-4

DEPARTMENT OF HOMELAND

SECURITY, DATE: September 11, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Danielle B. Obiorah , Esquire, Jonesboro, Georgia, for the appellant.

Shaun C. Southworth , Esquire, Atlanta, Georgia, for the appellant.

Marlon Martinez , Washington, D.C., 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.

FINAL ORDER

¶1 The appellant has filed petitions for review of the initial decisions in MSPB

Docket Nos. AT-1221-19-0742-W-4 (0742 appeal) and AT-1221-21-0039-W-4

(0039 appeal), which denied her requests for corrective action in these individual

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

right of action (IRA) appeals. Generally, we grant petitions such as these ones

only in the following circumstances: the initial decision contains erroneous

findings of material fact; the 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 administrative judge’s rulings during either the course of

the appeal or the 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. Title 5

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). For

the reasons discussed below, we JOIN these appeals. After fully considering the

filings in these appeals, we conclude that the petitioner has not established any

basis under section 1201.115 for granting the petitions for review. Therefore, we

DENY the petitions for review and AFFIRM the initial decisions, except as

expressly MODIFIED in Mouton-Miller v. Department of Homeland Security ,

MSPB Docket No. AT-1221-19-0742-W-1, to clarify the administrative judge’s

findings regarding the first Carr factor.

JOINT BACKGROUND

¶2 Effective April 2, 2017, the agency’s Office of the Inspector General

promoted the appellant to a GS-14 Supervisory Auditor, subject to her successful

completion of a 1-year supervisory probationary period. Mouton-Miller v.

Department of Homeland Security, MSPB Docket No. AT-1221-19-0742-W-1,

Appeal File (0742 IAF), Tab 15 at 28. In September 2017 and February 2018, the

appellant sent emails to agency management officials disclosing that audit

templates contained in the agency’s internal audit management and template

repository system, TeamMate, were missing some of the steps necessary to

perform audits in accordance with Generally Accepted Government Auditing

Standards (GAGAS) (also called the “Yellow Book” standard), as required by the

Inspector General Act of 1978, Pub. L. No. 95-452, 92 Stat. 1101.

Mouton-Miller v. Department of Homeland Security, MSPB Docket No. AT-1221-

21-0039-W-4, Appeal File (0039-W-4 AF), Tab 13 at 57-63. Effective March 29,

2018, the appellant’s then first-line supervisor issued a memorandum informing

her that she had failed to successfully complete her supervisory probationary

period and that she would be reassigned to a position as a non-supervisory GS-14

Communications Analyst, effective immediately. 0742 IAF, Tab 15 at 26-27.

¶3 On June 11, 2019, the appellant filed a complaint with the Office of Special

Counsel (OSC) alleging that the agency curtailed her supervisory probationary

appointment in retaliation for her protected disclosures concerning the agency’s

failure to comply with the GAGAS standards. 0742 IAF, Tab 10 at 8-46. By a

letter dated August 27, 2019, OSC closed its investigation into the appellant’s

complaint and notified her of her Board appeal rights. Id. at 47-48. On

August 28, 2019, the appellant filed an IRA appeal challenging the agency’s

decision to reassign her to a nonsupervisory position during her supervisory

probationary period. 0742 IAF, Tab 1.

¶4 Following her reassignment to a nonsupervisory position in March 2018, the

appellant applied to but was not selected for several detail assignments and

vacancies within the agency, as well as additional vacancies at other agencies.

Specifically, in August 2018, she made an inquiry to her supervisor regarding a

potential detail opportunity within the agency’s Audits and Inspections Quality

Assurance Division (IQO) but was ultimately not selected for the detail

assignment. Mouton-Miller v. Department of Homeland Security, MSPB Docket

No. AT-1221-21-0039-W-1, Initial Appeal File (0039 IAF), Tab 1 at 10;

0039-W-4 AF, Tab 13 at 72-77. On December 19, 2018, she applied for a

Supervisory Auditor position with the Defense Contract Audit Agency (DCAA)

within the Department of Defense and was notified that she was not selected for

that position on January 18, 2019. 0039 IAF, Tab 1 at 11. On March 4, 2019, she

volunteered for a second detail opportunity with IQO and was informed on

March 19, 2019, that she was not selected for the detail. Id.; 0039-W-4 AF,

Tab 13 at 29. In February 2020, she applied for a GS-15 position as a Director of

Quality, Management, and Training (QMT) within the agency, and was

interviewed for the position on February 20, 2020, but was ultimately not

selected. 0039-W-4 AF at 16, 21-24; 0039 IAF, Tab 1 at 7-9. Finally, she

applied to but was not selected for a position as a Lead Auditor with the

Environmental Protection Agency (EPA) in or around April 2020. 0039 IAF,

Tab 1 at 11-12.

¶5 On or about April 22, 2020, while her first IRA appeal was pending before

an administrative judge, the appellant filed a second complaint with OSC alleging

that the relevant agencies failed to promote or appoint her to the above-identified

positions in retaliation for her protected disclosures concerning the agency’s

failure to comply with GAGAS standards. 0039 IAF, Tab 4 at 10, Tab 5. On

August 23, 2020, after more than 120 days had elapsed since the appellant filed

her second OSC complaint, she filed a second IRA appeal alleging that agency

officials hindered or obstructed her ability to be appointed to or promoted to the

identified vacancies and detail opportunities in retaliation for her GAGAS

disclosure. 0039 IAF, Tab 1, Tab 4 at 10. Both appeals were eventually

reassigned to a new administrative judge. Mouton-Miller v. Department of

Homeland Security, MSPB Docket No. AT-1221-19-0742-W-4, Appeal File

(0742-W-4 AF), Tab 15; 0039-W-4 AF, Tab 6.

¶6 After holding the appellant’s requested hearings in each of the IRA appeals,

0742-W-4 AF, Tab 24; 0039-W-4 AF, Tab 28, the administrative judge issued

separate initial decisions, 0742-W-4 AF, Tab 26 (0742 ID); 0039-W-4 AF, Tab 30

(0039 ID). In the first initial decision, dated November 9, 2022, he determined

that the appellant had exhausted with OSC her claim that the agency ended her

supervisory probationary period and reassigned her to a nonsupervisory position

in retaliation for her disclosure concerning the agency’s failure to comply with

the GAGAS standards. 0742 ID at 7-8. He also incorporated the prior

administrative judge’s finding that the Board had jurisdiction over the appellant’s

IRA appeal, a finding that neither party challenges on review. 0742 ID at 2; 0742

IAF, Tab 17. The administrative judge also determined that the appellant proved

by preponderant evidence that she engaged in whistleblowing activity by making

a protected disclosure under 5 U.S.C. § 2302(b)(8) that the agency violated a rule

in connection with her GAGAS disclosures and that she was subjected to a

covered personnel action in retaliation for her disclosure based on her

reassignment to a nonsupervisory position. 0742 ID at 8. He further concluded

that the appellant proved that her GAGAS disclosure was a contributing factor in

the agency’s decision to reassign her. 0742 ID at 8. However, he determined that

the agency proved by clear and convincing evidence that it would have reassigned

the appellant even in the absence of her protected disclosure and consequently

found that she was not entitled to corrective action on her claim. 0742 ID at 9-16.

¶7 In the second initial decision, dated January 25, 2023, the administrative

judge concluded that the appellant established that she exhausted with OSC her

claim that in retaliation for her protected disclosure of the agency’s failure to

adhere to GAGAS standards, she was denied promotion or appointment

opportunities for the following positions: detail assignments to IQO in

August 2018 and March 2019; a Supervisory Auditor position with DCAA in

January 2019; a Director of QMT position in March 2020; and a Lead Auditor

position with EPA in April 2020. 0039 ID at 2, 7-8; 0039-W-4 AF, Tab 16. He

also found that the Board had jurisdiction over the appellant’s IRA appeal and

that she was entitled to a hearing on the merits, which neither party challenges on

review. 0039 ID at 3; 0039-W-4 AF, Tab 16 at 3-7. He further concluded that

the appellant proved by preponderant evidence that she made a protected

disclosure in connection with the agency’s failure to adhere to GAGAS standards

and that she was subjected to the above covered personnel actions. 0039 ID

at 7-8; 0039-W-4 AF, Tab 16.

¶8 Addressing whether the appellant’s disclosure was a contributing factor in

any of the nonselection decisions, the administrative judge determined that, aside

from the March 2019 IQO detail, the appellant failed to prove by preponderant

evidence that her whistleblowing disclosure was a contributing factor in any of

the remaining nonselection decisions. 0039 ID at 8-10, 12-15. Regarding the

March 2019 IQO detail nonselection, the administrative judge concluded that the

appellant proved by preponderant evidence that her GAGAS disclosure

contributed to the agency’s decision not to select her for this detail. 0039 ID

at 10-12. He nevertheless concluded that the agency proved by clear and

convincing evidence that it would not have selected her for the position even in

the absence of her protected disclosure, and so she was not entitled to corrective

action on her appeal. 0039 ID at 15-19.

¶9 The appellant timely filed a petition for review of each initial decision.

Mouton-Miller v. Department of Homeland Security , MSPB Docket No. AT-1221-

19-0742-W-4, Petition for Review (0742 PFR) File, Tab 1; Mouton-Miller v.

Department of Homeland Security, MSPB Docket No. AT-1221-21-0039-W-4,

Petition for Review (0039 PFR) File, Tab 5. The agency filed responses in

opposition to each petition for review. 0742 PFR File, Tab 3; 0039 PFR File,

Tab 7.

DISCUSSION OF ARGUMENTS ON REVIEW

We join these appeals.

¶10 Joinder of two or more appeals filed by the same appellant may be

appropriate when joinder would expedite processing of the appeals and not

adversely affect the interests of the parties. Tarr v. Department of Veterans

Affairs, 115 M.S.P.R. 216, ¶ 9 (2010); Boechler v. Department of the Interior,

109 M.S.P.R. 542, ¶ 14 (2008), aff’d per curiam, 328 F. App’x 660 (Fed. Cir.

2009); 5 C.F.R. § 1201.36(a)(2), (b). We join these appeals on review because

the facts are interrelated, and joinder will expedite processing without adversely

affecting the interests of the parties. Specifically, the two IRA appeals concern

the same alleged protected disclosure, and all of the allegedly retaliatory

personnel actions occurred within the 2-year period from 2018 through 2020 and

involved many of the same agency officials. Accordingly, joinder of these

appeals is appropriate.

Legal standard applicable to IRA appeals.

¶11 The Board has jurisdiction over an IRA appeal if the appellant proves by

preponderant evidence that she exhausted her administrative remedy 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. § 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the protected

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).

Edwards v. Department of Labor, 2022 MSPB 9, ¶ 8, aff’d, No. 2022-1967,

2023 WL 4398002 (Fed. Cir. July 7, 2023); Salerno v. Department of the Interior,

123 M.S.P.R. 230, ¶ 5 (2016).

¶12 To establish the contributing factor criterion at the jurisdictional stage, the

appellant need only raise a nonfrivolous allegation that the fact of, or the content

of, the disclosure or activity was one factor that tended to affect the personnel

action in any way. Abernathy v. Department of the Army, 2022 MSPB 37, ¶ 15.

One way to establish this criterion is the knowledge/timing test, in which the

appellant may demonstrate 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. Personnel actions occurring within 1 to 2 years

after the protected disclosure are sufficient to meet the timing portion of the test.

Id. The knowledge portion of the knowledge/timing test can be met with

allegations of either actual or constructive knowledge. Id. An appellant may

establish an official’s constructive knowledge of a protected activity by

demonstrating that an individual with actual knowledge of the activity influenced

the official accused of taking the retaliatory action. Id.

¶13 However, the knowledge/timing test is not the only way to prove

contributing factor. Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 14

(2012). If an appellant fails to satisfy the knowledge/timing test, the Board will

also consider other evidence, such as evidence pertaining to the strength or

weakness of the agency’s reasons for taking the personnel action, whether the

whistleblowing was personally directed towards the officials taking the action,

and whether these individuals had a desire or motive to retaliate against the

appellant. Chambers v. Department of Homeland Security, 2022 MSPB 8, ¶ 15;

Dorney, 117 M.S.P.R. 480, ¶ 15.

¶14 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. 5 U.S.C. § 1221(e)(1); Salerno, 123 M.S.P.R. 230, ¶ 5.

If she does so, 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 or activity. 5 U.S.C. § 1221(e)(2); Salerno,

123 M.S.P.R. 230, ¶ 5. In determining whether an agency has met this burden,

the Board will consider all of the relevant factors, including the following (the

“Carr factors”): (1) the strength of the agency’s evidence in support of the

action; (2) the existence and strength of any motive to retaliate on the part of the

agency officials who were involved in the decision; and (3) any evidence that the

agency takes similar actions against employees who are not whistleblowers but

who are otherwise similarly situated. Soto v. Department of Veterans Affairs,

2022 MSPB 6, ¶ 11; see also 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.

Rather, the Board will weigh the 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). The Board considers all of the evidence

presented, including evidence that detracts from the conclusion that the agency

met its burden. Soto, 2022 MSPB 6, ¶ 11; see also Whitmore v. Department of

Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012). If the agency fails to meet its

burden, the Board will order corrective action in favor of the appellant.

Abernathy, 2022 MSPB 37, ¶ 17.

We modify the initial decision in the 0742 appeal to clarify the administrative

judge’s findings regarding the first Carr factor but still agree with his conclusion

that this factor favors the agency.

¶15 The appellant argues on review in the 0742 appeal that the administrative

judge erred by finding that each of the Carr factors weighed in the agency’s

favor. 0742 PFR File, Tab 1 at 9-11. We find no reason to disturb the

administrative judge’s finding that the agency met its burden of proving by clear

and convincing evidence that it would have reassigned the appellant to a

nonsupervisory position in the absence of her protected disclosure, but we take

this opportunity to clarify his findings as to the first Carr factor.

¶16 In the initial decision, the administrative judge concluded that the first Carr

factor, which concerns the strength of the agency’s evidence in support of its

action, favored the agency. 0742 ID at 9-13. Specifically, he determined that the

agency’s stated reason for reassigning the appellant to a nonsupervisory position

based on her failure to complete her supervisory probationary period was

supported by the record, acknowledging that even though she had a positive

Fiscal Year (FY) 2017 performance appraisal rating, her supervisors and other

agency management officials credibly identified performance deficiencies in the

period immediately prior to the appellant’s reassignment, including her

micromanagement of her subordinates and her unwillingness to receive

constructive criticism and feedback. 0742 ID at 9-12.

¶17 In making this finding, the administrative judge highlighted testimony from

the appellant’s second-level supervisor recounting that she expressed concerns to

the appellant about how she managed her team and about how one of the audits

the appellant was managing was progressing. 0742 ID at 11-12; 0742 ID

at 11-12; 0742-W-4 AF, Tab 24, Hearing Recording (0742 HR) 3 at 1:30-8:45

(testimony of the appellant’s second-line supervisor). The second-line supervisor

also recounted instances when the appellant repeatedly cut her off and accused the

supervisor of “disrespect” and of using an inappropriate “tone,” which the

appellant’s first-line supervisor considered to be inappropriate and for which he

counseled the appellant. 2 0742 ID at 11-12; 0742 HR 2 at 5:30-10:35 (testimony

of the appellant’s first-line supervisor); 0742 HR 3 at 9:30-21:00 (testimony of

the appellant’s second-line supervisor).

¶18 Finally, in finding that the agency established that the reassignment action

was supported and that the first Carr factor favored the agency, the administrative

judge opined that the Board and the U.S. Court of Appeals for the Federal Circuit

(Federal Circuit) had not articulated any specific guidance for applying the clear

and convincing evidentiary standard to the “very low threshold” for terminations

of probationary employees, noting that agencies have broad discretion in

determining an employee’s fitness for a position during the probationary period.

0742 ID at 9, 12-13 (citing Lewis v. Department of the Army, 63 M.S.P.R. 119,

126 (1994)); see Levy v. Department of Labor, 118 M.S.P.R. 619, ¶ 11 (2012)

(explaining that the Board lacks jurisdiction over the return of a supervisory

employee to his prior position during his probationary period) . He nevertheless

acknowledged that the Board has held that the strength of the agency’s evidence

supporting its action must not turn on the protections to which an appellant is

entitled and determined that the agency’s reasons for terminating the appellant’s

Additionally, addressing the appellant’s FY 2017 performance appraisal, the

appellant’s former first-line supervisor testified that although the appellant received a

summary rating of “Achieved Excellence,” the highest possible rating in the agency’s

4-tiered performance rating scale, she received “Exceeded Expectations” ratings for the

critical elements of “Communication,” “Teamwork and Cooperation,” and

“Leadership,” which were categories the supervisor identified as critical in assessing

the appellant’s supervisory potential. 0742 HR 1 at 17:05-23:40 (testimony of the

appellant’s former first-line supervisor).

supervisory appointment during her probationary period were credibly explained

in finding that the first Carr factor favored the agency. 0742 ID at 13.

¶19 In Lewis v. Department of the Army, the case the administrative judge cited

for the proposition that the agency proved by clear and convincing evidence that

it would have terminated the appellant absent her protected disclosures, the Board

observed that the appellant in that case was serving in a probationary period at the

time his supervisor decided to terminate his employment and credited the

supervisor’s testimony expressing concern that the appellant would continue to

encounter issues if granted a permanent position, noting that the supervisor’s

stated concern was consistent with the Office of Personnel Management’s

regulations “mandating that an agency use the probationary period to determine

an employee’s fitness, and that it ‘shall terminate his services during this period

if he fails to demonstrate fully his qualifications for continued employment.’”

Lewis, 63 M.S.P.R. at 126. However, in Hugenberg v. Department of Commerce,

120 M.S.P.R. 381, ¶ 19 & n.4 (2013), the Board acknowledged the appellant’s

argument that the administrative judge erred by referring to him as a

“probationary employee,” and by further finding that the agency’s stated reason

for terminating him was a “facially legitimate reason for termination” and that the

agency had “great latitude in assessing whether to retain [a probationary]

employee” during the probationary period, in the context of analyzing whether the

agency met its clear and convincing evidence burden. The Board clarified that

despite the appellant’s status as a probationer, “the evidentiary burden on the

agency with respect to a whistleblower reprisal claim is no less than when the

appellant is a tenured employee,” and the agency “must still show by clear and

convincing evidence that it would have taken the same personnel action in the

absence of whistleblowing.” Id., ¶ 19 n.4.

¶20 Consequently, to whatever extent the administrative judge in this case may

have implied that a lesser burden than “clear and convincing evidence” is

applicable in IRA appeals when the appellant is serving in a probationary period,

we modify the initial decision to clarify the appropriate standard. Nevertheless, a

different result is not warranted here because we agree with the administrative

judge’s ultimate conclusion that the entirety of the record, including the

documentary and testimonial evidence from agency management officials

addressing the appellant’s performance and management deficiencies, supports a

finding that the agency proved by clear and convincing evidence that it would

have reassigned the appellant to a nonsupervisory position even in the absence of

her protected disclosure.

The administrative judge appropriately weighed the second and third Carr factors.

¶21 Addressing the second Carr factor, the appellant argues on review that the

administrative judge improperly discounted the importance of her whistleblowing

disclosure and the fact that steps were being taken at the highest levels to address

deficiencies in the agency’s audit process in finding no agency motive to retaliate

against the appellant because of her disclosure. 0742 PFR File, Tab 1 at 10-11;

0742 ID at 13-14. As the administrative judge correctly observed, although

several audits were rescinded following a peer review of the agency’s auditing

process by an external agency, there is no evidence in the record that the

appellant’s disclosures regarding GAGAS-related deficiencies had any relation to

the rescinded audits or that any of the agency officials involved in the

probationary termination decision were implicated by the appellant’s disclosure.

0742 ID at 13-14; see Miller v. Department of Justice, 842 F.3d 1252, 1261-62

(Fed. Cir. 2019) (noting that in analyzing the second Carr factor, retaliatory

motive should be viewed broadly, explaining that “[t]hose responsible for the

agency’s performance overall may well be motivated to retaliate even if they are

not directly implicated by the disclosures, and even if they do not know the

whistleblower personally, as the criticism reflects on them in their capacities as

managers and employees”).

¶22 There is also no evidence that the appellant had any involvement in the

single peer-reviewed audit that was rescinded due to noncompliance with

GAGAS, and agency officials testified consistently that the appellant’s

disclosures of the shortcoming of the agency’s audit templates had no bearing on

the decision to terminate her supervisory probationary period. 0742-W-4 AF,

Tab 22 at 108-10; 0742 HR 2 at 26:00-27:30 (testimony of the appellant’s former

first-line supervisor) (denying that he gave any weight to the appellant’s

whistleblowing disclosure in deciding to terminate the appellant’s probationary

period, noting that the audit templates were “not cast in stone,” and that it was his

expectation that employees would alter the templates to resolve any deficiencies

that may have been discovered); 0742 HR 3 at 22:10-23:30 (testimony of the

appellant’s second-line supervisor) (stating that the appellant’s whistleblowing

disclosure “meant nothing to [her]” and had “no effect” on her decision to curtail

the appellant’s probationary period). Accordingly, we find no reason to disturb

the administrative judge’s findings on this issue.

¶23 Regarding the third Carr factor, which considers whether the agency takes

similar actions against similarly situated non-whistleblowers, the administrative

judge concluded that the purported comparator the appellant presented was not a

valid comparator for the following reasons: (1) unlike the appellant, she was not

serving in a supervisory probationary period; (2) the performance deficiency the

appellant identified—the retraction of an audit—was not the type of deficiency

that ordinarily would result in a supervisory termination; and (3) the agency

officials consistently testified that the purported comparator was not at fault for

the alleged deficiency that resulted in the retraction of an audit. 0742 ID

at 14-15. The appellant argues on review that the employee was a valid

comparator because she performed the same essential job functions as the

appellant and was managed by the same supervisors. 0742 PFR File, Tab 1 at 11.

¶24 Under the third Carr factor, the Board considers evidence that the agency

takes similar actions against employees who are not whistleblowers but who are

otherwise similarly situated. Carr, 185 F.3d at 1323. Because the burden rests

with the agency to prove that it would have taken the same action absent the

protected whistleblowing activity, the agency’s failure to produce comparator

evidence if it exists “may be at the agency’s peril,” and “may well cause the

agency to fail to prove its case overall.” Soto, 2022 MSPB 6, ¶ 18 (quoting

Whitmore, 680 F.3d at 1374-75). Additionally, the Federal Circuit has made clear

that the “importance and utility [of the third Carr factor] should not be

marginalized by reading it so narrowly as to eliminate it as a helpful analytical

tool.” Whitmore, 680 F.3d at 1374.

¶25 We nevertheless agree with the administrative judge that the employee the

appellant identified is not a valid comparator. As the administrative judge

correctly observed, the appellant’s supervisory period was ultimately curtailed

based on her performance and management deficiencies, particularly related to

her inability to receive constructive feedback and to adequately manage her team ,

and not due to the retraction of an audit. 0742 ID at 11-12; 0742 HR 2

at 5:30-10:35 (testimony of the appellant’s first-line supervisor discussing the

appellant’s supervisory deficiencies during the period immediately preceding the

termination of her probationary period); 0742 HR 3 at 1:30-8:45, 9:30-21:00

(testimony of the appellant’s second-line supervisor discussing the same).

Consequently, the purported comparator employee, who had an audit retracted, is

not a valid comparator.

¶26 In sum, we agree with the administrative judge’s finding that all three Carr

factors weigh in the agency’s favor and so the agency proved by clear and

convincing evidence that it would have terminated the appellant’s supervisory

probationary period even in the absence of her protected whistleblowing activity.

Consequently, we affirm the administrative judge’s finding that the appellant is

not entitled to corrective action in the 0742 appeal.

We decline to disturb the administrative judge’s findings in the 0039 appeal and

affirm the initial decision in that appeal.

¶27 The appellant argues on review in the 0039 appeal that the administrative

judge erred by finding that she failed to prove that her protected disclosure was a

contributing factor in her nonselection for the August 2018 IQO detail, the

February 2020 QMT Director position, and the April 2020 EPA Lead Auditor

position. 3 0039 PFR File, Tab 5 at 10-24. She also argues that the administrative

judge erred by finding that the agency proved by clear and convincing evidence

that the agency would have failed to select her for the 2019 IQO detail absent her

protected disclosure. Id. at 24-29.

2018 IQO detail nonselection

¶28 Regarding her nonselection for the August 2018 IQO detail, the appellant

argues that her second-line supervisor, who had knowledge of her protected

disclosure, provided information about the detail opportunity to her first-line

supervisor, thereby influencing the decision not to select her for the detail and

that the administrative judge erred by determining that her claim that the

second-line supervisor influenced the nonselection decision was “purely

speculative.” 0039-W-4 AF, Tab 5 at 8, 11, 13-14.

¶29 In the initial decision, the administrative judge considered but rejected the

appellant’s argument that her second-line supervisor influenced the decision not

to select her for this detail, noting that the supervisor credibly testified that her

only communication to the appellant’s first-line supervisor regarding the detail

was to inform her that a memorandum would be issued regarding the application

process for the position. 0039-W-4 AF at 9. Additionally, although the appellant

alleged that her second-line supervisor influenced her first-line supervisor by

discussing the detail with her, as she acknowledges on review, her first-line

supervisor was not the selecting official for the detail; instead, the Assistant

Aside from stating that she was not referred for the Supervisory Auditor position with

DCAA “although she was referred for the types of positions in the past,” the appellant

does not otherwise address this nonselection decision or the administrative judge’s

finding that she had not provided any documentary or testimonial evidence regarding

her nonselection for the DCAA position and so she failed to meet her jurisdictional

burden for this position. 0039 PFR File, Tab 5 at 23; 0039 ID at 10. Accordingly, we

find no reason to disturb the administrative judge’s findings regarding this purported

personnel action and have not addressed it further.

Inspector General (AIG) for Audits was the selecting official, and the

administrative judge correctly determined that the appellant had not provided any

evidence that her second-line supervisor influenced the AIG’s decision not to

select the appellant for the position. 0039 PFR File, Tab 5 at 12; 0039-W-4 AF,

Tab 13 at 33-36; 0039 ID at 9-10.

¶30 Regarding other evidence, such as evidence pertaining to the strength or

weakness of the agency’s reasons for taking the personnel action, whether the

whistleblowing was personally directed towards the officials taking the action,

and whether these individuals had a desire or motive to retaliate against the

appellant, as the administrative judge noted, the appellant did not call the

selecting official for this position, the AIG, to testify at the hearing, and there is

no other evidence in the record regarding the agency’s reasons for choosing the

eventual selectee for this position. 4 Additionally, there is no evidence indicating

that the appellant’s whistleblowing disclosure concerning the agency’s failure to

comply with the GAGAS standards was personally directed at the AIG. Further,

although the appellant testified that all of the Deputy Assistant Inspectors General

had input in the decision not to select her for the 2018 IQO detail—a group that

would have included the appellant’s second-line supervisor who was aware of her

whistleblowing activity—she has not offered any evidence or argument indicating

The appellant also argues on review that the agency committed harmful error by

failing to inform her that two of her potential witnesses had retired from Federal service

prior to the scheduled hearing and that the administrative judge erred when he “abused

his discretion and did not enforce compliance” on the agency based on its failure to

inform the appellant of the retirement of the two potential witnesses. 0039 PFR File,

Tab 5 at 11-13. As the agency correctly notes, the administrative judge approved both

retired former Federal employees as witnesses for the appellant prior to the hearing, and

the appellant did not object to the prehearing conference summary informing her that

she was responsible for producing both witnesses at the hearing. 0039-W-4 AF, Tab 23

at 4-5. Additionally, the appellant did not seek subpoenas for either witness and did not

raise any objections on the record at the hearing regarding the unavailability of either

witness. 0039-W-4 AF, Tab 28, Hearing Recording 5 at 0:15-0:50 (statements by the

appellant’s attorney acknowledging that both witnesses had retired from Federal service

and were unavailable to testify at the hearing); see 5 C.F.R. § 1201.85 (setting forth the

procedures by which parties may seek and enforce Board subpoenas for documents or

testimony).

that her second-line supervisor influenced the AIG’s decision not to select her for

this position. 0039-W-4 AF, Tab 28, Hearing Recording (0039 HR) at 7:30-8:35

(testimony of the appellant). 5 Accordingly, we conclude that the appellant has

also failed to establish contributing factor based on evidence other than

knowledge/timing evidence. See Dorney, 117 M.S.P.R. 480, ¶ 15.

March 2020 QMT Director nonselection

¶31 Regarding her nonselection for the QMT Director position in March 2020,

the appellant principally challenges the administrative judge’s credibility

determinations. 0039 PFR File, Tab 5 at 16-18, 26. Specifically, she asserts that

the testimony of one of the officials who served on the selection panel for this

position concerning the participation of another panel member was inconsistent

and contradictory, and notes that an administrative judge in a different Board

appeal declined to credit that witness’s testimony. Id. She also argues that

agency officials provided varying and inconsistent testimony about the reason she

was not selected for the position and so the administrative judge erred by

crediting their testimony concerning this nonselection. Id. at 26.

¶32 The appellant’s challenges to the administrative judge’s credibility

determinations do not warrant reaching a different conclusion here. The

evaluation of witness credibility is a matter within the administrative judge’s

discretion, and an administrative judge’s credibility determinations are “virtually

unreviewable.” Frey v. Department of Labor, 359 F.3d 1355, 1361 (Fed. Cir.

2004); Mithen v. Department of Veterans Affairs, 122 M.S.P.R. 489, ¶ 13 (2015),

aff’d, 652 F. App’x 971 (Fed. Cir. 2016). The Board will not disturb an

administrative judge’s findings when he considered the evidence as a whole, drew

appropriate inferences, and made reasoned conclusions on issues of credibility.

Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997); Broughton v.

Indeed, the appellant failed to elicit any testimony from her second-line supervisor

about any potential influence she may have had over the appellant’s nonselection for the

August 2018 IQO detail. 0039 HR 3 at 31:20-53:46 (testimony of the appellant’s

second-line supervisor).

Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987). The

Board must defer to an administrative judge’s credibility determinations when

they are based, explicitly or implicitly, on observing the demeanor of witnesses

testifying at a hearing; the Board may overturn such determinations only when it

has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice,

288 F.3d 1288, 1301 (Fed. Cir. 2002). Moreover, mere disagreement with an

administrative judge’s credibility determinations and findings of fact fail to

provide a basis for granting review. Diggs v. Department of Housing and Urban

Development, 114 M.S.P.R. 464, ¶ 8 (2010).

¶33 Regarding the appellant’s specific challenge to the testimony by one of the

panel members for the QMT position, the appellant relies on inconsistencies in

his testimony concerning whether the appellant’s second-line supervisor served as

a panel member for the selection for this vacancy in arguing that his testimony

was not credible, highlighting his testimony stating at different times that the

second-line supervisor was not on the panel and at other times that he could not

recall or was uncertain whether she was on the panel. 0039 PFR File, Tab 5

at 16-18. She also asserts that proceedings in a prior Board appeal were “halted”

and the appeal was eventually resolved against the agency when the

administrative judge deciding that appeal was presented with information that

called into question this witness’s credibility. Id. at 18.

¶34 Here, although the administrative judge did not make specific

demeanor-based credibility determinations or cite to the Board’s decision in

Hillen v. Department of the Army, 35 M.S.P.R. 453 (1987), in the initial decision,

he heard live testimony from the witnesses, and his decision to credit specific

testimony must be deemed to be at least implicitly based upon witness demeanor.

See Little v. Department of Transportation , 112 M.S.P.R. 224, ¶ 4 (2009).

Further, the only testimony the administrative judge cited from this panelist

regarding this vacancy concerned whether the appellant’s second-line supervisor

participated in interviews for the QMT Director vacancy, and the other two

panelists, as well as the appellant’s second-line supervisor, all provided

consistent testimony stating that the second-line supervisor was involved in the

panel but did not participate in the appellant’s interview. 0039 HR 2 at 5:30-9:03

(testimony of interview panelist); 0039 HR 3 at 35:50-37:50 (testimony of the

appellant’s second-line supervisor); see Hillen, 35 M.S.P.R. at 458 (identifying

facts an administrative judge should consider in making credibility findings,

including the consistency or inconsistency of a witness’s version of events with

other evidence). The administrative judge ultimately concluded that the appellant

had not provided any evidence demonstrating that her second-level supervisor

informed or otherwise influenced the other panel members in the decision not to

select the appellant, and the appellant has not provided any reason to disturb this

finding on review. 0039 ID at 13-14. Consequently, to the extent the

administrative judge erred by relying on the panelist’s testimony on this point,

any such error is immaterial and was not prejudicial to the appellant. See

Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (explaining

that an adjudicatory error that is not prejudicial to a party’s substantive rights

provides no basis for reversal of an initial decision).

April 2020 EPA Lead Auditor

¶35 With respect to the appellant’s nonselection for the EPA Lead Auditor

position in April 2020, she appears to argue on review that the administrative

judge erred by finding that her claim that an agency employee who later became

employed by the EPA may have influenced her nonselection for this position was

“wholly speculative” and so she failed to establish that her protected disclosure

was a contributing factor in her nonselection for this position. 0039 PFR File,

Tab 5 at 22-23. Specifically, the appellant testified that during her interview for

the EPA Lead Auditor position, the interviewing official asked her questions

about actual or potential equal employment opportunity (EEO) complaints against

her, and at the time the appellant was engaged in EEO mediation against her

employing agency, which raised her suspicion that someone may have alerted the

interviewing official to her ongoing EEO activity. 0039 HR 4 at 10:50-11:59

(testimony of the appellant). She testified that her suspicion was further elevated

when she later found out that a former agency official later became employed by

EPA. Id. at 12:00-12:35 (testimony of the appellant).

¶36 Addressing the appellant’s testimony on this point in the initial decision, the

administrative judge noted that the appellant had not requested any witnesses

from EPA to testify at the hearing and that the former agency official who later

joined EPA denied communicating with anyone at EPA about the appellant. 0039

ID at 14-15. The administrative judge further observed the fact that the former

agency official who later joined EPA did not first interview with that agency until

June 2020 and was not hired until September 2020—the earlier date being more

than 2 months after EPA failed to select the appellant for the Lead Auditor

position. ID at 15. Consequently, he determined that the appellant failed to

prove by preponderant evidence that her protected disclosure concerning the

agency’s purported noncompliance with GAGAS was a contributing factor in her

nonselection for this position. 0039 ID at 15.

¶37 Regarding other potential evidence for proving contributing factor, the only

documentary evidence the appellant provided regarding this position was a copy

of a LinkedIn profile page for the eventual selectee for the position as well as a

“Candidate Comparison” spreadsheet she created comparing her credentials to

those of the selectee. 0039 IAF, Tab 1 at 13; 0039-W-4 AF, Tab 13 at 55-56. As

the administrative judge correctly observed, the appellant failed to produce

witness testimony or any other documentary evidence from a selecting official at

EPA for this position or even to identify the EPA selecting official for this

position, and so there is no evidence in the record pertaining to the potential

strength or weakness of EPA’s nonselection decision. 0039 ID at 15; see Dorney,

117 M.S.P.R. 480, ¶ 15. The appellant also has not alleged that her

whistleblowing activity was personally directed at either the EPA selecting

official for this position or at the agency official who later joined EPA, or that

either official had any desire or motive to retaliate against her. Consequently, we

agree with the administrative judge’s finding that the appellant failed to prove

that her whistleblowing disclosure was a contributing factor in this nonselection

decision.

March 2019 IQO detail

¶38 Finally, regarding her nonselection for the March 2019 IQO detail position,

the appellant appears to argue that the administrative judge improperly weighed

the Carr factors in finding that the agency proved by clear and convincing

evidence that it would not have selected the appellant for this detail appointment

absent her whistleblowing activity. 0039 PFR File, Tab 5 at 25-29. Specifically,

the appellant argues that the agency’s stated reasons for failing to select her for

the March 2019 IQO detail are weak, and so the administrative judge erred by

finding that this factor weighed in the agency’s favor. Id. at 25. To support her

argument, the appellant points to her positive performance ratings and alleges

that the agency’s stated reasons for choosing the selectee for the detail, including

the fact that the selectee could be more readily assigned with minimal disruption,

were “incredulous,” highlighting testimony from her former first-line supervisor

noting that the appellant was a good fit for the detail and that she could have

naturally transitioned to the position. Id. She also highlights the fact that her

second-line supervisor who was aware of her whistleblowing activity was

involved in the selection decision and appears to suggest that the supervisor may

have influenced her nonselection. Id.

¶39 The administrative judge specifically addressed the appellant’s argument

challenging the agency’s stated reasons for choosing the selectee, crediting the

documentary evidence from the selecting official noting that the selectee was

chosen, in part, due to the minimal disruption her reassignment would cause, as

well as the testimony from two other agency officials stating that the selectee had

more relevant experience than the appellant. 0039 ID at 16; 0039-W-4 AF,

Tab 13 at 27; 0039 HR 1 at 27:50-31:50 (testimony from a former Deputy AIG

for Audits) (acknowledging that the former AIG was the selecting official for this

detail and that the selectee had previously worked in the IQO office and was the

“best suited” for that position).

¶40 The administrative judge also addressed the appellant’s argument that the

selecting official for the March 2019 IQO detail had constructive knowledge of

the appellant’s whistleblowing activity in analyzing the second Carr factor. 0039

ID at 16-17. Specifically, the administrative judge acknowledged the appellant’s

argument that her second-line supervisor who had actual knowledge of the

whistleblowing activity may have influenced the selecting official. 0039 ID

at 16-17. He nevertheless appropriately concluded that there was no evidence

that the second-line supervisor exerted any influence on the selecting official,

noting that there was no testimonial or documentary evidence showing that the

supervisor influenced the AGI’s nonselection decision. 0039 ID at 17 (citing

Staub v. Proctor Hospital, 562 U.S. 411 (2011)).

¶41 The administrative judge further determined that there was no evidence of

an institutional or professional retaliatory motive because knowledge of the

appellant’s disclosure within the agency was very limited, there was no evidence

that the appellant’s GAGAS disclosure broadly implicated management officials

or employees in general, and the management officials credibly testified that the

impact and import of the appellant’s disclosure was minimal. 0039 ID at 17-18

(citing Soto, 2022 MSPB 6, ¶ 14); 0039 HR 3 at 46:30 (testimony of the

appellant’s second-line supervisor acknowledging that she received an email from

the appellant regarding her whistleblowing disclosure but that the email “meant

nothing to [her]” when she received it); see Miller, 842 F.3d at 1261-62. Aside

from generally reasserting that her whistleblowing disclosure could have

reflected poorly on her second-line supervisor and the agency at large, the

appellant has not provided any additional evidence of potential retaliatory motive

by any agency official, and we find no reason to disturb the administrative

judge’s findings regarding the second Carr factor.

¶42 Finally, the appellant argues on review that the administrative judge erred

by finding that there were not any valid comparators in analyzing the third Carr

factor and identifies two selectees that she argues were properly offered as

comparators. 0039 PFR File, Tab 5 at 28-29; 0039 ID at 18-19. One of the

individuals was selected for the QMT Director position in March 2020, and the

other individual was selected for a position as Audit Director of the Infrastructure

Protection and Disaster Management Division (formerly known as the Disaster

Management and Infrastructure Protection division). 0039 IAF Tab 6 at 9;

0039-W-4 AF, Tab 13 at 38-39. There is no evidence in the record that either

individual applied to or was selected for the March 2019 IQO detail, and so the

appellant has failed to prove that they were treated more favorably than she was

for the purpose of analyzing the third Carr factor in the context of the appellant’s

nonselection for the March 2019 IQO detail position.

¶43 In sum, we agree with the administrative judge’s finding that the appellant

failed to meet her burden of proving that her protected disclosure was a

contributing factor in her nonselection for the August 2018 IQO detail, the

February 2020 QMT Director position, the January 2019 DCAA Supervisory

Auditor position, and the April 2020 EPA Lead Auditor position. We further

agree with his finding that the agency proved by clear and convincing evidence

that it would not have selected the appellant for the March 2019 IQO detail even

in the absence of her protected whistleblowing activity. Consequently, we affirm

the administrative judge’s finding that the appellant is not entitled to corrective

action in the 0039 appeal.

¶44 For the foregoing reasons, we deny the petitions for review and affirm the

initial decisions in these joined appeals, as modified herein.

NOTICE OF APPEAL RIGHTS 6

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. 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, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 7 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the