Opinion

Maria DeAngelo v. Department of the Army

Court: Merit Systems Protection Board
Filed: Nov 19, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 37.0%

finding that there was a sufficient nexus between an employee’s conduct and the efficiency of the service when the conduct occurred, in part, at work

How later courts described this case

finding that there was a sufficient nexus between an employee’s conduct and the efficiency of the service when the conduct occurred, in part, at work

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MARIA DEANGELO, DOCKET NUMBER

Appellant, PH-0752-23-0311-I-1

DEPARTMENT OF THE ARMY, DATE: November 19, 2025

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Maria DeAngelo , Pittston Township, Pennsylvania, pro se.

Shanna Walker Williamson , Esquire, and David Tomaszewski , Tobyhanna,

Pennsylvania, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

sustained her removal based on charges of conduct unbecoming a Federal employee

and insubordination. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

A nonprecedential order is one that the Board has determined does not add significantly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 Parties may cite nonprecedential orders, but such orders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

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). After fully considering the

filings in this appeal, we conclude that the petitioner has not established any basis

under section 1201.115 for granting the petition for review. Therefore, we DENY

the petition for review. Except as expressly MODIFIED to find that the appellant

made a prima facie case of whistleblower reprisal and to SUPPLEMENT the

administrative judge’s discussion of the agency’s burden to show by clear and

convincing evidence that it would have removed the appellant even in the absence

of her protected disclosure, we AFFIRM the initial decision.

BACKGROUND

The appellant was employed as a program support assistant, GS-06, with the

agency’s Tobyhanna Army Depot in Tobyhanna, Pennsylvania. Initial Appeal File

(IAF), Tab 4 at 24. Effective June 30, 2023, the agency removed her based on

charges of conduct unbecoming a Federal employee (three specifications) and

insubordination (one specification). Id. at 25-28, 56-62. The alleged misconduct

underlying the conduct unbecoming charge involves the appellant’s refusal to take

on assigned duties and to follow orders, her use of disrespectful, erratic, and

verbally abusive language with her supervisor and coworkers, and her failure to

cooperate or “take any guidance” from the Directorate Secretary. Id. at 56-59. The

alleged misconduct underlying the insubordination charge involves the appellant’s

failure to provide information to a coworker despite her supervisor’s instruction to

do so. Id. at 59.

The appellant challenged her removal on appeal to the Board and raised an

affirmative defense of whistleblower reprisal. IAF, Tab 1 at 4-5, Tab 8 at 4. 2

Specifically, she claimed that she disclosed that common access cards (CAC) were

being issued to Government contractors without proper vetting and that the agency

removed her in reprisal for her disclosure. 3 IAF, Tab 1 at 5, Tab 8 at 4.

After holding the appellant’s requested hearing, the administrative judge

issued an initial decision finding that the agency proved all of the specifications,

and thus, all of the charges by preponderant evidence. IAF, Tab 14, Initial

Decision (ID) at 6-8. He also found that the penalty of removal promotes the

efficiency of the service and is reasonable. ID at 13-15. Regarding the appellant’s

affirmative defense of whistleblower reprisal, the administrative judge found that,

although the appellant proved that she made a protected disclosure, she failed to

prove that it was a contributing factor in the agency’s decision to remove her

because she did not prove that either the proposing or deciding official was aware

The appellant stated below that she filed an equal employment opportunity complaint

against her supervisor. IAF, Tab 8 at 4-9. The administrative judge did not construe the

appellant’s assertions as an affirmative defense of reprisal in the summary of the

prehearing conference. IAF, Tab 9. Nor did the appellant object to the omission, despite

being given an opportunity to do so. Id. at 3. The appellant did not raise this as an

affirmative defense in her petition for review. Petition for Review File, Tab 1.

Accordingly, we do not address it further here. See Thurman v. U.S. Postal Service,

2022 MSPB 21, ¶ 18 (setting forth a nonexhaustive list of factors for the Board to

consider when determining whether an appellant will be deemed to have waived or

abandoned an affirmative defense).

In addition to asserting that she disclosed that CACs were being issued to contractors

without proper vetting, which is a claim to be considered under 5 U.S.C. § 2302(b)(8),

IAF, Tab 1 at 5, the appellant also stated that she “refused to commit an illegal act of

issuing . . . CACs without vetting,” which is a claim to be considered under 5 U.S.C.

§ 2302(b)(9)(D), IAF, Tab 8 at 4. Below, the administrative judge construed the

appellant’s claim solely as an allegation of a protected disclosure under section 2302(b)

(8). IAF, Tab 14, Initial Decision at 9-10. The outcome of this affirmative defense, or the

appeal as a whole, would not change based on an interpretation of the claim under section

2302(b)(9)(D). Additionally, the appellant has not challenged the administrative judge’s

interpretation of this affirmative defense, and, given the outcome here, we discern no

reason to disturb it.

of her protected disclosure. ID at 10-12. Accordingly, the administrative judge

affirmed the appellant’s removal.

The appellant has filed a petition for review, asserting that the administrative

judge incorrectly found that the proposing and deciding officials lacked knowledge

of her protected disclosure. Petition for Review (PFR) File, Tab 1 at 4. The agency

has responded to the appellant’s petition for review, and the appellant has replied.

PFR File, Tabs 3-4. 4

DISCUSSION OF ARGUMENTS ON REVIEW

Although the appellant’s claims on review are limited to her whistleblower

reprisal affirmative defense, a brief discussion of the administrative judge’s

findings regarding the charges, nexus, and reasonableness of the penalty of removal

is helpful context for subsequent discussion of her whistleblower reprisal claim.

As such, we briefly discuss those issues first.

The administrative judge correctly sustained the charges, found that a nexus exists

between the removal action and the efficiency of the service, and concluded that the

penalty of removal is reasonable.

Regarding the conduct unbecoming a Federal employee charge, the

administrative judge considered the appellant’s written reply to the charges and her

hearing testimony and concluded that she “does not seriously dispute the factual

allegations” contained in the specifications. 5 ID at 6. He also considered

documentary evidence and testimony from relevant eyewitnesses present during the

Following the close of the record on review, the appellant attempted to file a new

pleading, which the Clerk of the Board rejected, informing her that if she wished to file an

additional pleading, she must first file a motion requesting leave to do so describing the

nature and need for the pleading and showing that the evidence was not readily available

before the record closed. PFR File, Tab 5 at 1; see 5 C.F.R. § 1201.114(a)(5), (k).

Thereafter, the appellant filed a motion requesting leave to file an additional pleading,

stating only that the “[p]leading information was not available at the time of the hearing

or prior to close.” PFR File, Tab 6 at 3. Because the appellant’s motion does not describe

the nature and need for the pleading as required by 5 C.F.R.

§ 1201.114(a)(5) and because she has not explained why the additional pleading was

unavailable before the record closed as required by 5 C.F.R. § 1201.114(a)(5), (k), we

deny the motion.

appellant’s vulgar, disrespectful, and disruptive interactions with her supervisor

and coworkers, and he sustained the charge. ID at 6-7.

Regarding the insubordination charge, the administrative judge again

concluded that the appellant “did not seriously dispute the factual assertions”

underlying this charge and that she, instead, asserted that the instruction to provide

a coworker with information requested by her supervisor was not part of her job

duties. 6 ID at 7-8. After a discussion of the evidence, the administrative judge

found that the order given by the supervisor was proper and, thus, entitled to be

obeyed, and that the appellant “willfully refused to obey the order” as evidenced by

her subsequent “bragg[ing]” about it to another coworker. ID at 8. Ultimately, he

sustained the charge.

As noted, the appellant does not challenge any finding regarding either

charge on review. PFR File, Tab 1. We find the administrative judge’s reasoning

sound, and we discern no basis to disturb his findings. See Crosby v. U.S. Postal

Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the

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

appropriate inferences, and made reasoned conclusions); Broughton v. Department

of Health and Human Services, 33 M.S.P.R. 357, 359 (1987) (same); see 5 C.F.R.

§ 1201.115 (explaining that the Board normally will consider only issues raised in a

timely filed petition for review).

To sustain an action under chapter 75, the agency must also show that there is

a nexus between the action and the efficiency of the service. Hall v. Department of

Defense, 117 M.S.P.R. 687, ¶ 6 (2012). The administrative judge stated that the

proven misconduct “went right to the heart of the appellant’s duties and

responsibilities” and “violates norms of civil behavior expected of [F]ederal

The initial decision sets forth the factual allegations of all the specifications for both

charges. ID at 2-6. Because they are not in dispute on review, we do not restate them

here.

The appellant has not alleged that the instruction would have required her to break the

law.

employees.” ID at 13. Accordingly, he found that the appellant’s removal for

misconduct promotes the efficiency of the service. Id. The appellant has not

challenged this finding on review, and we agree with it. See Parker v. U.S. Postal

Service, 819 F.2d 1113, 1116 (Fed. Cir. 1987) (finding that there was a sufficient

nexus between an employee’s conduct and the efficiency of the service when the

conduct occurred, in part, at work); see 5 C.F.R. § 1201.115.

Regarding the penalty of removal, when, as here, all the charges are

sustained, the Board will review the agency-imposed penalty only to determine if

the agency considered all the relevant factors and exercised management discretion

within the tolerable limits of reasonableness. Ellis v. Department of Defense,

114 M.S.P.R. 407, ¶ 11 (2010); Douglas v. Veterans Administration, 5 M.S.P.R.

280, 306 (1981). Here, the deciding official completed a Douglas factors 7

worksheet and, again in the removal decision, considered the relevant factors

related to the reasonableness of the penalty. IAF, Tab 4 at 26-27, 47-51. She found

that the charged misconduct was very serious because it created an “uncomfortable,

disruptive[,] and at times verbally abusive working environment which ultimately

impacts productivity in the workplace.” Id. at 47. She also explained that the

appellant’s misconduct was repeated, noting a formal reprimand a year prior based

on the similar misconduct of causing disruption in the workplace. Id. at 47-48. She

also stated that she lost all confidence in the appellant’s ability to perform at a

satisfactory level, to perform assigned duties from her supervisor, and to work

together with other staff. Id. at 48. She found that these factors outweighed any

mitigating factor such as the appellant’s 13 years of service with the agency and her

acceptable performance ratings. Id. at 26-27, 48.

The appellant has not challenged on review the administrative judge’s

discussion of the penalty. We agree with the administrative judge that the deciding

official’s penalty analysis reflects an appropriate consideration of the relevant

In Douglas, 5 M.S.P.R. at 305-06, the Board articulated a nonexhaustive list of factors

relevant to the penalty determination in adverse actions.

factors and that the deciding official, therefore, appropriately exercised

management discretion in selecting the penalty of removal. See Ellis,

114 M.S.P.R. 407, ¶ 11. We also agree that the penalty of removal is reasonable.

See Boykin v. U.S. Postal Service, 51 M.S.P.R. 56, 60 (1991) (sustaining the

removal of an employee for use of loud and abusive language about supervisors);

Zara v. Department of Labor, 24 M.S.P.R. 693, 697-98 (1984) (concluding that

removal is a reasonable penalty where the sustained misconduct involved

insubordination and multiple instances of “discourteous and disruptive behavior,”

which affected office operations). We discern no reason to disturb these findings.

We modify the administrative judge’s findings regarding the appellant’s

whistleblower reprisal claim to find that the appellant established a prima facie

case of whistleblower reprisal.

As noted, the appellant raised an affirmative defense of whistleblower

reprisal. IAF, Tab 9 at 2. To establish this affirmative defense, she must show by

preponderant evidence that she made a protected disclosure under 5 U.S.C.

§ 2302(b)(8) or engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A)(i),

(B), (C), or (D), and that the disclosure or activity was a contributing factor in a

personnel action. 5 U.S.C. § 1221(e)(1); Covington v. Department of the Interior,

2023 MSPB 5, ¶ 15. To prove that a protected disclosure or activity was a

contributing factor in a personnel action, the appellant need only demonstrate that

the fact of, or the content of, the disclosure was one of the factors that tended to

affect the personnel action in any way. Covington, 2023 MSPB 5, ¶ 43. The

knowledge/timing test allows an appellant to demonstrate that the disclosure 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 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. If she establishes this prima facie case, the burden shifts to the agency

to prove by clear and convincing evidence that it would have taken the same action

in the absence of the appellant’s whistleblowing. Id., ¶ 45.

Below, the administrative judge found that the appellant proved that she

made a protected disclosure when she disclosed that CACs were being issued to

agency contractors without proper vetting because, although the appellant did not

cite to any written rule, “it is not unreasonable that there would exist a written

requirement that all potential bearers, most especially contractors, be properly

vetted before they are issued a CAC card.” ID at 10. Nonetheless, he found that the

appellant failed to prove that the disclosure was a contributing factor in her

removal. ID at 12. In so finding, he observed that the appellant “readily conceded

during the hearing that neither the proposing official [] nor the deciding official []

had actual or constructive knowledge of her disclosure,” and he discussed the

proposing and deciding officials’ testimony that they were “completely unaware”

of any disclosures the appellant had made about unvetted CACs. 8 Id. Despite

finding that the appellant failed to make a prima facie showing of reprisal, the

administrative judge alternatively found that the agency proved by clear and

convincing evidence that it would have removed the appellant even in the absence

of the protected disclosure. ID at 12-13.

On review, the appellant asserts that the administrative judge erred in finding

that she failed to prove that the proposing and deciding officials were aware of her

disclosure, asserting that she informed the proposing official of her disclosure in a

December 2022 email and referenced her disclosure in her response to the notice of

proposed removal such that the deciding official’s review of the response would

have made her aware of the disclosure. PFR File, Tab 1 at 5. Although these

The administrative judge also considered whether the appellant established constructive

knowledge, wherein an appellant may show that an individual with actual knowledge of

the disclosure influenced the official accused of taking the retaliatory action. ID at 11-12;

see Karnes v. Department of Justice, 2023 MSPB 12, ¶¶ 19, 20. He found that there was

no evidence that either the proposing or deciding official was influenced in any way by

the appellant’s supervisor, who the appellant asserted was aware of her protected

disclosure. ID at 12.

assertions on review contradict the appellant’s hearing testimony that these

officials were not aware of her disclosure, the record includes the appellant’s

response to the notice of proposed removal, and it explicitly references the

disclosure concerning the issuance of CACs without proper vetting. IAF, Tab 4 at

30. In the removal notice, the deciding official stated that she “fully and

impartially considered” the appellant’s written response. Id. at 25. Accordingly,

we find that the record establishes that the deciding official had knowledge of the

appellant’s protected disclosure. 9

The appellant’s reply to the notice of proposed removal appears to be

undated. IAF, Tab 4 at 30-33. The proposal notice was issued on May 17, 2023,

and the final decision was issued on June 29, 2023. IAF, Tab 4 at 25, 56.

Therefore, the appellant’s response was necessarily submitted within that time

frame. Based on these facts, we reason that the deciding official decided to remove

the appellant within approximately 1 month of learning of her protected disclosure,

thereby meeting the timing prong of the knowledge/timing test. See Skarada v.

Department of Veterans Affairs, 2022 MSPB 17, ¶ 19 (stating that a personnel

action taken within 1 to 2 years of the appellant’s disclosure satisfies the

knowledge/timing test).

We conclude that the appellant met the knowledge/timing test, thereby

establishing by preponderant evidence that her protected disclosure was a

contributing factor in the agency’s decision to remove her. See Covington,

2023 MSPB 5, ¶ 43. Accordingly, we modify the initial decision to find that the

appellant established a prima facie case of whistleblower reprisal.

Regarding the appellant’s assertion that the proposing official had knowledge of her

protected disclosure because of a December 2022 email in which she allegedly reiterated

the disclosure, the appellant has not pointed to any such email in the record, and we have

not been able to locate one. Because both the appellant and the proposing official

testified at the hearing that the proposing official did not know of the disclosure, we

decline to disturb the administrative judge’s finding that the appellant failed to prove that

the proposing official had knowledge of the protected disclosure.

We supplement the administrative judge’s discussion of the agency’s burden to

prove by clear and convincing evidence that it would have removed the appellant

even in the absence of her protected disclosure, and we agree that the agency met

this burden.

In determining whether the agency has shown by clear and convincing

evidence that it would have taken the same personnel action in the absence of the

protected disclosure, the Board will consider all relevant factors, including: (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 did not engage in such protected activity, but who are

otherwise similarly situated. Covington, 2023 MSPB 5, ¶ 45; see Carr v. Social

Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).

In the initial decision, the administrative judge concluded that the agency’s

reasons for bringing the charges and for removing the appellant are “quite strong.”

ID at 12. He reiterated that neither the proposing nor deciding official had any

knowledge of the disclosure and found no evidence that the appellant’s supervisor

to whom she made the disclosure influenced them in making their decisions. ID

at 13. He credited both officials’ testimony that they held no bias against the

appellant. Id. Finally, he observed that neither party identified any comparators

who engaged in similar misconduct but who were not whistleblowers. Id. Based on

the foregoing, he concluded that the agency proved by clear and convincing

evidence that it would have removed the appellant even in the absence of her

whistleblowing. Id.

Because the administrative judge’s brief analysis of the agency’s clear and

convincing burden was included as an alternative analysis, and because we modify

the initial decision to find that the appellant established a prima facie case of

whistleblower reprisal, we supplement the administrative judge’s discussion of the

agency’s burden here.

Strength of the agency’s evidence in support of its action

Regarding the strength of the agency’s evidence in support of the appellant’s

removal, we agree with the administrative judge that it is strong. As noted, apart

from the appellant’s explanations and justifications, she does not dispute that she

engaged in the charged misconduct, and at least four eyewitnesses testified at the

hearing that they observed the appellant’s disrespectful and disruptive conduct

around her supervisor and coworkers. Additionally, the administrative judge

correctly found that the agency proved both charges by preponderant evidence. ID

at 6-8. The Board has found that an agency’s ability to meet its burden on the

charges weighs in favor of the agency with respect to its clear and convincing

burden. See Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 36 (2013)

(explaining that the decision to sustain all charges is a factor in weighing in favor

of the agency on the clear and convincing issue); Pedeleose v. Department of

Defense, 110 M.S.P.R. 508, ¶ 24 (2009) (concluding that the agency showed by

clear and convincing evidence that it would have taken the same personnel action

against the appellant despite his whistleblowing by, among other things, providing

sufficient evidence to support the underlying charges), aff’d, 343 F. App’x 605

(Fed. Cir. 2009).

Additionally, as briefly discussed above, the selection of the penalty of

removal is similarly supported, given the nature and seriousness of the offense, the

appellant’s prior discipline for similar misconduct, and the appellant’s supervisor’s

loss of confidence in the appellant’s ability to do her job and uphold the agency’s

mission. See Parbs v. U.S. Postal Service, 107 M.S.P.R. 559, ¶ 25 (2007)

(concluding that aggravating factors such as prior discipline for similar misconduct

weighs against mitigation), aff’d, 301 F.App’x 923 (Fed. Cir. 2008); Gebhardt v.

Department of the Air Force, 99 M.S.P.R. 49, ¶ 13 (2005) (reasoning that factors

supporting the selected penalty are relevant to consideration of the agency’s

evidence in support of its action overall), aff’d, 180 F. App’x 951 (Fed. Cir. 2006);

Jackson v. Department of the Army, 99 M.S.P.R. 604, ¶ 6 (2005) (stating that, when

evaluating whether a penalty is reasonable, the Board considers, first and foremost,

the nature and seriousness of the misconduct and its relation to the employe’s

duties, position, and responsibilities). Therefore, we find that this factor favors the

agency.

Existence and strength of any motive to retaliate on the part of the agency

officials who were involved in the decision

Regarding the existence and strength of any motive to retaliate on the part of

the agency officials involved in the decision, we agree with the administrative

judge that there is no evidence that anyone with an improper animus influenced the

proposing or deciding officials’ actions, and we discern no reason to disturb the

administrative judge’s demeanor-based credibility determination that neither the

proposing nor deciding official themselves held any bias against the appellant. ID

at 12-13; see Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002)

(stating that the Board must give deference to an administrative judge’s credibility

determinations when they are based, explicitly or implicitly, on the observation of

the demeanor of witnesses testifying at the hearing and may overturn such

determinations only when it has sufficiently sound reasons for doing so).

However, we found above that the deciding official had actual knowledge of

the appellant’s disclosure. The U.S. Court of Appeals for the Federal Circuit has

explained that those responsible for the agency’s performance overall may well be

motivated to retaliate even if they are not directly implicated by the disclosure, as

the criticism reflects on them in their capacities as managers and employees. See

Whitmore v. Department of Labor, 680 F.3d 1353, 1370 (Fed. Cir. 2012). The

deciding official is the Chief of Staff of the Tobyhanna Army Depot and is,

therefore, an official responsible for the agency’s performance overall, creating a

potential institutional motive to retaliate. IAF, Tab 4 at 28. Any such possible

motive, however, must be weighed against the fact that she was not the subject of

the disclosure, 10 nor is there any evidence that she suffered any negative

consequences as a result of it. See Young v. Department of Homeland Security,

2024 MSPB 18, ¶ 32 (reasoning that whether an agency official suffers negative

consequences as a result of the appellant’s whistleblowing is relevant to the

question of whether he had a motive to retaliate against the appellant); see also

Larson v. Department of the Army, 91 M.S.P.R. 511, ¶ 17 (2002) (concluding that

the deciding official’s testimony that a disclosure had no impact on his decision to

suspend the appellant was supported by the fact that he was not the subject of the

protected disclosure). In consideration of these factors, we conclude that the

deciding official did not have a strong personal motive to retaliate against the

appellant, but, given her position as the Chief of Staff and her role in the agency’s

performance overall, we find that this factor cuts, at most, slightly in favor of the

appellant. See Whitmore, 680 F.3d at 1370 (stating that, “when a whistleblower

makes highly critical accusations of an agency’s conduct,” an agency official not

being “personally named in the whistleblower’s disclosure is insufficient to remove

the possibility of a retaliatory motive or retaliatory influence on the

whistleblower’s treatment”).

Evidence that the agency takes similar actions against employees who are

not whistleblowers but who are otherwise similarly situated

In considering any evidence that the agency takes similar actions against

employees who are not whistleblowers but who are otherwise similarly situated, we

agree with the administrative judge that neither party identified any employees who

engaged in similar misconduct but who were not whistleblowers. ID at 13. In Soto

v. Department of Veterans Affairs, 2022 MSPB 6, ¶ 18 n.9, the Board recognized

The record is not clear on who the specific subject of the appellant’s disclosure was.

She generally alleges that she disclosed to agency personnel that contractors were not

properly vetted, but we are unable to discern from the record if she has alleged that a

specific employee or office was responsible for the insufficient vetting. IAF, Tab 1 at 5,

Tab 11. In any event, there is no evidence or suggestion in the record that the deciding

official was responsible for the conduct disclosed.

that there are different reasons why a record in an appeal involving a claim of

whistleblower reprisal might not contain relevant comparator evidence. In some

instances, the agency may have failed to make a sufficient proffer of such evidence,

and in others, the agency may have presented persuasive evidence that no

appropriate comparators exist.

Here, there is no evidence regarding the agency’s efforts to determine

whether appropriate comparators exist. Although the deciding official completed a

Douglas factors worksheet indicating that no other employee had committed

similar offenses to those alleged here, IAF, Tab 4 at 49, the Board has found that

such evidence “sheds no light” on whether an agency took the same action for the

same alleged conduct when another employee was not a whistleblower, see Young,

2024 MSPB 18, ¶ 33. We conclude that the record establishes a failure on the part

of the agency to produce evidence on this factor. Accordingly, this factor cannot

weigh in the agency’s favor and may ultimately cause the agency to fail to meet its

overall burden. Whitmore, 680 F.3d at 1374; Semenov v. Department of Veterans

Affairs, 2023 MSPB 16, ¶ 42.

In sum, the agency put forth strong evidence in support of its removal action.

Additionally, the record establishes that the deciding official harbored no personal

retaliatory animus against the appellant, was not the subject of the appellant’s

whistleblowing, and did not suffer any negative consequences as a result of the

appellant’s whistleblowing. On the whole, these considerations outweigh any

possible institutional motive to retaliate related to the second Carr factor and any

dearth of evidence related to the third Carr factor regarding the agency’s treatment

of similarly situated non-whistleblowers. Accordingly, we agree with the

administrative judge’s conclusion that the agency established by clear and

convincing evidence that it would have removed the appellant even in the absence

of her protected disclosure.

Based on the foregoing, we affirm the initial decision, as modified and

supplemented. The appellant’s removal is sustained.

NOTICE OF APPEAL RIGHTS 11

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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. 12 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: