Grace Morales v. Department of Homeland Security

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

GRACE MORALES, DOCKET NUMBER

Appellant, AT-1221-14-0656-W-1

v.

DEPARTMENT OF HOMELAND DATE: February 25, 2016

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Denis P. McAllister, Esquire, Glen Cove, New York, for the appellant.

Mary E. Bagby, Esquire, Dallas, Texas, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

denied her request for corrective action in her individual right of action (IRA)

appeal. Generally, we grant petitions such as this one only when: the initial

decision contains erroneous findings of material fact; the initial decision is based

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. See 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 by this Final Order to VACATE the administrative judge’s

finding that there was no evidence of a motive to retaliate on the part of agency

officials, we AFFIRM the initial decision.

BACKGROUND

¶2 Effective September 20, 2009, the Department of Homeland Security (the

agency) appointed the appellant, under the Federal Career Intern Program, to a

Criminal Investigator position with the agency’s U.S. Immigration and Customs

Enforcement Division. Initial Appeal File (IAF), Tab 12 at 112-13. Her

excepted-service appointment was for a term not to exceed 2 years and subject to

termination for unsatisfactory performance. Id. at 112. After the appellant

completed her 6-month training course at the Federal Law Enforcement Training

Center (FLETC), she began working for the agency’s Homeland Security

Investigations (HSI) Field Office in Panama City, Florida. Id. at 12-13.

Effective August 10, 2010, the agency terminated the appellant during her 2-year

trial period for performance and conduct reasons. Id. at 104-09.

¶3 On July 13, 2013, the appellant filed a whistleblower complaint with the

Office of Special Counsel (OSC). IAF, Tab 1 at 18-33. In her OSC complaint,

the appellant alleged that the agency committed a prohibited personnel practice

3

by terminating her in reprisal for disclosing the use of racial profiling to her

first-line supervisor, the Resident Agent-in-Charge (RAC), on April 22, 2010. Id.

at 25. She stated that she told her supervisor, in front of other HSI employees,

that the agency was engaged in racial and ethnic profiling in connection with the

local enforcement of a national operation to discover and detain certain criminal

aliens residing in the United States. Id. She also stated that an agency employee,

her Field Training Officer (FTO), and a local law enforcement officer exceeded

their authority by accessing internal, sensitive, HSI law enforcement databases

and running a list of Hispanic surnames to determine if unlawful aliens were

residing in the Panama City, Florida area, without any reasonable suspicion of

their criminal activity. Id. at 25, 203. She described her disclosure as an abuse

of authority and a violation of law, rule, or regulation by the agency. Id. at 25.

¶4 During the course of OSC’s investigation, the appellant provided OSC with

copies of her April 22, 2010 email to the RAC and her FTO, clarifying her

question about racial profiling, and the RAC’s April 23, 2010 email response.

IAF, Tab 1 at 196-98. OSC concluded that the appellant asked a deferential or

clarifying question about racial profiling, which did not constitute a protected

disclosure under 5 U.S.C. § 2302(b)(8), and issued a closure letter on

February 26, 2014, terminating its investigation. Id. at 11-12. The appellant filed

a timely IRA appeal with the Board, alleging that the agency terminated her on

August 10, 2010, in reprisal for her protected disclosure of racial profiling on

April 22, 2010. 2 IAF, Tab 1 at 2, Tab 8 at 4-6.

¶5 After holding a hearing and finding jurisdiction over the appeal, the

administrative judge issued an initial decision denying the appellant’s request for

corrective action. IAF, Tab 26, Initial Decision (ID) at 1-2; IAF, Tab 25, Hearing

2

Before filing her IRA appeal with the Board, the appellant filed a formal equal

employment opportunity complaint on September 3, 2010, challenging her termination.

IAF File, Tab 13 at 22-23. On October 10, 2011, the agency issued a final agency

decision finding no discrimination, and the appellant did not appeal the decision. Id.

at 22, 30.

4

Compact Disc (HCD). The administrative judge found that the appellant did not

make a protected disclosure of racial profiling during her April 22, 2010

discussion at the shooting range. ID at 11-12. However, the administrative judge

found that the appellant made a protected disclosure based on her April 22, 2010

email to the RAC and her FTO alleging agency abuse of its authority and a

violation of its rules prohibiting racial profiling. ID at 13-15. The administrative

judge also found that the appellant proved that her protected disclosure was a

contributing factor to her termination because the deciding official, the Senior

Agent-in-Charge (SAC), knew about the appellant’s disclosure and terminated her

less than 4 months later. ID at 15-16. The administrative judge nonetheless

found that the agency showed by clear and convincing evidence that it would

have taken the same personnel action absent the appellant’s disclosure. ID

at 27-28.

¶6 The appellant filed a timely petition for review. Petition for Review (PFR)

File, Tab 1. The agency filed a response in opposition to her petition. PFR File,

Tab 3.

ANALYSIS

¶7 In an IRA appeal, after establishing the Board’s jurisdiction, the appellant

must establish a prima facie case of whistleblower retaliation by proving by

preponderant evidence that she made a protected disclosure that was a

contributing factor in a personnel action taken against her. 5 U.S.C. § 1221(e)(1);

Mattil v. Department of State, 118 M.S.P.R. 662, ¶ 11 (2012). If the appellant

meets that burden, the Board shall order such corrective action as it considers

appropriate unless the agency shows by clear and convincing evidence that it

would have taken the same personnel action in the absence of the protected

disclosure. 5 U.S.C. § 1221(e)(1)-(2); Chambers v. Department of the

Interior, 116 M.S.P.R. 17, ¶ 12 (2011). Clear and convincing evidence is that

measure or degree of proof that produces in the mind of the trier of fact a firm

5

belief as to the allegations sought to be established; it is a higher standard than

the “preponderance of the evidence” standard. Sutton v. Department of

Justice, 94 M.S.P.R. 4, ¶ 18 (2003), aff’d, 97 F. App’x 322 (Fed. Cir. 2004); 5

C.F.R. § 1209.4(d). The administrative judge found that the appellant established

a prima facie case of whistleblower retaliation by proving that she made a

protected disclosure in her April 22, 2010 email, which, under the

knowledge/timing test, was a contributing factor in a personnel action taken

against her. ID at 16. We affirm this finding for the reasons set forth below.

The appellant’s termination is a “personnel action” under 5 U.S.C.

§ 2302(a)(2)(A).

¶8 On August 10, 2010, the agency terminated the appellant during her 2-year

trial period. IAF, Tab 12 at 104-09. Terminating an appointment during a trial

period is a “personnel action” under the Whistleblower Protection Act (WPA).

See Downing v. Department of Labor, 98 M.S.P.R. 64, ¶¶ 2-3, 7 (2004); see also

Sirgo v. Department of Justice, 66 M.S.P.R. 261, 267 (1995) (explaining that

terminating a probationer is a personnel action under the WPA). We therefore

find that the appellant has shown that the agency took a covered personnel action

against her.

The appellant’s disclosure of a potential abuse of authority and a violation of the

agency’s rules against racial profiling is a “protected disclosure” under 5 U.S.C.

§ 2302(b)(8).

¶9 Protected whistleblowing occurs when an appellant makes a disclosure that

she reasonably believes evidences a violation of law, rule, or regulation, gross

mismanagement, a gross waste of funds, an abuse of authority, or a substantial

and specific danger to public health and safety. Mudd v. Department of Veterans

Affairs, 120 M.S.P.R. 365, ¶ 5 (2013); see 5 U.S.C. § 2302(b)(8). The proper test

for determining whether an employee had a reasonable belief that her disclosures

were protected is whether a disinterested observer with knowledge of the

essential facts known to, and readily ascertainable by, the employee could

reasonably conclude that the actions evidenced a violation of a law, rule, or

6

regulation, or one of the other conditions set forth in 5 U.S.C. § 2302(b)(8).

Mudd, 120 M.S.P.R. 365, ¶ 5.

¶10 The administrative judge found that the appellant made a protected

disclosure in her April 22, 2010 email to her RAC, expressing concern that

individuals were targeted for a detainment and deportation operation simply

because they owned a car parked at a trailer park, they did not show up in law

enforcement or immigration databases, and they had Hispanic last names. ID

at 14-15. The administrative judge found that the appellant presented undisputed

evidence that racially motivated policing violated a Department of Justice policy

directive applicable to all Federal law enforcement agencies. Id. at 15. The

administrative judge further found that the appellant’s email disclosed an alleged

violation of law, rule, or regulation, and an abuse of Government authority. Id.

at 14. We agree with the administrative judge’s findings on this issue.

The appellant’s conversation at the gun range, seeking advice on preparing the

operational plan (OPPLAN) for Operation Crosscheck without the appearance of

racial profiling, is not a “protected disclosure” under 5 U.S.C. § 2302(b)(8).

¶11 The appellant further argues that she made a protected disclosure of racial

profiling to her FTO and her RAC when they were at the gun range on April 22,

2010, and she expressed her concern about how to write the Crosscheck

OPPLAN, without it appearing to be racial profiling in light of the local deputy’s

list. PFR File, Tab 1 at 5; see ID at 11, n.4. The administrative judge found that

the appellant did not make a protected disclosure at the gun range because a

disinterested observer who heard the appellant’s allegations, as recounted by the

RAC and the FTO in their testimony, could not conclude that the appellant

disclosed any misconduct identified by 5 U.S.C. § 2302(b)(8)(A). The

administrative judge considered the testimony of the RAC and the FTO that the

appellant based her allegation of racial profiling at the gun range simply on the

local detective’s presence in the predominately Hispanic trailer park and the fact

that the surnames on the list he provided appeared to be of Hispanic origin. ID

7

at 11. The administrative judge observed that the FTO and the RAC both

described the appellant’s comments about racial profiling as a “confusing and

poorly conceptualized mess.” Id. The administrative judge also considered the

testimony of the RAC that he was concerned that the appellant did not know what

racial profiling was and he encouraged her to go back to her FLETC materials and

review the law. Id. The administrative judge further found that the appellant’s

testimony about how her FTO and her RAC reacted to her racial profiling

question was not credible. 3 Id.

¶12 Although the appellant disputes on review that she did not make a protected

disclosure of racial profiling during her racial profiling conversation at the

shooting range on April 22, 2010, we find no reason to disturb the administrative

judge’s finding on this issue. PFR File, Tab 1 at 5-6. We find that the

administrative judge thoroughly analyzed this issue and found that the RAC, the

FTO, and another special agent who was at the shooting range that day gave

highly credible testimony directly refuting key details of the appellant’s

uncorroborated account of what transpired at the shooting range in determining

that there was no protected disclosure. ID at 12. The Board will not disturb an

administrative judge’s findings when, as in this case, he considered the evidence

as a whole, drew appropriate inferences, and made reasoned conclusions of

credibility. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997);

Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359

(1987). We therefore affirm the administrative judge’s finding that the appellant

did not make a protected disclosure during her conversation at the gun range.

3

The administrative judge considered the appellant’s testimony that the RAC reacted to

her racial profiling question by shouting at her, questioning her aggressively, and

challenging her knowledge and loyalty to the office and law enforcement mission. ID

at 6. The administrative judge also considered the appellant’s testimony that her FTO

reacted to her racial profiling question by jumping up from his seat and pacing during

the discussion. Id.

8

The appellant has proven that her protected disclosure in her April 22, 2010 email

to her RAC was a contributing factor in the agency’s actions by satisfying the

knowledge/timing test.

¶13 To prevail in her reprisal claim, the appellant must prove by preponderant

evidence that her protected disclosure in her April 22, 2010 email was a

contributing factor in her termination. See 5 U.S.C. § 1221(e)(1). An employee

may demonstrate that a 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. Scott v. Department

of Justice, 69 M.S.P.R. 211, 238 (1995), aff’d, 99 F.3d 1160 (Fed. Cir. 1996)

(Table). The Board commonly refers to this method of proof as the

knowledge/timing test. The Board has found that a period of more than 1 year

between a protected disclosure and a personnel action can satisfy the

knowledge/timing test. See Jones v. Department of the Interior, 74 M.S.P.R. 666,

676 (1997).

¶14 The agency official who decided to terminate the appellant testified that she

became aware of the appellant’s racial profiling concerns shortly after she

expressed them. ID at 16; HCD (testimony of the SAC). Given the deciding

official’s knowledge of the appellant’s protected disclosure, and the proximity in

time of less than 4 months between the appellant’s protected disclosure and her

termination on August 10, 2011, we affirm the administrative judge’s finding that

the appellant has shown that her protected disclosure was a contributing factor to

her termination under the knowledge/timing test. ID at 16.

The agency proved by clear and convincing evidence that it would have

terminated the appellant in the absence of her protected disclosure.

¶15 The remaining issue is whether the agency met its burden of proving by

clear and convincing evidence that it would have terminated the appellant even in

the absence of her whistleblowing activity. In determining whether an agency has

9

met this burden, the Board will consider the following factors: (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 agency officials who were involved in the

decision; and (3) any evidence that the agency takes similar actions against

employees who are not whistleblowers but who are otherwise similarly situated.

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

The Board does not view these factors as discrete elements, each of which the

agency must prove by clear and convincing evidence. Rather, the Board will

weigh the factors together to determine whether the evidence is clear and

convincing as a whole. See, e.g., Yunus v. Department of Veterans

Affairs, 84 M.S.P.R. 78, ¶ 27 (1999), aff’d, 242 F.3d 1367 (Fed. Cir. 2001).

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

termination.

¶16 In the letter terminating the appellant for performance and conduct reasons,

the agency specified that the appellant: (1) responded to a traffic stop on

April 14, 2010, without functional clothing or a visible weapon, and failed to

follow her FTO’s instructions; (2) arrived 30 minutes late for an Operation

Crosscheck briefing that she was scheduled to lead on April 27, 2010; (3) refused

to pat down a subject incident to an arrest, as part of Operation Crosscheck, on

April 27, 2010; (4) failed to prepare for an interview as instructed, on April 30,

2010; (5) falsely identified an investigative subject within a criminal

investigation database on May 25, 2010, because of her failure to conduct a

thorough investigation; (6) arrived 30 minutes late for an operational briefing on

June 11, 2010; and (7) failed to locate a fake lawful permanent resident card in a

bag search on June 29, 2010, because of her failure to conduct a thorough

investigation. IAF, Tab 12 at 106-07. The agency also noted the appellant’s poor

attitude and marginal performance rating at the FLETC. Id. at 107.

¶17 Regarding the first Carr factor, the administrative judge found that the

agency provided strong evidence that it had legitimate reasons to terminate the

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appellant during her trial period. ID at 24. The administrative judge noted that

the deciding official, the SAC, testified that she terminated the appellant based on

her undisputed poor conduct and performance at FLETC, and her poor conduct

and performance in Panama City as reported by her FTO and the RAC. 4 ID at 6.

The administrative judge also noted the deciding official’s testimony that the

appellant’s racial profiling disclosure had no bearing on her termination. ID

at 27. The administrative judge found that the deciding official was a highly

credible witness, and that the FTO, the RAC, and the other agency witnesses

credibly testified about the incidents cited by the deciding official in her

termination letter. ID at 18-26.

¶18 Turning to the appellant’s arguments regarding the first Carr factor, the

administrative judge considered that the appellant admitted many of the incidents

cited in her termination letter, but argued that some of her actions were justified.

For example, the administrative judge considered the appellant’s argument that

she refused her FTO’s April 27, 2010 order to conduct a pat down weapons

search because she understood that her FTO wanted her to perform a more

intrusive physical search of the male subject in violation of agency policy. ID

at 21. The administrative judge nonetheless found that the FTO directed the

appellant only to perform a pat down search, having made a demeanor-based

determination that her FTO’s testimony on this issue was firm, unhesitating, and

4

It is undisputed that the appellant received a student evaluation at FLETC dated

March 12, 2010, rating her performance from September 20, 2009 to March 5, 2010, as

marginal in professionalism, attitude, dependability, participation, cooperativeness, and

initiative. IAF File, Tab 12 at 10. The comments section of her student evaluation also

noted that one of her physical techniques instructors rated her as the worst student he

had seen in 4 years. Id. It also is undisputed that the FLETC Section Chief over basic

training and the FLETC Director of Training approached the SAC in

mid-February 2010, before the appellant graduated from FLETC and began working in

the field office under the SAC’s operational control, and informed the SAC of the

appellant’s performance problems. ID at 4-5. Specifically, they informed the SAC of

the appellant’s tardiness, lack of motivation, poor attitude, failure to follow

instructions, and problems getting along with other students at the FLETC. Id.

11

credible. ID at 21-22. The administrative judge also found that the FTO’s

testimony was consistent with his contemporaneous notes about the incident and

was corroborated by the RAC. ID at 22. In contrast, the administrative judge

found improbable the appellant’s testimony that her FTO spontaneously selected

one subject for an invasive search by the appellant in the presence of several

other officers. Id.

¶19 The Board must defer to an administrative judge’s credibility

determinations based, explicitly or implicitly, on the observation of the demeanor

of witnesses testifying at a hearing, and may overturn such determinations only

when it has “sufficiently sound” reasons to for doing so. Haebe v. Department of

Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant argues on review

that the administrative judge did not base his credibility determinations on his

observations of the witnesses’ demeanor at the hearing. PFR File, Tab 1 at 8, 15.

We disagree. The administrative judge explicitly made thorough and detailed

credibility determinations in accordance with the Board’s framework in Hillen v.

Department of the Army, 35 M.S.P.R. 453, 458 (1987), and he considered the

witnesses’ demeanor in his analysis. 5 ID at 7-23. The administrative judge also

considered the appellant’s explanations for the other incidents cited in the

termination letter, but found that each incident cited in the deciding official’s

termination decision letter was well supported by the record. ID at 24. Although

the appellant takes exception to some of the administrative judge’s factual

findings in analyzing the parties’ evidence, she does not dispute his finding that

5

To resolve credibility issues, an administrative judge must identify the factual

questions in dispute, summarize the evidence on each disputed question, state which

version he believes, and explain in detail why he found the chosen version more

credible, considering such factors as: (1) the witness’s opportunity and capacity to

observe the event or act in question; (2) the witness’s character; (3) any prior

inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the

contradiction of the witness’s version of events by other evidence or its consistency

with other evidence; (6) the inherent improbability of the witness’s version of events;

and (7) the witness’s demeanor. Hillen, 35 M.S.P.R. at 458.

12

the agency had strong evidence to support her termination. 6 We therefore find no

reason to disturb the administrative judge’s finding on this issue.

¶20 The appellant argues on review that the administrative judge’s

determination that the SAC and the RAC provided credible testimony is

inconsistent with the evidence. PFR File, Tab 1 at 7-8. First, the appellant

asserts specifically that the SAC did not credibly testify that on May 4, 2010, she

had not already decided to terminate the appellant. Id. at 11. The appellant

argues that this testimony was not credible because on May 4, 2010, the SAC

already knew about the appellant’s racial profiling disclosure and all of her

performance deficiencies cited in her August 9, 2010 termination letter, except

for the three incidents that occurred after May 4, 2010. Id. at 9-12; IAF, Tab 9

at 13. The appellant submits that this proves the SAC had already decided to

terminate the appellant in retaliation for her racial profiling allegation. PFR File,

Tab 1 at 11.

¶21 Likewise, the appellant disputes the SAC’s credibility insofar as she

testified that she did not forward the appellant’s racial profiling allegations for

investigation because she assumed that the RAC had handled it. Id. at 12-13.

The appellant argues that the SAC’s testimony on this issue is improbable

because, inter alia, “[t]he ‘tag’ of racial profiling in law enforcement is

stigmatizing,” and because the SAC was “an ‘interested witness’ to an allegation

of racial profiling in her area of responsibility.” Id. at 13. We find that the

appellant’s arguments on review constitute mere disagreement with the

administrative judge’s credibility determinations and fact findings, which does

not warrant reversal of the initial decision.

6

For example, the appellant disputes the administrative judge’s finding that she

provided “deliberately false” testimony about arriving late to a meeting on April 27,

2010. ID at 20; PFR File, Tab 1 at 25. The appellant states that she never denied being

late and attempts to explain her testimony that the administrative judge construed as

false. PFR File, Tab 1 at 25.

13

¶22 As to the administrative judge’s finding that the RAC was a credible

witness, the appellant argues that the administrative judge failed to consider that

the RAC was an interested witness in the proceeding because he supervised the

office where the alleged racial profiling occurred. Id. at 14-21. The appellant

also argues “that the record is replete with evidence that [the] RAC . . . was quite

concerned about the Appellant’s allegations and had a desire to keep the lid on

the disclosures.” Id. at 15. In support of her argument, the appellant asserts that

her RAC gave a false account of what transpired at the gun range in the April 23,

2010 email he sent to the appellant. She also asserts that the RAC routinely sent

the FTO copies of his emails to the appellant, but the RAC deliberately did not

include her FTO on the April 23, 2010 email to avoid incrimination because he

too was at the gun range and may have remembered what occurred. Id. at 17-18.

The appellant contends that the administrative judge failed to consider this

critical information in assessing the RAC’s credibility. Id. at 15. The appellant

also argues that the RAC’s testimony that the appellant’s racial profiling

allegations at the gun range were a “confusing and poorly conceptualized mess” is

inconsistent with the content of their April 22-23, 2010 email exchange. Id.

¶23 Based on our review of the record, we find that the RAC provided

consistent testimony concerning the material facts as found by the administrative

judge. ID at 12-15. The appellant offered no new and material evidence on

review to support her arguments that the RAC made false statements in his

August 23, 2010 email or that the RAC and her FTO were not credible. We

further find that the record reflects that the administrative judge properly

considered the record as a whole, including the appearance and substance of the

April 22-23, 2010 emails about the appellant’s racial profiling disclosure and the

witnesses’ hearing testimony, in making his credibility determinations in

accordance with the Board’s guidance in Hillen. ID at 7-24.

¶24 Moreover, although the appellant further argues that the administrative

judge failed to consider certain evidence, it is well settled that an administrative

14

judge’s failure to mention all the evidence in the record does not mean that he did

not consider it in reaching his decision. Marques v. Department of Health &

Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir.

1985) (Table). The appellant raises many other allegations, all of which we have

reviewed, but we find no basis for disturbing the administrative judge’s

demeanor-based credibility determinations. 7 See Frey v. Department of

Labor, 359 F.3d 1355, 1361 (Fed. Cir. 2004) (finding that the evaluation of

witness credibility is a matter within the administrative judge’s discretion and is

“virtually unreviewable”). Having considered the appellant’s arguments on

review, we affirm the administrative judge’s finding that the agency provided

strong evidence that it had legitimate reasons to terminate the appellant during

her trial period. ID at 24.

The existence and strength of any motive to retaliate on the part of agency

officials who were involved in the decision.

¶25 When applying the second Carr factor, the Board will consider any motive

to retaliate on the part of the agency officials who ordered the action, as well as

any motive to retaliate on the part of other officials who influenced the decision.

See Carr, 185 F.3d at 1326. In Whitmore v. Department of Labor, 680 F.3d 1353,

1370 (Fed. Cir. 2012), the U.S. Court of Appeals for the Federal Circuit cautioned

the Board against taking an unduly dismissive and restrictive view of retaliatory

motive, holding that, “[t]hose responsible for the agency’s performance overall

may well be motivated to retaliate even if they are not directly implicated by the

7

For example, the appellant argues that the administrative judge observed that the

agency’s witnesses had no prior performance and conduct problems, unlike the

appellant, to suggest that she “had a propensity for erroneous decision-making, while

the other Agency witnesses did not.” PFR File, Tab 1 at 26. The appellant submits this

as proof that the administrative judge engaged in an “inappropriate attempt at

bootstrapping the ‘credibility’ of agency witnesses because of the absence of

something.” Id. Our review of the administrative judge’s well-reasoned credibility

determinations in the initial decision, however, does not support the appellant’s

argument. ID at 3-27.

15

disclosures, and even if they do not know the whistleblower personally, as the

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

¶26 Here, the administrative judge found no evidence that the agency had any

motive to retaliate primarily because the local police officer who generated the

list of Hispanic surnames did not work for the agency and, before the appellant

made her alleged protected disclosure, the officer leading Operation Crosscheck

refused to include the local officer’s list of names in his operation plan. 8 ID

at 8-10, 24. The administrative judge also noted, inter alia, that the RAC testified

that he believed that the appellant’s racial profiling concerns were unwarranted,

and that his April 23, 2010 email reiterated to the appellant that the agency would

not tolerate racial profiling and employees should report it. ID at 24-25.

¶27 The appellant’s primary argument on review is that the administrative judge

took an uncritical view of the SAC’s and the RAC’s motive to dissemble. PFR

File, Tab 1 at 7, 15. She also appears to argue that the administrative judge failed

to consider her disclosure in its entirety in analyzing the agency’s motive to

retaliate. Id. at 22-24. For the reasons explained below, we find that the

administrative judge took an unduly restrictive view of the evidence under the

second Carr factor.

¶28 The appellant directly implicated her FTO in her protected disclosure by

alleging that he used the local police officer’s list of Hispanic surnames, and he

accessed sensitive HSI databases to check the immigration status of the people on

that list, without any reasonable suspicion of criminal activity. Her FTO reported

to the appellant’s supervisor, the RAC. ID at 5. The RAC reported to the SAC,

who oversaw operations at the Panama City duty station and decided to terminate

the appellant. ID at 4; IAF, Tab 9 at 17. Although the appellant’s disclosure did

8

Operations Crosscheck was under the authority and control of the agency’s Detention

and Removal Operations (DRO). ID at 8. The DRO officer leading Operation

Crosscheck asked the RAC for the assistance of his HSI field office and that assistance

included acting as a liaison with the local police and the county probation and parole

office. ID at 8-9.

16

not directly implicate or harm the RAC or the SAC, her protected disclosure

reflected poorly on them in their capacities as supervisory employees, which is

sufficient to establish a retaliatory motive. See Whitmore, 680 F.3d at 1370.

Thus, we find that there may have been some motive to retaliate against the

appellant for her protected disclosure. We therefore modify the initial decision to

vacate the administrative judge’s finding that there was no evidence of a motive

to retaliate.

Any evidence that the agency takes similar actions against employees who

are not whistleblowers but who are otherwise similarly situated.

¶29 Regarding the third Carr factor, the administrative judge found that the

parties presented very little evidence for him to consider concerning whether the

agency takes similar actions against nonwhistleblower employees who are

otherwise similarly situated to the appellant. ID at 27. The administrative judge

noted that the deciding official testified that she had never seen a trainee agent

with monthly performance ratings as negative as were the appellant’s, and that

she had proposed the termination of the only other special agent under her

supervision who received a “marginal” FLETC evaluation; but he resigned before

he was terminated. Id. The administrative judge did not find, however, that the

special agent who resigned was similarly situated to the appellant. Moreover, the

parties offered no evidence or argument addressing this Carr factor on review.

We therefore find that the third Carr factor is insignificant to our analysis of this

case. See Whitmore, 680 F.3d at 1374 (recognizing that the absence of evidence

relating to the third Carr factor “can effectively remove that factor from the

analysis”).

¶30 Weighing all the Carr factors against one another, we agree with the

administrative judge that the agency met its burden of proving by clear and

convincing evidence that it would have terminated the appellant absent her

protected disclosure. Although we find that the agency officials involved in the

termination decision had some motive to retaliate, we conclude that the agency

17

had a very strong basis to terminate the appellant for her poor performance and

conduct. We therefore conclude that the administrative judge properly denied the

appellant’s request for corrective action.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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 have the right to

request review of this final decision by the U.S. Court of Appeals for the Federal

Circuit.

The court must receive your request for review no later than 60 calendar

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.

Dec. 27, 2012). If you choose to file, be very careful to file on time. The court

has held that normally it does not have the authority to waive this statutory

deadline and that filings that do not comply with the deadline must be dismissed.

See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you want to request review of the Board’s decision concerning your

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge

the Board’s disposition of any other claims of prohibited personnel practices, you

may request review of this final decision by the U.S. Court of Appeals for the

Federal Circuit or any court of appeals of competent jurisdiction. The court of

appeals must receive your petition for review within 60 days after the date of this

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose

to file, be very careful to file on time. You may choose to request review of the

Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other

court of appeals of competent jurisdiction, but not both. Once you choose to seek

review in one court of appeals, you may be precluded from seeking review in any

other court.

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If you need further information about your right to appeal this decision to

court, you should refer to the Federal law that gives you this right. It is found in

title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,

2012). You may read this law as well as other sections of the U.S. Code, at our

website, http://www.mspb.gov/appeals/uscode.htm. 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, and 11. Additional information about

other courts of appeals can be found at their respective websites, which can be

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

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 Merit Systems Protection Board neither endorses the services

provided by any attorney nor warrants that any attorney will accept representation

in a given case.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.