Opinion

Larry Greene v. Department of the Army

Court: Merit Systems Protection Board
Filed: May 29, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.8%

explaining that the second Carr factor should be evaluated “more generally” because the factor is directed at agency officials involved in making the decision, not just at the employee’s direct supervisor

How later courts described this case

explaining that the second Carr factor should be evaluated “more generally” because the factor is directed at agency officials involved in making the decision, not just at the employee’s direct supervisor

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LARRY SHELTON GREENE JR., DOCKET NUMBER

Appellant, SF-0752-22-0365-B-2

DEPARTMENT OF THE ARMY, DATE: May 29, 2026

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Larry Shelton Greene Jr. , Elk Grove, California, pro se.

Anne Elizabeth Tower and Charmaine E. Betty-Singleton , Esquire,

Rancho Cordova, California, 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

affirmed his removal for failure to meet a condition of employment. On petition

for review, the appellant reargues that the certification at issue was not a required

condition of his position, argues that the testimony provided by some witnesses

was inaccurate or untruthful, and asserts that the administrative judge erred in

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

concluding that the appellant failed to establish his whistleblower retaliation and

race discrimination affirmative defenses. Generally, we grant petitions such as

this one only in the following circumstances: the initial decision contains

erroneous findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous application of the law to

the facts of the case; the administrative judge’s rulings during either the course of

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affected the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

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

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 clarify the administrative judge’s analysis of the factors set forth

in Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999)

(“Carr factors”), we AFFIRM the initial decision.

In denying the appellant’s whistleblower retaliation affirmative defense,

the administrative judge determined the following: the appellant established that

he was perceived as a whistleblower and made protected whistleblowing

disclosures in connection with his complaints about dysfunction within the

Communications Security (COMSEC) office and his former first-line supervisor’s

misuse of another employee’s credentials; the appellant established that his

disclosures were a contributing factor in the agency’s decision to remove him; but

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

the appellant even in the absence of his protected disclosures based on the Carr

factors. Remand Appeal File (RAF), Tab 28, Remand Initial Decision (RID)

at 11, 19, 28-31. In analyzing the third Carr factor, which considers any

evidence that the agency takes similar actions against similarly situated non-

whistleblowers, the administrative judge determined that the two identified

potential comparator employees were distinguishable from the appellant because

one of the employees passed the certification exam on a third attempt after paying

for it at his own expense and therefore eventually met the condition of

employment, and the other employee was reassigned to another position that did

not require the certification. RID at 30-31. Accordingly, it appears that the

administrative judge determined that neither employee was a valid comparator for

Carr factor three purposes. In doing so, however, he did not explain whether this

factor favored the agency or the appellant. RID at 30-31.

The U.S Court of Appeals for the Federal Circuit has found that the third

Carr factor cannot favor the Government when the Board finds an absence of

relevant comparator evidence. Siler v. Environmental Protection Agency,

908 F.3d 1291, 1299 (Fed. Cir. 2018); Whitmore v. Department of Labor,

680 F.3d 1353, 1374-75 (Fed. Cir. 2012) (noting that, because the agency bears

the burden of proving that it would have taken the same action in the absence of

the appellant’s protected activity, “the absence of any evidence relating to Carr

factor three can effectively remove that factor from the analysis,” and the failure

to produce such evidence if it exists “may be at the agency’s peril”); Karnes v.

Department of Justice, 2023 MSPB 12, ¶ 36 (observing that in the complete

absence of evidence that similarly situated non-whistleblower comparators exist,

Carr factor 3 is effectively removed from consideration and is neutral). For the

reasons set forth in the initial decision, we agree with the administrative judge’s

finding that neither employee was a valid comparator, but we modify the initial

decision to clarify that the absence of evidence on Carr factor 3 does not favor

the agency but is instead a neutral factor and is effectively removed from

consideration.

Reweighing the Carr factors in light of this finding, we still conclude that

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

the appellant in the absence of his protected activity. Addressing the second Carr

factor, which concerns the existence and strength of any motive to retaliate on the

part of the agency officials, the administrative judge determined that any

retaliatory motive was limited, based on the fact that the appellant’s former

first-line supervisor (the official most directly implicated in the appellant’s

disclosures) was not involved in the removal decision and no longer served as the

appellant’s supervisor at the time of his removal, and that the deciding official

had limited general knowledge of the appellant’s disclosures and limited

interactions with the appellant because the appellant had transferred to a different

office by the time of his removal. RID at 10, 29. The administrative judge

nevertheless concluded that some potential professional retaliatory motive existed

based on the appellant’s consistent complaints about the COMSEC office and so

the second Carr factor modestly favored the appellant, with which we agree.

RID at 29-30; see Miller v. Department of Justice, 842 F.3d 1252, 1261-62

(Fed. Cir. 2016) (explaining that the second Carr factor should be evaluated

“more generally” because the factor is directed at agency officials involved in

making the decision, not just at the employee’s direct supervisor); Soto v.

Department of Veterans Affairs, 2022 MSPB 6, ¶ 15 (cautioning against an overly

restrictive view of Carr factor 2 that does not fully consider whether a

“professional retaliatory motive” can be imputed on agency officials when the

protected disclosure or activity implicates agency officials or employees in

general).

We also agree with the administrative judge’s finding that, given that the

missing certification was a required condition of the appellant’s position without

which he could not have privileged network access to the agency’s secure

systems, the agency’s evidence supporting the removal decision was very strong

and the first Carr factor favors the agency. RID at 29. Finally, because none of

the potential comparators are sufficiently similar to the appellant, the third Carr

factor cannot favor the agency and is essentially removed from consideration and

is neutral. Karnes, 2023 MSPB 12, ¶ 36. We conclude that the lack of clear

evidence regarding the third Carr factor as well as any marginal potential motive

to retaliate related to the second Carr factor, are outweighed by the

overwhelming strength of the evidence supporting the agency’s reasons for

removing the appellant based on the essential nature of the required certification

to his job duties, and so the agency met its burden of proving by clear and

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

of his protected disclosures. Consequently, we deny the petition for review and

affirm the initial decision as modified herein.

NOTICE OF APPEAL RIGHTS 2

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.

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.

(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

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. 3 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

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.