# Mary Reese v. Department of the Navy

> Merit Systems Protection Board · January 31, 2025 · 2025 MSPB 1

URL: https://www.frixlaw.com/law-library/cases/10792613

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** January 31, 2025
- **Citations:** 2025 MSPB 1
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10792613

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2025 MSPB 1
Docket No. DC-1221-21-0203-W-1

Mary Reese,
Appellant,
v.
Department of the Navy,
Agency.
January 31, 2025

Richard R. Renner , Esquire, Raleigh, North Carolina, for the appellant.
Kristin Roberts , Esquire, and Michael S. Causey , Esquire,
Washington, D.C., for the agency.
Andres M. Grajales , Esquire, Washington, D.C., for amicus curiae,
the American Federation of Government Employees.
Debra D’Agostino , Esquire, Washington, D.C., and Rosa M. Koppel ,
Esquire, McLean, Virginia, for amicus curiae, the National Employment
Lawyers Association and the Metropolitan Washington Employment
Lawyers Association.
Julie D. Yeagle , Esquire, and Gregory Giaccio , Esquire, Washington, D.C.,
for amicus curiae, the Office of Special Counsel.
Martin Akerman , Arlington, Virginia, pro se, amicus curiae.
Pere Jarboe , Annapolis, Maryland, pro se, amicus curiae.

BEFORE

Cathy A. Harris, Chairman*
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member**

*The Board members voted on this decision before
the effective date of Acting Chairman Kerner’s designation.
**Member Kerner recused himself and
did not participate in the adjudication of this appeal.
2

OPINION AND ORDER

¶1 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 set forth below, we DENY the petition for review.
We AFFIRM the initial decision, as MODIFIED, to consider the appellant’s claims
of additional protected activity unaddressed in the initial decision and to
supplement the administrative judge’s analysis of whether the agency rebutted the
appellant’s prima facie case of reprisal. In so doing, we resolve some of the
questions of law addressed in the order to the parties and the Federal Register
notice issued by the Board in this case, see 89 Fed. Reg. 28816-01 (Apr. 19, 2024),
and thereby clarify the scope of 5 U.S.C. § 2302(b)(9)(C), which prohibits reprisal
for “cooperating with or disclosing information to the Inspector General (or any
other component responsible for internal investigation or review) of an agency, or
the Special Counsel, in accordance with applicable provisions of law.”

BACKGROUND
¶2 The appellant joined the agency in May 2019, as a Public Affairs
Specialist. Initial Appeal File (IAF), Tab 75 at 4. In a January 2020 performance
assessment, the agency described her contributions during 2019 positively. IAF,
Tab 12 at 21-24. However, the agency terminated the appellant that same month
during her probationary period. Id. at 25-33. The termination letter described her
work products as typically adequate but indicated that the agency was nevertheless
terminating her for, inter alia, “rude, disrespectful, insubordinate, and demeaning”
conduct, her “refus[al] to interact with coworkers due to a perceived slight,” her
“instigat[ing] and escalat[ing] interactions . . . on what should be simple
coordination actions,” and her filing a complaint about a coworker that the agency
deemed to be “false and misleading.” Id. at 27-28. The appellant’s first-line
supervisor signed the termination letter, stating that he had seen this conduct
3

himself, that the appellant’s second-level supervisor had reported similar conduct,
and that the appellant’s conduct had persisted despite counseling. Id. at 28, 32.

¶3 Following her probationary termination, the appellant filed a
complaint with the Office of Special Counsel (OSC) alleging whistleblower
reprisal. IAF, Tab 7 at 9, Tab 8 at 4-9. OSC terminated its investigation in
December 2020, IAF, Tab 8 at 18-21, and this IRA appeal followed, IAF, Tab 1.

¶4 The administrative judge determined that the appellant established
jurisdiction over some of her allegations. IAF, Tab 18. In particular, the
administrative judge concluded that the appellant presented nonfrivolous
allegations regarding the following alleged whistleblowing disclosures and
activities that she also exhausted with OSC: (1) disclosures about meetings
between her first-line supervisor, second-line supervisor, other agency officials,
and a Government contractor, which the appellant deemed improper;
(2) disclosures that her second-line supervisor was improperly instructing
employees to change the dates on files related to congressional inquiries;
(3) disclosures that she feared a particular coworker might bring a firearm to the
office to commit a mass shooting; (4) disclosures that her supervisors were not
properly handling reports of sexual harassment and assault in the workplace; and
(5) a complaint the appellant filed with the agency’s Office of Inspector General
(OIG). Id. at 2-5. The administrative judge also considered a handful of alleged
retaliatory personnel actions but found that the appellant met her jurisdictional
burden for just one—her probationary termination. Id. at 6-10.

¶5 Although the appellant initially requested a hearing while the appeal
was pending before the administrative judge, she withdrew that request. IAF,
Tab 1 at 2, Tab 76 at 4. After affording the parties the opportunity to make closing
submissions, the administrative judge issued an initial decision, which denied the
appellant’s request for corrective action on the merits. IAF, Tab 86, Initial
Decision (ID). On the merits, the administrative judge found that the appellant did
4

not prove that her disclosures were protected under 5 U.S.C. § 2302(b)(8), but she
did prove that her OIG complaint was protected under 5 U.S.C. § 2302(b)(9)(C).
ID at 13-28. The administrative judge further found that the appellant proved that
this protected activity was a contributing factor in the appellant’s probationary
termination. ID at 28-29. Lastly, the administrative judge found that the agency
successfully rebutted the appellant’s prima facie case of reprisal. ID at 29-41.

¶6 The appellant has filed a petition for review, which exclusively
addresses her probationary termination and does not reassert any other alleged
personnel actions. 1 Petition for Review (PFR) File, Tab 3. She first argues that she
engaged in more protected whistleblowing than found by the administrative judge.
Id. at 19-27. Next, the appellant argues that her whistleblowing was a contributing
factor in her probationary termination and that the agency failed to rebut her prima
facie case of reprisal. Id. at 28-38. Finally, the appellant presents arguments about
the administrative judge’s procedural rulings. Id. at 38-40. The agency has filed a
response to the appellant’s petition for review, and the appellant has replied to that
response. PFR File, Tabs 7, 10.

¶7 After the filing of the petition, response, and reply, the Board sought
amicus briefs on how to interpret and apply 5 U.S.C. § 2302(b)(9)(C). Notice of
Opportunity to File Amicus Briefs, 89 Fed. Reg. 28816-01 (Apr. 19, 2024). In
particular, the Board sought guidance on whether complaints covered under
5 U.S.C. § 2302(b)(9)(A) are precluded from coverage under 5 U.S.C.
§ 2302(b)(9)(C), whether activity that falls within the protections of Title VII may
also be protected by section 2302(b)(9)(C), and whether section 2302(b)(9)(C)
encompasses, among other things, informal discussions with someone from an
agency component that might conduct investigations and formal interviews with

1
Because the appellant has not challenged the administrative judge’s conclusion that her
probationary termination was the sole personnel action within the Board’s jurisdiction,
we have not considered any of the other personnel actions that the appellant originally
alleged.
5

someone who is appointed as a fact finder but who is not otherwise part of a formal
investigatory office or component. Id. Five individuals or entities, including OSC,
filed amicus briefs. PFR File, Tabs 17-21. In addition, the Board issued an order to
the parties to this appeal seeking their arguments about the same matters. PFR File,
Tab 14. Both parties responded and subsequently filed reply briefs. PFR File,
Tabs 22-23, 25-26. We have considered all of the filings on review in making our
decision.

ANALYSIS
¶8 At the merits stage of an IRA appeal, the appellant must prove by
preponderant evidence that she made a protected disclosure under 5 U.S.C.
§ 2302(b)(8) or engaged in an activity protected by 5 U.S.C. § 2302(b)(9)(A)(i),
(B), (C), or (D), and that such disclosure or activity was a contributing factor in an
agency’s personnel action. Turner v. Department of Agriculture, 2023 MSPB 25,
¶ 12. If the appellant meets that burden, the agency is given an opportunity to
prove by clear and convincing evidence that it would have taken the same personnel
action absent the protected disclosure or activity. Id.; see 5 U.S.C.
§ 1221(e)(1)-(2).

¶9 In the analysis that follows, we agree with the administrative judge’s
decision to deny the appellant’s request for corrective action. However, we modify
the initial decision in several respects. Most notably, we address the most recent
version of 5 U.S.C. § 2302(b)(9)(C) and explain how it protects some of the
appellant’s activities. In terms of the three questions identified in the Federal
Register notice and the Board’s order to the parties, we do not reach the first
question because the appellant did not engage in activity protected under 5 U.S.C.
§ 2302(b)(9)(A), and we answer the other two questions in the affirmative.
6

The appellant did not prove that she made disclosures protected by 5 U.S.C.
§ 2302(b)(8).
¶10 The appellant argues that what the administrative judge characterized
as disclosures (1)-(4), described above, were disclosures protected by 5 U.S.C.
§ 2302(b)(8). PFR File, Tab 3 at 19-27. She further argues that disclosures (1),
(2), and (4) were accompanied by activity protected by 5 U.S.C. § 2302(b)(9)(B),
(C), and (D). We will address each argument in turn.

¶11 A disclosure is protected under section 2302(b)(8) if an appellant
reasonably believed that it evidenced any violation of any 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. Turner, 2023 MSPB 25,
¶ 14. The appellant need not prove that the matter disclosed actually established
one of the types of wrongdoing listed under section 2302(b)(8)(A); rather, she must
only show that she possessed a reasonable belief. Id. The test to determine whether
a putative whistleblower had 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. Gabel v. Department of Veterans Affairs,
2023 MSPB 4, ¶ 6. An appellant must identify a specific law, rule, or regulation
that the agency purportedly violated, but she need not identify it by title or number
for her disclosures to be protected when the “statements or circumstances clearly
implicate an identifiable violation of law, rule, or regulation.” Langer v.
Department of the Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001); Ayers v.
Department of the Army, 123 M.S.P.R. 11, ¶ 24 (2015); Chavez v. Department of
Veterans Affairs, 120 M.S.P.R. 285, ¶ 19 (2013). Further, disclosures must be
specific and detailed, not vague, conclusory allegations of wrongdoing based on
unsupported speculation. Gabel, 2023 MSPB 4, ¶ 6; see El v. Department of
7

Commerce, 123 M.S.P.R. 76, ¶ 6 (2015) (stating that vague, conclusory,
unsupported, and pro forma allegations of alleged wrongdoing do not meet the
nonfrivolous pleading standard necessary to establish Board jurisdiction over an
IRA appeal), aff’d, 663 F. App’x 921 (Fed. Cir. 2016); Sobczak v. Environmental
Protection Agency, 64 M.S.P.R. 118, 122 (1994) (finding that disclosures
constituting unsupported speculation do not meet the jurisdictional requirements in
an IRA appeal).

Disclosure 1
¶12 The first of the appellant’s alleged disclosures concerned meetings
between agency officials and a Government contractor, which the appellant
believed were improper. E.g., IAF, Tab 18 at 3. The appellant presented a sworn
statement specifically describing these alleged disclosures. IAF, Tab 7 at 4. She
also provided testimony from a deposition taken during her Board appeal about the
same matter. IAF, Tab 64 at 51-62. According to the appellant, she believed that
the meetings, which she attended, violated a law, rule, or regulation because they
provided the Government contractor with information that was not public, thereby
giving the contractor an unfair advantage over others. IAF, Tab 7 at 4. The
appellant further alleged that she believed that the meetings were improper because
they were not attended by the type of agency official authorized to hold meetings
with potential contractors. Id.

¶13 The administrative judge found that this set of disclosures was not
protected. She reasoned that the disclosures were too vague and conclusory. ID
at 13-14. She further reasoned that the disclosures did not rise to the level of an
abuse of authority, ID at 15, gross mismanagement, ID at 16, or a violation of law,
rule, or regulation, ID at 16-17. Finally, the administrative judge found that the
appellant did not establish that she had a reasonable belief regarding her
disclosures because, inter alia, her duties were unrelated to contracting or
8

procurement and the record contained virtually no information about any
underlying contract. ID at 17.

¶14 The appellant disagrees with the administrative judge. PFR File,
Tab 3 at 22-24. For instance, the appellant argues that her disclosures were
sufficiently specific to show that she reasonably believed that the meetings violated
contracting laws and regulations. Id. at 22. She also argues that the administrative
judge erred by relying in part on the appellant not recalling or presenting evidence
about some potentially pertinent facts, such as ones about procurement training,
which she had cited as giving her reason to believe the meetings were improper.
Id. We disagree.

¶15 The appellant’s first-line supervisor, who directed the meetings in
question and was a recipient of the appellant’s disclosures about the meetings,
submitted a sworn statement. He described the meetings, why they were proper,
and why the appellant’s concerns were mistaken. IAF, Tab 84 at 87. Another
agency official submitted a similar, though less detailed, sworn statement. Id.
at 97. Among other things, these officials indicated that no non-public information
was revealed, there was no solicitation for a contract at the time or in the period that
followed, and the meetings merely constituted permissible market research to
determine whether the contractor—who had an existing contract with the agency
for a different product—had software that could someday replace the agency’s
outdated systems. Id. at 87, 97.

¶16 The head of the agency’s contracts branch also submitted a sworn
statement about the matter. Id. at 107-08. Among other things, he stated that after
the appellant telephoned him with her concerns in November 2019, he met with
her, and it was evident that she was new to the Government and did not understand
the acquisition process. Id. at 108. He further stated that he explained to the
appellant “that a meeting with a contractor aimed at determining what [an] industry
is capable of providing is beneficial to [the agency] and is permissible market
9

research.” Id. Notably, he also contradicted the appellant’s sworn statement to the
extent that the appellant indicated that her disclosure caused him to stop similar
meetings from happening in the future. Compare id., with IAF, Tab 7 at 4.

¶17 As set forth above, the appellant was not required to disclose actual
wrongdoing; she only needed to have a reasonable belief that her disclosures
evidenced one of the kinds of wrongdoing set forth in 5 U.S.C. § 2302(b)(8).
Nevertheless, we agree with the administrative judge that the appellant did not
meet that burden. The record indicates that the agency was merely meeting with an
existing contractor and was not entertaining bids, soliciting a contract, or anything
of the sort. Nevertheless, the appellant seems to have assumed that something far
more nefarious was occurring, vaguely speculating that something was amiss. She
did so after only a few months of Government employment regarding topics that
were far outside her expertise or job duties as a Public Affairs Specialist and
despite an explanation from the head of contracting regarding why what she
observed was not improper. 2 E.g., IAF, Tab 12 at 22-24, Tab 84 at 65, 86-87.
Under these circumstances, the appellant has not proven by preponderant evidence
that she reasonably believed that the situation she disclosed constituted a violation
of law, rule, regulation, or any other type of wrongdoing described in the
whistleblower statute.

2
The appellant argues that, because she lacked training and knowledge in the area of
Government contracting, she would reasonably believe that a wider range of action would
constitute a violation of law, rule, or regulation. PFR File, Tab 3 at 24. The appellant
cites no legal authority binding on the Board to support this position, and we are unaware
of any such authority. The Board has relied on an employee’s experience in a particular
field to find that a disclosure about wrongdoing in that field was reasonable. See, e.g.,
Cooper v. Department of Veterans Affairs, 2023 MSPB 24, ¶ 17 (finding an employee’s
disclosure about a violation of the Federal Acquisition Regulations reasonable in light of
her experience as a senior acquisitions professional). We are not persuaded that, under
the facts of this appeal, the appellant’s lack of knowledge helps her meet her burden of
showing a reasonable belief.
10

Disclosure 2
¶18 The next set of alleged disclosures revealed that the appellant’s
second-line supervisor was instructing employees to backdate certain files relating
to congressional inquiries. E.g., IAF, Tab 18 at 3. The appellant’s sworn statement
from below further described the same, as did her deposition testimony. IAF,
Tab 7 at 5, Tab 64 at 39-42.

¶19 The administrative judge found that the appellant did not prove that
she made protected disclosures about this alleged changing of dates. She reasoned
that the allegations were vague, conclusory, unsupported, and that a reasonable
person in the appellant’s position would not believe that it revealed the type of
wrongdoing protected under the statute. ID at 17-19. The appellant disagrees.
PFR File, Tab 3 at 24-25. Among other things, the appellant suggests that
additional details about the alleged wrongdoing were unimportant or not available
due to the administrative judge’s discovery rulings. Id. We are not persuaded by
the appellant’s arguments.

¶20 The appellant describes making these disclosures within weeks of
joining the agency, when it is likely that she had limited information about the
agency’s processes. IAF, Tab 7 at 5. Additionally, although the appellant
described making this disclosure alongside another coworker who had similar
concerns, IAF, Tab 64 at 40-41, she has not identified any statement from that
individual to corroborate her claims, nor has she challenged any particular ruling
by the administrative judge that may have prevented her from doing so.

¶21 In addition, the alleged wrongdoer, who was the appellant’s
second-level supervisor and one of the alleged recipients of the appellant’s
disclosure, stated in a sworn declaration that he never instructed employees to
improperly change dates, and he did not recall any disclosure about the matter.
IAF, Tab 84 at 76-77. Another official, who was not in the appellant’s chain of
command but who was responsible for the appellant’s training, indicated that the
11

appellant did raise these concerns with him. Id. at 97. However, he explained that
the dates, which were for internal tracking and routing purposes only, were never
used to deceive anyone. Id. The appellant has herself acknowledged that the dates
were for internal routing use only. IAF, Tab 64 at 39.

¶22 After reviewing this evidence, we do not see how the disclosure
implicated one of the types of wrongdoing set forth in the whistleblower protection
statutes. If there was any manipulation of dates, it seems most likely that this was
little more than an internal method of alerting the commanding officer to prioritize
one matter over another. E.g., IAF, Tab 84 at 76, 97. There is nothing suggesting
that letters to Congress or any other outside entity were misdated. The appellant’s
vague speculation that there was something amiss, let alone a violation of law, rule,
or regulation, does not meet her burden to prove by preponderant evidence that she
made a protected disclosure. We therefore agree with the administrative judge’s
conclusion that the appellant did not do so.

Disclosure 3
¶23 The third set of alleged disclosures were June 2019 statements that the
appellant feared a particular coworker might bring a firearm to the office to commit
a mass shooting. E.g., IAF, Tab 18 at 3. Once again, this alleged disclosure is
recounted in more detail in the appellant’s sworn statement and deposition. IAF,
Tab 7 at 5-6, Tab 64 at 46-51.

¶24 The administrative judge found that the appellant did not have a
reasonable belief that she was disclosing a substantial and specific danger to public
health or safety or any other category of wrongdoing under the whistleblower
protection statutes. ID at 20-23. Among other things, she explained that, while the
appellant had described offensive language used by this coworker and violent
stories told by the coworker about his past active-duty military service, the
appellant did not present any persuasive argument or evidence about his propensity
for violence at the workplace. The appellant did not, for example, present
12

argument or evidence that the individual was angry at his colleagues or under
duress. ID at 21-22. To the contrary, the appellant denied ever hearing the
coworker threaten or direct anger at anyone in the office. IAF, Tab 64 at 48. For
these reasons, the administrative judge concluded that the appellant did not have a
reasonable belief that the coworker was likely to bring a firearm to the office and
commit a mass shooting. ID at 21-23.

¶25 On review, the appellant suggests that she disclosed not only this
coworker’s offensive language and violent stories but also that he had brought a
gun to the workplace. PFR File, Tab 3 at 25-27. However, that allegation is
noticeably absent from the sworn statement and deposition testimony referenced
above. IAF, Tab 7 at 5-6, Tab 64 at 46-51. In that evidence, the appellant
discussed why she worried that her coworker might bring a gun to the workplace
without any indication that he had done so. IAF, Tab 64 at 46-51. She even
indicated that she was unsure whether this individual owned a gun, though she
inferred that he did. Id. at 50. The limited evidence that the appellant cites on
review is no different. PFR File, Tab 3 at 25 (referencing IAF, Tab 13 at 24-25, 27,
28, Tab 64 at 30, 46).

¶26 The appellant is correct that an individual need not disclose harm that
already occurred for the disclosure to be protected. PFR File, Tab 3 at 26; see
Wilson v. Department of Veterans Affairs, 2022 MSPB 7, ¶¶ 38-40 (finding an
appellant’s disclosures about potential negative patient outcomes protected);
Chavez, 120 M.S.P.R. 285, ¶¶ 19-20 (same). But the disclosed potential danger
must be substantial and specific. Chambers v. Department of the Interior, 602 F.3d
1370, 1376 (Fed. Cir. 2010); Wilson, 2022 MSPB 7, ¶ 38. In determining whether a
disclosed danger is sufficiently substantial and specific to warrant protection under
the whistleblower statute, the Board must consider: (1) the likelihood of harm
resulting from the danger; (2) when the alleged harm may occur; and (3) the nature
of the harm, i.e., the potential consequences. Chambers, 602 F.3d at 1376; Wilson,
13

2022 MSPB 7, ¶ 38. A disclosed danger that could only result in harm under
speculative or improbable conditions “should not enjoy protection.” Chambers v.
Department of the Interior, 515 F.3d 1362, 1369 (Fed. Cir. 2008). Further, “a harm
likely to occur in the immediate or near future should identify a protected
disclosure much more than a harm likely to manifest only in the distant future.” Id.
Here, the potential consequences of the danger were grave, but the appellant’s own
statements about the matter support a conclusion that the likelihood and imminence
of the danger were exceedingly remote. In fact, the appellant’s concerns appear to
have been little more than unfounded speculation. Therefore, we agree with the
administrative judge. The appellant did not meet her burden of proving that her
disclosures about the coworker and his potential for violence were protected.

Disclosure 4
¶27 The last set of alleged disclosures were ones about sexual harassment
in the workplace and her supervisors’ handling of the same. E.g., IAF, Tab 18 at 4.
This set of disclosures is also recounted in the appellant’s sworn statement and
contemporaneous documents created by the appellant and an agency investigative
report. E.g., IAF, Tab 7 at 6-7, 11, 14-15, 17-19, Tab 13 at 4-21.

¶28 The administrative judge found that the appellant’s claim was vague
and conclusory, ID at 23-25, and that the claim did not meet the reasonable belief
standard, ID at 26-27. The administrative judge explained that the appellant was
aware that management was acting on the underlying complaints, and that the
appellant was simply dissatisfied with management’s explanation that it could not
divulge specific details about how it was acting on the matter. ID at 25-27.

¶29 On review, the appellant reasserts that these disclosures were
protected by section 2302(b)(8). PFR File, Tab 3 at 19-22. We modify the initial
decision to expand on the administrative judge’s analysis under that section in light
of Board precedent.
14

¶30 In Edwards v. Department of Labor, 2022 MSPB 9, aff’d,
No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023), which was issued the
day before the initial decision in this case, the Board considered a situation
somewhat analogous to the situation in this case. The employee in Edwards
disclosed and protested his supervisors’ alleged race discrimination. Id., ¶ 2. He
also filed complaints of systemic race discrimination, including one with the
agency’s Equal Employment Opportunity (EEO) office. Id. The employee then
filed an IRA appeal alleging that the agency engaged in whistleblower reprisal for
these disclosures and activities. Id., ¶¶ 2-3.

¶31 To the extent that the employee in Edwards alleged that his
disclosures were protected by 5 U.S.C. § 2302(b)(8), the Board found otherwise.
The Board held that allegations of discrimination and reprisal for activity that fall
under the protections of Title VII, i.e., matters that can be pursued through the EEO
process and before the Equal Employment Opportunity Commission (EEOC), are
excluded from the protections of 5 U.S.C. § 2302(b)(8). Edwards, 2022 MSPB 9,
¶¶ 10-23. Here, because the appellant’s complaints are protected under Title VII,
they are excluded from the protections of § 2302(b)(8).

The appellant did not prove that she engaged in activity protected by 5 U.S.C.
§ 2302(b)(9)(B).
¶32 In her petition for review, the appellant separately asserts that her
disclosures about sexual harassment (Disclosure 4) also constituted activity
protected by 5 U.S.C. § 2302(b)(9)(B) and (C). PFR File, Tab 3 at 19-22. We
modify the initial decision to address these provisions, which the appellant raised
below but the administrative judge did not address. We start by addressing the
applicability of section 2302(b)(9)(B).

¶33 Under 5 U.S.C. § 2302(b)(9)(B), it is a prohibited personnel practice
to take a personnel action against an employee in reprisal for “testifying for or
otherwise lawfully assisting any individual” in “the exercise of any appeal,
15

complaint, or grievance right granted by any law, rule, or regulation[.]” 5 U.S.C.
§ 2302(b)(9)(A)-(B); Soto v. Department of Veterans Affairs, 2022 MSPB 6, ¶ 6.
This provision does not apply to an individual who has brought a complaint herself.
Rather, this provision applies only to individuals who lawfully assist in someone
else’s appeal, complaint, or grievance. McCray v. Department of the Army,
2023 MSPB 10, ¶¶ 23-25; see Edwards, 2022 MSPB 9, ¶¶ 27-28.

¶34 Evidence that includes emails from the period leading up to the
agency’s investigation, IAF, Tab 14 at 4-8, 15-16, the appointment letters for the
agency’s fact finder, id. at 11-13, and the close of investigation report, IAF, Tab 12
at 60, Tab 13 at 4, all indicates that the source of the investigation was the
appellant’s own complaints. These records do not indicate that the appellant was
assisting some other individual’s appeal, complaint, or grievance. The appellant’s
petition for review and the evidence cited in it similarly suggest that the appellant
complained on behalf of herself and others, not that she assisted someone else’s
complaint. PFR File, Tab 3 at 19-20 (referencing IAF, Tab 83 at 9-10).
Accordingly, section 2302(b)(9)(B) does not apply to the circumstances at hand.

¶35 We recognize that, in her sworn statement made in this IRA appeal, the
appellant vaguely asserts that she “participat[ed] as a witness in support of [a
particular coworker’s] sexual harassment proceeding.” IAF, Tab 7 at 7. But this
coworker mostly brushed off questions about whether he had been the victim of
sexual harassment during the relevant investigation. IAF, Tab 13 at 7-8, 10,
Tab 14 at 15. And we found nothing to suggest that he exercised any appeal,
complaint, or grievance of his own about the matter. Accordingly, we find that the
appellant has not proven that she engaged in the type of lawful assistance protected
by section 2302(b)(9)(B).

The appellant engaged in some activity protected by 5 U.S.C. § 2302(b)(9)(C).
¶36 Section 2302(b)(9)(C) makes it a prohibited personnel practice to take
a personnel action against an employee in reprisal for “cooperating with or
16

disclosing information to the Inspector General (or any other component
responsible for internal investigation or review) of an agency, or the Special
Counsel, in accordance with applicable provisions of law.” As mentioned above,
the administrative judge found that the appellant made disclosures to the agency
OIG, which constituted activity protected under this provision. ID at 27-28. We
agree. However, the appellant also asserted that she engaged in other activity
protected under section 2302(b)(9)(C) as she pursued her allegations of sexual
harassment in the office and management inaction in addressing it (Disclosure 4).
PFR File, Tab 3 at 19-22. We modify the initial decision to address this claim.

¶37 Aside from her activity with the OIG, a September 18, 2019
memorandum from the appellant’s second-level supervisor recounts the appellant’s
reports of sexual harassment in the workplace. IAF, Tab 13 at 81. It also describes
the actions the second-level supervisor took in response, including one -on-one
discussions with the appellant and convening a group “sensing session” facilitated
by the agency’s EEO office. Id. According to this memorandum, the appellant
reached out to one of the sensing session facilitators, after the fact, about her
concerns regarding sexual harassment. Id. This seems to be a reference to an email
from a few days earlier in which the appellant vaguely alluded to “inappropriate
comments or behaviors” and “reported sexual harassment or assault.” Id. at 39.

¶38 A memorandum written by the head of labor and employee relations
dated September 25, 2019, recounts this allegation of “inappropriate comments or
behaviors” and “reported sexual harassment or assault,” as well as the official’s
meeting with the appellant so the appellant could elaborate. 3 IAF, Tab 14 at 4-5.

3
It appears that the alleged victim of the sexual assault whom the appellant repeatedly
referenced did not consider himself to be a victim of sexual assault. Following the
appellant’s reports, agency officials asked the alleged victim about what happened. IAF,
Tab 14 at 15. The alleged victim described turning sideways to squeeze by a coworker, at
which point the coworker backed into him. Id. The alleged victim described this as a
misjudgment on the part of his coworker, but he indicated that he did not consider her
actions to be sexual. Id.
17

According to yet another memorandum, the appellant further pursued the matter a
few days later with a different agency official. This memorandum describes how
the appellant went to the office of a Staff Judge Advocate on September 30, 2019,
and described her concerns about sexual harassment in the workplace and inaction
by her chain of command about the same. Id. at 6. An email from the appellant to
the Staff Judge Advocate about their interaction states that she had first tried to
contact the agency’s EEO office but was unable to do so. Id. at 7. The appellant
asked the Staff Judge Advocate how she could proceed in a situation like this if she
did not want to file a formal EEO complaint. Id. at 6-7.

¶39 On October 4, 2019, seemingly in response to one or more of the
aforementioned interactions that various agency officials had with the appellant,
the Chief of Staff to the Commander of the Naval Sea Systems Command appointed
the Assistant to the Deputy Commander for Cyber Engineering to investigate. IAF,
Tab 13 at 4, Tab 14 at 11-13. This investigator appears to have conducted the
inquiry by himself, interviewing the appellant and others. See, e.g., IAF, Tab 13
at 22-27. During the appellant’s interview, she indicated that she declined to file
an EEO complaint. Id. at 26-27.

¶40 Ultimately, the investigator prepared a “Management Inquiry Report,”
dated December 11, 2019. Id. at 4-21. On February 3, 2020, the Chief of Staff to
the Commander of Naval Sea Systems Command issued a memorandum describing
how he reviewed and agreed with the investigator’s findings of fact. IAF, Tab 12
at 60.

The appellant did not engage in activity within the purview of 5 U.S.C.
§ 2302(b)(9)(A); thus, that provision does not preclude the appellant’s activity
from being protected under 5 U.S.C. § 2302(b)(9)(C).
¶41 Section 2302(b)(9)(A) prohibits retaliation for the “exercise of any
appeal, complaint, or grievance right granted by any law, rule, or regulation—
(i) with regard to remedying a violation of [section 2302(b)(8)]; or (ii) other than
18

with regard to remedying a violation of [section 2302(b)(8)].” 5 U.S.C.
§ 2302(b)(9)(A)(i)-(ii). In McCray, an employee alleged reprisal for having filed
grievances, including one that complained of discrimination against a disabled
coworker. McCray, 2023 MSPB 10, ¶¶ 2-3, 13-14. Guided by the principles of
statutory interpretation and prior precedent, the Board found that the employee’s
grievances fell under section 2302(b)(9)(A) but not section 2302(b)(9)(C).
Id., ¶¶ 27-29.

¶42 Among other things, the Board in McCray explained that this
interpretation was required to read the provisions together and avoid rendering
either inoperative or superfluous. Id., ¶ 27. The Board further explained that a
contrary interpretation would result in section 2302(b)(9)(C) effectively
subsuming all or part of section 2302(b)(9)(A). Id. The McCray decision then
recognized that the Board’s jurisdiction in an IRA appeal, such as this one, is
limited to activity covered by section 2302(b)(9)(A)(i), (B), (C), or (D). Id., ¶ 30.
Because the grievances in McCray did not seek to remedy whistleblower reprisal,
the Board concluded that they fell under section 2302(b)(9)(A)(ii) and thus outside
the Board’s jurisdiction. Id.

¶43 Here, we find that the appellant’s activity does not fall under the
purview of 5 U.S.C. § 2302(b)(9)(A) and its protection for “the exercise of any
appeal, complaint, or grievance right granted by law, rule, or regulation.” The
Board has described section 2302(b)(9)(A) activity as that which constitutes an
initial step toward taking legal action against an employer for the perceived
violation of an employee’s rights. Marcell v. Department of Veterans Affairs,
2022 MSPB 33, ¶ 6; Williams v. Department of Defense, 46 M.S.P.R. 549, 553
(1991). The record does not show that the appellant took that initial step. She
declined to file an EEO complaint or anything comparable and chose instead to
pursue the matters through other channels, which eventually led to the Assistant to
the Deputy Commander for Cyber Engineering conducting an investigation.
19

Accordingly, the rationale of McCray does not apply to the circumstances at hand;
because the appellant did not engage in activity within the purview of
section 2302(b)(9)(A), that provision does not preclude the appellant’s activity
from being protected under section 2302(b)(9)(C). 4

Title VII does not preclude the appellant’s activity from protection
under the investigation cooperation provision of 5 U.S.C.
§ 2302(b)(9)(C).
¶44 Before December 12, 2017, the whistleblower protection statutory
scheme prohibited reprisal for “cooperating with or disclosing information to the
Inspector General of an agency, or the Special Counsel, in accordance with
applicable provisions of law.” 5 U.S.C. § 2302(b)(9)(C) (2016); McCray,
2023 MSPB 10, ¶ 26. Section 1097(c)(1) of the National Defense Authorization
Act for Fiscal Year 2018, Pub. L. No. 115-91, 131 Stat. 1283, 1618 (2017) (2018
NDAA), amended section 2302(b)(9)(C) to provide that, in addition to the
Inspector General of an agency or the Special Counsel, a disclosure to “any other
component responsible for internal investigation or review” also is protected.
McCray, 2023 MSPB 10, ¶ 26; Edwards, 2022 MSPB 9, ¶ 29.

¶45 While analyzing the pre-2018 NDAA language, the Board held that
any disclosure of information to an OIG or OSC was protected, regardless of its
content, as long as the disclosure was made in accordance with applicable
provisions of law. Fisher v. Department of the Interior, 2023 MSPB 11, ¶ 8. We
agree with the position of OSC and several of the amici and find the same broad

4
In its amicus brief, OSC requests that the Board reconsider and overrule McCray. PFR
File, Tab 18 at 3, 14-17. OSC argues that 5 U.S.C. §§ 2302(b)(9)(A) and 2302(b)(9)(C)
should not be read to limit or preclude one another and that the McCray decision erred in
finding otherwise. PFR File, Tab 18 at 3, 14-17. Put another way, OSC argues that
activity protected under section 2302(b)(9)(A) can also be protected under
section 2302(b)(9)(C) and, when that occurs, an employee should be afforded the
protections of the latter for purposes of IRA appeal rights with the Board. PFR File,
Tab 18 at 3, 14-17. Because we find that the appellant’s activity is not covered under
section 2302(b)(9)(A), we decline to consider the matter further.
20

protection to be applicable to the amended version of the statute, which applies to
this appeal. As of December 12, 2017, any disclosure of information to an OIG,
OSC, or any another other component responsible for investigation or review at an
agency is protected under 5 U.S.C. § 2302(b)(9)(C), regardless of its content, as
long as the disclosure is made in accordance with applicable provisions of law.

¶46 Although the appellant’s activity involved statements about sexual
harassment, which implicates the protections of Title VII, this does not preclude
coverage under 5 U.S.C. § 2302(b)(9)(C). The language of section 2302(b)(9)(C),
which covers cooperating with or disclosing “information” to certain entities, is
devoid of content-based limitations. This is notably different from the
anti-retaliation provision for protected disclosures, which contains explicit
content-based limitations and therefore has been interpreted as excluding
disclosures that fall under Title VII. 5 U.S.C. § 2302(b)(8); see, e.g., Spruill v.
Merit Systems Protection Board, 978 F.2d 679, 690-92 (Fed. Cir. 1992); Williams,
46 M.S.P.R. at 554. Moreover, although the applicable legislative history of
5 U.S.C. § 2302(b)(8), as discussed by the Board in Williams, 46 M.S.P.R.
at 553-54, supports a finding that section 2302(b)(1) and (b)(8) are mutually
exclusive, we have found no comparable legislative history that would limit
5 U.S.C. § 2302(b)(9)(C) in this way.

The appellant’s statements to the agency investigator fall within the
coverage of 5 U.S.C. § 2302(b)(9)(C).
¶47 As described previously, the appellant engaged in a series of
conversations and activities that we must consider. She participated in a sensing
session facilitated by the agency’s EEO office, and she separately spoke with the
facilitator of that sensing session. IAF, Tab 13 at 81. The appellant also raised her
concerns with a Staff Judge Advocate. IAF, Tab 14 at 6. After this, as discussed
above, an agency official was designated to conduct an investigation. IAF, Tab 13
21

at 4, Tab 14 at 11-13. The investigator interviewed the appellant and others before
issuing a final investigatory report. IAF, Tab 13 at 4-21.

¶48 In pertinent part, section 2302 defines a “disclosure” as “a formal or
informal communication or transmission.” 5 U.S.C. § 2302(a)(2)(D). Moreover,
section 2302(b)(9)(C) does not distinguish between formal or informal
cooperation. Thus, we find that the formality or lack thereof regarding the activity
described above is of no consequence when analyzing whether it is protected under
section 2302(b)(9)(C). Rather, the key question is whether an appellant’s activity
was directed to a covered investigatory entity.

¶49 As mentioned previously, section 2302(b)(9)(C) prohibits reprisal for
“cooperating with or disclosing information to the Inspector General (or any other
component responsible for internal investigation or review) of an agency, or the
Special Counsel, in accordance with applicable provisions of law.” Thus,
regardless of the name of the agency entity, if its function is to conduct internal
investigations or review, section 2302(b)(9)(C) applies. The question then
becomes what constitutes an agency component responsible for internal
investigation or review. Section 2302(b)(8) does not supply such a definition.
However, under the principle of statutory construction known as ejusdem generis
(“of the same kind”), when a general word or phrase follows an enumeration of
specific things, the general word or phrase is held to refer to things of the same kind
as those specified. See, e.g., King v. Department of the Air Force, 122 M.S.P.R.
531, ¶ 7 n.4 (2015). This principle recognizes that the purpose of describing a class
by examples and a general catchall phrase is to indicate how extensively a
provision is intended to be applied. Kinney v. Department of Agriculture,
82 M.S.P.R. 338, ¶ 5 (1999). Therefore, we find that the “other component
responsible for internal investigation or review” should be an entity with attributes
that are generally “of the same kind” as an Inspector General.
22

¶50 At the time of the amendment to 5 U.S.C. § 2302(b)(9)(C) that added
the “any other component responsible for internal investigation or review”
language, the Inspector General Act of 1978, as amended, Pub. L. No. 95-452,
92 Stat. 1101, had established Offices of Inspectors General in designated
executive-branch departments and agencies as “independent and objective units”
whose responsibilities included, among other things, conducting and supervising
audits and investigations of agency programs and operations and improving agency
programs and operations by promoting economy, efficiency, and effectiveness and
by preventing and detecting fraud and abuse. 5 5 U.S.C. App. III, § 2. The Act
authorized an Inspector General to, among other things, obtain relevant agency
records, conduct investigations, issue reports, and obtain information from
witnesses. Id., § 6(a). An Inspector General is therefore independent from agency
line managers, and there is a degree of formality to an investigation or review that
is designed to, for example, engage in fact-finding. We find that agency
components as described in section 2302(b)(9)(C) should have similar attributes
and functions, although such attributes may vary from agency to agency. In
general, such components will have a degree of independence and objectivity, as
well as the authority to investigate or review by taking testimony, collecting
evidence, and making findings and recommendations. We acknowledge that some
attributes of an Inspector General under the Act appear to be unique to that
position, including being appointed by the President with the advice and consent of
the Senate, id., § 3(a); being under the general supervision of the head of an agency
or the officer next in rank below such head, id.; reporting to Congress on Inspector
General activities and reporting suspected violations of criminal law to the
Attorney General, id., §§ 5, 4(d); having unfettered access to agency records, id.,
§ 6(a)(1); having the authority to issue subpoenas, enforceable in Federal court, to

5
The Inspector General Act of 1978, which was set out in the former Appendix to Title 5,
was repealed and restated by Pub. L. No. 117-286, 136 Stat. 4206, 4361 (Dec. 27, 2022),
at 5 U.S.C. § 401 et seq.
23

obtain information during an investigation, id., § 6(a)(4); and being subject to
removal only by the President, id., § 3(b). Given the statutory reference to
components “other” than Inspectors General, however, we find that Congress did
not intend for such components to have all of these same attributes.

¶51 Applying the principles set forth above, we find that the statutory
language’s reference to “any” component is broad enough to encompass not just
permanent agency components but also ad hoc internal investigations or reviews
conducted pursuant to an established agency procedure with authorities and
purposes similar to those described above, even if, as in this case, the investigation
is performed as a collateral duty by an agency employee.

¶52 Here, the Chief of Staff to the Naval Sea Systems Commander
appointed the Assistant to the Deputy Commander for Cyber Engineering to
conduct an investigation of specific allegations raised by the appellant involving
the agency’s Office of Corporate Communications. IAF, Tab 14 at 11-13, Tab 75
at 4. This investigator, therefore, appears to have occupied a position with a degree
of independence and objectivity from the Office of Corporate Communications.
The initial appointment letter for this “fact finding inquiry” instructed the
investigator to gather information and provide a written report surrounding
allegations raised by the appellant, guided by identified Department of Defense and
agency policies relating to violence prevention and unlawful harassment. IAF,
Tab 14 at 12. It also authorized this individual to interview witnesses, draft a
summary of their statements for their signature, examine and collect copies of any
necessary documentary records, and report findings of fact, including any
credibility determinations, in a written report. Id. at 12-13. All civilian and
military personnel were directed to cooperate with the inquiry unless the
investigator discovered facts constituting potential criminal violations. Id. at 13.
Further, the Assistant to the Deputy Commander for Cyber Engineering was
directed to consult with advisors from the agency’s Labor and Employee Relations
24

Office and Office of Counsel. Id. The investigator, among other things, submitted
a Management Inquiry Report that included signed declarations from numerous
witnesses as well as documents provided by witnesses. IAF, Tab 13 at 4-83.
Under the circumstances of this case, we find that the appellant’s statements to the
Assistant to the Deputy Command for Cyber Engineering were protected under
section 2302(b)(9)(C). 6 In sum, we find that the appellant engaged in activity
protected under 5 U.S.C. § 2302(b)(9)(C) when she complained to the OIG and
when she cooperated with and disclosed information to the Assistant to the Deputy
Commander for Cyber Engineering.

The appellant did not prove that she engaged in activity protected by 5 U.S.C.
§ 2302(b)(9)(D), the right to disobey provision.
¶53 The appellant separately argues that her set of disclosures about
meetings with a contractor (Disclosure 1) and her set of disclosures about
backdating files (Disclosure 2) also constituted activity protected under 5 U.S.C.
§ 2302(b)(9)(D), and that the administrative judge failed to address these claims.
PFR File, Tab 3 at 24-25. Because the appellant is correct that the administrative

6
Although the appellant alleges in her petition for review that she engaged in activity
protected by section 2302(b)(9)(C), she does not specify that this activity included her
participation in an EEO sensing session or discussions with a facilitator of that session.
PFR File, Tab 3 at 21, Tab 10 at 9-10. The same is true of her responses to the Board’s
request for additional argument about section 2302(b)(9)(C). PFR File, Tab 22 at 9-10.
Thus, we do not address whether such activities are covered under section 2302(b)(9)(C).
In any event, it appears that the sensing session was initiated by the Director of the Office
of Corporate Communications to, in part, “provide a way for people to talk.” IAF, Tab 13
at 81-82. It was conducted by EEO office personnel as “facilitators only” to provide the
workforce with an opportunity to participate, on a voluntary basis, in a session to voice
their concerns and identify possible recommendations or solutions for office
improvement in any area they wished to address in an anonymous format. Id. at 85.
Based on this limited information, even if the appellant had intended to raise such a claim,
she has not proven that any cooperation or disclosure of information during the sensing
session or to a facilitator would meet the requirements of section 2302(b)(9)(C) as
outlined above. Similarly, considering the criteria set forth above, she has not met her
burden of proving that, under the facts of this case, the Staff Judge Advocate or any other
individual, other than the Deputy Commander for Cyber Engineering who conducted the
official investigation, constituted a “component” responsible for internal investigation or
review.
25

judge did not address the claims, we do so now and modify the initial decision
accordingly. The statutory provision at issue, section 2302(b)(9)(D), prohibits
retaliation for “refusing to obey an order that would require the individual to
violate a law, rule, or regulation.” 5 U.S.C. § 2302(b)(9)(D); Fisher, 2023 MSPB
11, ¶¶ 11-12.

¶54 Regarding the activity associated with Disclosure 1, the appellant has
not identified below or on review any particular evidence that she was given an
order about the meetings. In her sworn statement, the appellant asserts that her
supervisors “correctly perceived that [she] would refuse to violate federal
acquisition laws and regulations.” IAF, Tab 7 at 5. She also asserts that she
“disclosed to [several officials] that [she] was not willing to have any such
meetings” with the contractor. Id. But the appellant does not recount any order
that she do so, followed by a refusal to obey such an order. The appellant’s
deposition testimony, which provides additional context, states only that “it was
implied” that she would be tasked with hosting more of these meetings that she
thought were problematic. IAF, Tab 64 at 59-60. Yet the appellant later stated that
she was told she would not have to attend future meetings if she did not want to do
so. Id. at 61. For these reasons, the appellant has not proven that she engaged in
activity protected by section 2302(b)(9)(D) regarding these meetings.

¶55 Turning to the activity associated with Disclosure 2, the appellant
suggests that she refused to obey an instruction about the backdating of internal
agency files. IAF, Tab 7 at 5, Tab 64 at 39-42. The appellant has not, however,
directed us to evidence showing that she disobeyed an order. Thus, we again find
that the appellant has not proven that she engaged in activity protected by
section 2302(b)(9)(D). 7

7
In light of our finding that the appellant did not disobey an order, we do not reach the
issue of whether the appellant showed that an order would have required her to actually
violate a law, rule, or regulation. See 5 U.S.C. § 2302(b)(9)(D).
26

The appellant proved the contributing factor element of her burden.
¶56 Another element of an appellant’s burden of proof in an IRA appeal,
such as this one, is proof that her protected disclosure or activity was a contributing
factor in the contested personnel action. Turner, 2023 MSPB 25, ¶ 12. One way to
meet this burden is through the knowledge/timing test, which allows an appellant to
demonstrate that the protected activity was a contributing factor in a personnel
action through circumstantial evidence, such as evidence that the official taking the
personnel action knew of the disclosure or activity and that the personnel action
occurred within a period of time such that a reasonable person could conclude that
it was a contributing factor in the personnel action. Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶ 63.

¶57 The administrative judge found that the appellant met her burden of
proving the contributing factor element of her case for her protected OIG activity
because the agency removed her just days after learning of her OIG complaint. ID
at 28-29. We agree. We modify the initial decision to also find that the appellant
established the contributing factor element in connection with the other activity we
found protected under section 2302(b)(9)(C). Among other things, the individual
who signed the appellant’s termination letter in January 2020 was among those
interviewed by the agency investigator about the appellant’s allegations just
1 month earlier. IAF, Tab 12 at 25-32, Tab 13 at 4, 98-99; see 5 U.S.C.
§ 1221(e)(1).

The agency proved that it would have taken the same probationary termination in
the absence of the appellant’s protected whistleblowing.
¶58 Once an appellant presents a prima facie case of whistleblower
reprisal by proving that she made protected disclosures or engaged in protected
activity that was a contributing factor in a covered personnel action, the burden
shifts to the agency. Soto, 2022 MSPB 6, ¶ 6. In determining whether an agency
has met its burden of proving that it would have taken the same personnel action in
27

the absence of the protected activity, the Board will consider all of 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 who were involved in the decision; and (3) any evidence
that the agency takes similar actions against employees who do not engage in such
protected activity, but who are otherwise similarly situated. Id., ¶ 11 (citing Carr
v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999)). These
are commonly called the Carr factors. In making its determination, the Board must
consider all of the pertinent evidence in the record and must not exclude or ignore
countervailing evidence by only looking at the evidence that supports the agency’s
position. Soto, 2022 MSPB 6, ¶ 11; see Whitmore v. Department of Labor,
680 F.3d 1353, 1368 (Fed. Cir. 2012) (“Evidence only clearly and convincingly
supports a conclusion when it does so in the aggregate considering all the pertinent
evidence in the record, and despite the evidence that fairly detracts from that
conclusion”). The factors are not viewed as discrete elements, each of which the
agency must prove by clear and convincing evidence; rather, the Board weighs
these factors together to determine whether the evidence is clear and convincing as
a whole. Soto, 2022 MSPB 6, ¶ 13.

¶59 After recognizing these standards, the administrative judge found that
the agency met its burden. ID at 29-41. In short, the administrative judge found
that the agency had strong evidence in support of the probationary termination, ID
at 31-40, and that the responsible officials had no real motive to retaliate, ID at 41.
The administrative judge made no findings about comparator employees, i.e., Carr
factor 3.

¶60 On review, the appellant disagrees with the administrative judge’s
analysis. PFR File, Tab 3 at 28-38. For example, she suggests that her chain of
command responded to Disclosures 1 and 2 by accusing her of not being a “team
player,” and she argues that this reflects retaliatory animus. Id. at 28 (referencing
28

IAF, Tab 7 at 5). In addition, the appellant asserts that the agency’s justification
for her probationary termination was especially weak. Id. at 29, 32. The appellant
also points to a passage of the termination letter stating that the appellant
“instigated and escalated interactions,” and she argues that this and other similar
rationales were, in effect, the agency citing her whistleblowing as a basis for the
probationary termination. Id. at 29-30, 33 (referencing IAF, Tab 12 at 27-28). The
appellant further asserts that there were just days between her OIG complaint and
her probationary termination, id. at 30-31, the administrative judge failed to
recognize that her first- and second-level supervisors had a motive to retaliate for
the complaint, id. at 34-36, and the initial decision is silent as to any comparator
evidence regarding how the agency treats similarly situated nonwhistleblowers, id.
at 37-38. As discussed below, we modify the administrative judge’s Carr factor
analysis but reach the same conclusion that the agency proved by clear and
convincing evidence that it would have taken the same probationary termination
absent the appellant’s protected activity.

Carr Factor 1
¶61 Regarding the strength of the evidence in support of the appellant’s
probationary termination, we agree with the administrative judge that this evidence
is strong. ID at 31-40. As further detailed in the initial decision, there is ample
evidence of the appellant’s inability to get along with either coworkers or
supervisors during her short time with the agency.

¶62 To illustrate with a few examples, in a written declaration that the
appellant’s second-level supervisor apparently made following a November 2019
interview, he characterized the appellant as “inflexible,” “rigid,” and unwilling to
learn how the agency “does business.” IAF, Tab 13 at 76. He further recounted
how the appellant would routinely cut people off to interject her unsolicited
opinions or engage in other such conduct. Id. at 76-78. The second-level
supervisor also drafted a memorandum for the record in December 2019 describing
29

a meeting in which the appellant aired numerous and seemingly petty grievances
about interactions with colleagues. IAF, Tab 12 at 34. He also described how the
appellant “borderline badger[ed]” him about office supplies at this meeting, how
she was “condescending and abrupt,” how she was “borderline hostile,” and how
this was an “on-going pattern.” Id. at 34-35.

¶63 Subsequently, the appellant’s management chain drafted additional
memoranda describing the appellant’s conduct in more detail, including her
coworkers’ complaints about that conduct. E.g., id. at 37-38, 75-77. Among other
things, this included the appellant engaging in hostile and unprofessional conduct,
repeatedly interrupting superiors and colleagues, intentionally ignoring members
of her team, and stating that she would no longer meet with colleagues unless a
member of Human Resources was also present. Id. at 75-77. Much of this is
corroborated by other evidence, such as emails from the appellant’s coworkers. Id.
at 86-87. One of those coworkers described how she and the appellant had a
friendly relationship in and out of the office, but that the relationship abruptly
changed when the appellant became angry about the coworker using a shared
printer, thereby delaying the appellant’s use of the same. Id. According to this
coworker, the appellant had begun to wage a “Cold War” in the office, “creating a
toxic environment,” causing this coworker to dread her workdays. Id. at 86.

¶64 Accordingly, the agency had strong reasons for terminating the
appellant during her probationary period, a period during which agencies are
encouraged “as fully as possible to determine” the individual’s fitness for Federal
employment. 5 C.F.R. § 315.803(a).

Carr Factor 2
¶65 Turning to the motive to retaliate, the administrative judge reasoned
that the appellant’s first- and second-level supervisors, i.e., the ones most
responsible for the appellant’s probationary termination, had no motive to retaliate
for her protected whistleblowing activity with the OIG, as demonstrated by them
30

facilitating that activity. ID at 41. In making this finding, the administrative judge
provided almost no analysis. Accordingly, we modify the administrative judge’s
analysis and also consider the additional activity that we found to be both protected
and a contributing factor in the appellant’s probationary termination.

¶66 When the officials responsible for a personnel action are the subject of
the appellant’s protected activity, those officials generally have a strong motive to
retaliate. Young v. Department of Homeland Security, 2024 MSPB 18, ¶ 30; Elder
v. Department of the Air Force, 124 M.S.P.R. 12, ¶ 45 (2016) (finding a strong
motive to retaliate when the deciding official was the subject of a prior settlement
agreement involving the appellant). The precise strength of that motive will
depend on an examination of all of the record evidence. See Whitmore, 680 F.3d
at 1368; Soto, 2022 MSPB 6, ¶ 11. Furthermore, officials responsible for the
overall performance of the agency may have a motive to retaliate to the extent that
criticism of the institution may reflect on them in their capacity as managers and
employees. Whitmore, 680 F.3d at 1370; Wilson, 2022 MSPB 7, ¶ 65.

¶67 That the appellant’s protected activity directly implicated the agency
officials most responsible for the appellant’s termination suggests a strong motive
to retaliate. On the other hand, while not precluding a motive to retaliate, we must
also consider that they facilitated some of the appellant’s protected activity, that
the allegations of wrongdoing were seemingly without merit, and that the officials
had suffered no adverse consequences at the time they took the personnel action
31

because of the appellant’s activity. 8 Considering all of the evidence, we find that
there was some motive to retaliate but that it was not very strong.

Carr Factor 3
¶68 Turning to the last Carr factor, any evidence that the agency takes
similar actions against employees who do not engage in protected activity but who
are otherwise similarly situated, the administrative judge made no findings. Thus,
we address that matter now.

¶69 During the proceedings below, the agency presented argument and
evidence about another individual who was not a whistleblower but who was
terminated during the individual’s probationary period around the same time as the
appellant’s probationary termination. IAF, Tab 66 at 50, 53-60, Tab 84 at 33,
110-11. However, that individual was terminated for a mix of poor performance
and conduct. IAF, Tab 66 at 53-57. The Board has held that the requirement that
comparator employees for Carr factor purposes be “similarly situated” does not
require “virtual identity;” rather, “[d]ifferences in kinds and degrees of conduct
between otherwise similarly situated persons within an agency can and should be
accounted for.” Whitmore, 680 F.3d at 1373; Chavez, 120 M.S.P.R. 285, ¶ 34.
Nevertheless, we cannot conclude that the comparator identified by the agency is
similarly situated for these purposes given the information provided about the
potential comparator.

8
In her petition for review, the appellant notes that the investigator’s final report
criticized the appellant’s supervisors for not addressing the appellant’s sexual harassment
allegations in a more timely manner. PFR File, Tab 3 at 36; see IAF, Tab 13 at 21. This
argument is not particularly persuasive regarding the issues presented by this appeal
because the report was issued long after the appellant’s probationary termination. We
also recognize that a retaliatory motive could stem from an official’s frustration about an
employee’s continued misplaced allegations of wrongdoing rather than a genuine concern
that the whistleblowing revealed wrongdoing by the official. Nevertheless, considering
all of the evidence in this matter, any motive to retaliate was not particularly strong.
32

¶70 On review, the appellant attempts to compare herself to a different
employee whom she describes as being subject to lesser discipline for more
egregious conduct. PFR File, Tab 3 at 37. But we have no indication that this
individual was a probationary employee, like the appellant, and the appellant has
not directed us to any argument or evidence about how this individual might
otherwise be similarly situated. Thus, this individual is not a valid comparator.
Accordingly, neither the agency nor the appellant has produced evidence of how
the agency treats similarly situated employees who are not whistleblowers.

¶71 The agency does not have an affirmative burden to produce evidence
concerning each and every Carr factor, and “the absence of any evidence relating to
Carr factor three can effectively remove that factor from the analysis.” Whitmore,
680 F.3d at 1374-75; Soto, 2022 MSPB 6, ¶ 18. However, the failure to produce
such evidence, if it exists, “may be at the agency’s peril,” could “cut slightly
against” the agency, and “may well cause the agency to fail to prove its case
overall.” Miller v. Department of Justice, 842 F.3d 1252, 1262 (Fed. Cir. 2016);
Whitmore, 680 F.3d at 1374-75; Soto, 2022 MSPB 6, ¶ 18. If either or both of the
first two Carr factors do not support a finding that the agency would have taken the
same personnel action absent the disclosure or protected activity, the agency’s
failure to present evidence of the third Carr factor may prevent it from carrying its
overall burden. Smith v. Department of the Army, 2022 MSPB 4, ¶¶ 26-30; see also
Miller, 842 F.3d 1252, 1259-63.

¶72 Because it is the agency’s burden to prove by clear and convincing
evidence that it would have taken the same personnel action in the absence of the
appellant’s protected activity, the third Carr factor cannot weigh in the agency’s
favor when the agency fails to introduce relevant comparator evidence. Smith v.
General Services Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v.
Environmental Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018); Soto,
2022 MSPB 6, ¶ 18. Here, the agency has introduced some comparator evidence,
33

but its evidence is insufficient to show that the proffered comparator is in fact
appropriate. Under the particular circumstances of this case, we find that the
agency’s failure to introduce complete, fully explained comparator evidence
effectively removes this factor from the analysis.

¶73 In conclusion, the agency presented strong evidence in support of the
appellant’s probationary termination. But agency officials involved in that
probationary termination had some motive to retaliate for the appellant’s protected
whistleblowing activity, and the record contains no persuasive evidence about
similarly situated nonwhistleblowers. Considering the evidence as a whole, we
find that the agency has proven by clear and convincing evidence that it would have
taken the same probationary termination in the absence of the appellant’s protected
activity. See 5 U.S.C. § 1221(e)(2). The agency has, therefore, met its burden of
rebutting the appellant’s prima facie case of reprisal.

The appellant has not shown that the administrative judge’s procedural rulings
were an abuse of discretion.
¶74 The appellant asserts that the administrative judge made improper
discovery rulings. PFR File, Tab 3 at 38-39. She also contends that the
administrative judge improperly disallowed some of her proposed witnesses and
that this prompted the appellant to withdraw her hearing request. Id. at 39-40.
These arguments are unavailing.

¶75 Regarding discovery, the appellant alleges that the agency failed to
(1) adequately initiate the discovery process by the designated deadline;
(2) provide pertinent information in a deposition notice; (3) timely file a motion to
compel; and (4) include a statement of good faith with that motion to compel. Id.
at 38. The agency disagrees on all counts while providing a more thorough
accounting of the circumstances. PFR File, Tab 7 at 5-8.

¶76 The parties presented extensive arguments and evidence about these
issues below. IAF, Tabs 28-29. At its heart, the dispute stems from the agency
34

serving the appellant with a deposition notice by the designated deadline for
initiating discovery, wherein the date of the planned deposition was listed as “TBD
(1 Full Day May 13-27, 2021).” IAF, Tab 28 at 41. According to the agency, it
provided a date range to accommodate scheduling conflicts, including the
appellant’s planned surgery, in anticipation that the parties would later work
together to decide which day worked best. PFR File, Tab 7 at 6; IAF, Tab 28
at 4-5. According to the appellant, the absence of a definitive date rendered the
deposition notice invalid, regardless of the agency’s reasons. PFR File, Tab 3
at 38; IAF, Tab 28 at 39, Tab 29 at 5. This dispute led to the appellant refusing to
participate in a deposition, the agency’s motion to compel, the parties’ arguments
about the same, and the administrative judge compelling the appellant’s deposition.
IAF, Tabs 28-29, 33.

¶77 An administrative judge has broad discretion in ruling on discovery
matters, and the Board will not find reversible error in such rulings, absent an abuse
of discretion. Dieter v. Department of Veterans Affairs, 2022 MSPB 32, ¶ 25.
Under the circumstances described, we do not find that the administrative judge
abused that broad discretion.

¶78 The appellant separately asserts that the administrative judge denied
her motion to compel certain information and prohibited her from deposing certain
officials, all of which hindered her case. PFR File, Tab 3 at 38-39. These issues
were also thoroughly developed through competing pleadings and the
administrative judge’s rulings. E.g., IAF, Tabs 30, 32, 34, 46-51. For example, the
administrative judge denied the appellant’s request to take the deposition of several
agency employees because the appellant waited until several months after the
deadline for initial discovery requests and just 2 weeks before the prehearing
submissions were due to issue her notice of those depositions, without any
explanation for the delay, and because the requested deposition testimony appeared
irrelevant. IAF, Tab 51 at 1-2. The appellant’s cursory assertion on review that the
35

administrative judge’s discovery rulings hindered her case do not persuade us that
this or other similar rulings constituted an abuse of discretion.

¶79 Turning to the issue of the three disallowed witnesses, the appellant
summarily asserts that she “made an adequate showing of the relevance each
witness would have in this case.” PFR File, Tab 3 at 39-40 (referencing IAF,
Tab 54 at 22-24). The administrative judge, however, determined that the
appellant’s proffer of expected testimony for these individuals was speculative,
redundant, and not relevant. IAF, Tab 73 at 5. The appellant subsequently
withdrew her hearing request without any mention of the administrative judge’s
rulings about witnesses. IAF, Tab 76.

¶80 An administrative judge has wide discretion to control the
proceedings, including the authority to exclude testimony that she believes would
be irrelevant, immaterial, or unduly repetitious. Vaughn v. Department of the
Treasury, 119 M.S.P.R. 605, ¶ 12 (2013). To obtain reversal of an initial decision
on the ground that the administrative judge abused her discretion in excluding
evidence, the petitioning party must show on review that relevant evidence, which
could have affected the outcome, was disallowed. Id. Here, the appellant’s general
assertion that she adequately identified the relevance of her proposed witnesses
below does not meet this burden and does not persuade us that the administrative
judge erred.

ORDER
¶81 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
36

NOTICE OF APPEAL RIGHTS 9
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:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

9
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.
37

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 .
38

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
39

of competent jurisdiction. 10 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
following address:
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.

10
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of MSPB
decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals for the
Federal Circuit or any other circuit court of appeals of competent jurisdiction. The All
Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
40

Contact information for the courts of appeals can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Gina K. Grippando
Clerk of the Board
Washington, D.C.
CERTIFICATE OF SERVICE

I certify that the attached Document(s) was (were) sent as indicated this day
to each of the following:

Appellant

Electronic Service Mary Reese
Served on email address registered with MSPB

Appellant Representative

Electronic Service Richard Renner
Served on email address registered with MSPB

Agency Representative

Electronic Service Michael Causey
Served on email address registered with MSPB

Agency Representative

Electronic Service Kristin Roberts
Served on email address registered with MSPB

Amicus Curiae

U.S. Mail Martin Akerman
2001 North Adams Street
Unit 440
Arlington, Virginia 22201
Amicus Curiae

U.S. Mail Debra D'Agostino
Federal Practice Group, L.L.P.
801 17th Street, NW, Suite 250
Washington, District of Columbia 20006

Amicus Curiae

U.S. Mail Gregory Giaccio
U.S. Office of Special Counsel
1730 M Street, NW, Suite 300
Washington, District of Columbia 20036

Amicus Curiae

U.S. Mail Andres Grajales
American Federal of Government Employees, AFL-CIO
80 F Street, NW
Washington, District of Columbia 20001

Amicus Curiae

U.S. Mail Pere Jarboe
2008 Peggy Stewart Way
Unit 302
Annapolis, Maryland 21401

Amicus Curiae

U.S. Mail Rosa Koppel
Law Offices of Larry J. Stein, LLC
P.O. Box 752
McLean, Virginia 22101-0752

Amicus Curiae

U.S. Mail Julie Yeagle
U.S. Office of Special Counsel
1730 M Street, NW, Suite 300
Washington, District of Columbia 20036
01/31/2025
(Date) Dinh Chung
Case Management Specialist

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10792613. Public record. Not legal advice.