# Maria DeAngelo v. Department of the Army

> Merit Systems Protection Board · November 19, 2025

URL: https://www.frixlaw.com/law-library/cases/11206486

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** November 19, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- 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

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

MARIA DEANGELO, DOCKET NUMBER
Appellant, PH-0752-23-0311-I-1

v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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

1
A nonprecedential order is one that the Board has determined does not add significantly
to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders
have no precedential value; the Board and administrative judges are not required to
follow or distinguish them in any future decisions. In contrast, a precedential decision
issued as an Opinion and Order has been identified by the Board as significantly
contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

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.
3

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

2
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).
3
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.
4

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

4
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.
5

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

5
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.
6
The appellant has not alleged that the instruction would have required her to break the
law.
6

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

7
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.
7

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
8

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

8
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.
9

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.

9
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.
10

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.
11

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
12

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
13

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

10
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.
14

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.
15

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:

11
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.
16

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.
17

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
18

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:
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.

12
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.
19

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 .

FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11206486. Public record. Not legal advice.