Robin Marcato v. USAID

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 9, 2020 Decided August 24, 2021

No. 19-1041

ROBIN S. MARCATO,

PETITIONER

v.

UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT,

RESPONDENT

MERIT SYSTEMS PROTECTION BOARD,

INTERVENOR

On Petition for Review of an Order

of the Merit Systems Protection Board

Kathleen McClellan argued the cause for petitioner. With

her on the briefs was Jesselyn A. Radack.

Allison Kidd-Miller, Assistant Director, U.S. Department

of Justice, argued the cause for respondent. With her on the

brief were Jeffrey Bossert Clark, Acting Assistant Attorney

General, Robert E. Kirschman, Jr., Director, and Isaac B.

Rosenberg, Attorney.

Tristan L. Leavitt, General Counsel, Merit Systems

Protection Board, Katherine M. Smith, Deputy General

Counsel, and Stephen W. Fung, Attorney, were on the brief for

2

intervenor Merit Systems Protection Board in support of

respondent.

Before: GARLAND, * PILLARD, and KATSAS, Circuit

Judges.

Opinion for the Court filed by Circuit Judge KATSAS.

KATSAS, Circuit Judge: A federal agency may defend an

adverse personnel action taken against a whistleblower by

showing that it would have taken the same action in the absence

of any protected disclosures. In this case, the Merit Systems

Protection Board found that the Office of the Inspector General

(OIG) of the United States Agency for International

Development (USAID) would have fired petitioner Robin

Marcato for workplace misconduct in the absence of her

protected disclosures. We conclude that substantial evidence

supports this finding.

I

The Civil Service Reform Act permits federal employees

to appeal certain adverse personnel actions, including removal

from office, to the MSPB. 5 U.S.C. §§ 7512(1), 7513(d). To

sustain a challenged action before the MSPB, the employing

agency must show that the charged employee conduct

occurred, id. § 7701(c)(1)(B); that the adverse action was

necessary to promote the efficiency of the service, id.

§ 7513(a); and that the penalty imposed was reasonable,

Douglas v. Veterans Admin., 5 M.S.P.R. 280, 299–300 (1981).

See, e.g., Bryant v. Nat’l Sci. Found., 105 F.3d 1414, 1416

*

Then-Judge Garland was a member of the panel when this case

was submitted but did not participate in its final disposition. Judge

Pillard and Judge Katsas have acted as a quorum for this opinion and

judgment. See 28 U.S.C. § 46(d).

3

(Fed. Cir. 1997). The MSPB may not sustain an adverse action

“based on any prohibited personnel practice described in

section 2302(b).” 5 U.S.C. § 7701(c)(2)(B). As relevant here,

section 2302(b) prohibits any adverse personnel action

“because of” an employee’s “disclosure of information” about

unlawful activity, gross agency mismanagement, or similar

conduct. Id. § 2302(b)(8)(A).

The Whistleblower Protection Act permits any federal

employee subjected to a personnel practice prohibited by

section 2302(b)(8) to “seek corrective action” from the MSPB.

5 U.S.C. § 1221(a). In such a case, the employee bears the

burden to show that her protected disclosures were a

“contributing factor in the personnel action.” Id. § 1221(e)(1).

The employee may discharge that burden through

“circumstantial evidence,” including evidence that an official

took the personnel action shortly after learning of the

disclosure. Id. If the employee carries this burden, the agency

can nonetheless prevail by showing “by clear and convincing

evidence that it would have taken the same personnel action in

the absence of such disclosure.” Id. § 1221(e)(2). Factors that

the Federal Circuit has identified as pertinent to this defense

include:

the strength of the agency’s evidence in support of its

personnel action; the existence and strength of any

motive to retaliate on the part of the agency officials

who were involved in the decision; and any evidence

that the agency takes similar actions against

employees who are not whistleblowers but who are

otherwise similarly situated.

Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999).

This burden-shifting framework governs appeals to the MSPB

under the Civil Service Reform Act, which can fairly be

4

described as a kind of “corrective action” for adverse personnel

actions undertaken in retaliation for whistleblowing.

Accordingly, on review of an MSPB decision under the CSRA,

we must determine whether the MSPB correctly applied the

Whistleblower Protection Act framework to factual findings

supported by substantial evidence.

A party aggrieved by an MSPB decision may petition a

court of appeals for review. 5 U.S.C. § 7703(a)(1). Until 2012,

the Federal Circuit had exclusive jurisdiction over such

petitions. See id. § 7703(b)(1)(A). Since then, the regional

circuits have had concurrent jurisdiction over petitions

challenging only the disposition of whistleblower-retaliation

claims. See id. § 7703(b)(1)(B). Because we were given

jurisdiction to review MSPB decisions only recently, we

consult Federal Circuit precedent for guidance, as other

regional circuits have done. See Acha v. USDA, 841 F.3d 878,

880 n.2 (10th Cir. 2016).

II

USAID administers the federal government’s foreign

development assistance program. Hanson v. USAID, 372 F.3d

286, 289 (4th Cir. 2004). The OIG is the Agency’s oversight

arm. Its components include an Office of Investigations, which

conducts criminal and other investigations of grant recipients

and others involved in the agency’s programs, and an Office of

Management, which provides support services to the OIG. In

2012, the OIG hired Marcato to the management office, where

she worked as a management analyst.

During her tenure at OIG, Marcato frequently alleged

misconduct by its high-ranking officials, including Acting

Inspector General Michael Carroll, Deputy Inspector General

Catherine Trujillo, Chief of Staff Justin Brown, and Deputy

Assistant Inspector General Lisa McClennon. Beginning in

5

2012, Marcato reported within the OIG that officials had

doctored various audits and reports sent to Congress. In 2013,

Marcato repeated those allegations to Senate staffers,

prompting a critical letter from Senator Coburn and

unfavorable media coverage in the Washington Post. In

October 2014, Carroll withdrew his nomination to be the

Senate-confirmed Inspector General, and he retired from the

OIG a few months later.

While routinely reporting the misdeeds of others, Marcato

engaged in concerning conduct herself. In December 2014, she

approached Rebecca Giacalone, an agent in the Office of

Investigations, about an ongoing criminal probe on which

Giacalone was working. The investigation concerned

International Relief and Development, Inc. (IRD), which was

Marcato’s former employer and one of USAID’s largest grant

recipients. Marcato identified potential witnesses, including

former IRD employee Dawn Greensides. After Marcato told

Giacalone that Greensides would feel uncomfortable

cooperating, Giacalone asked Marcato to vouch for her to

Greensides as a trustworthy investigator. Marcato proceeded

to send Greensides an e-mail that went well beyond the scope

of Giacalone’s request: Marcato identified the subject of the

investigation, the name of a suspect, and the name of a

cooperating witness, and she stated that the OIG was

considering a subpoena for IRD files. No OIG employee

reviewed the e-mail beforehand or learned of it until a year

later.

Marcato became increasingly preoccupied with the IRD

probe. She would seek to discuss it with Giacalone several

times daily. Giacalone became uncomfortable because

Marcato was not a trained investigator, and her visits were

distracting. Giacalone relayed her concerns to her supervisors

in the Office of Investigations, including McClennon.

6

McClennon passed on the concerns to Trujillo and Robert

Ross, who supervised Marcato in the Office of Management.

Trujillo and Ross then developed a protocol requiring Marcato

to go through Ross if she wanted to speak to Giacalone or enter

the Investigations workspace. In February 2015, Ross and

Trujillo met with Marcato to explain the protocol. Marcato

recorded the meeting on her cell phone, despite a USAID

security policy barring the unauthorized use, in restricted

workspace, of any device that can transmit audio or video.

The protocol failed to dampen Marcato’s efforts to

participate in the IRD investigation. Over the next month,

Marcato e-mailed Giacalone three times to flag possible leads

and to disparage the protocol as an “insulting waste of … time.”

J.A. 83. In March 2015, the Office of Investigations disabled

Marcato’s access to its suite, and Ross again instructed her to

follow the protocol. Yet Marcato violated the protocol at least

three more times in the next six months. On one occasion, she

initiated a conversation with an investigator by standing on

office furniture to speak over the top of a wall dividing the

respective workspace of the Management and Investigations

offices. On another occasion, she trailed someone into the

Investigations suite, then walked past staff who tried to prevent

her from entering.

In October 2015, Ross proposed to reprimand Marcato for

her repeated violations of the protocol. In response, Marcato

attached her e-mail to Greensides, which prompted concern

over its disclosure of sensitive information. Around this time,

Trujillo learned that Marcato had recorded their February 2015

meeting. According to Trujillo, newly confirmed Inspector

General Ann Calvaresi Barr decided to investigate Marcato’s

conduct, including her e-mail disclosure, cell phone recording,

and failure to follow the communications protocol. To avoid

any conflicts of interest, Calvaresi Barr arranged for the OIG

7

of the Department of Defense to conduct the investigation. In

the formal, written request for assistance, Trujillo noted the

“sensitivity” of the investigation given that Marcato “self-

identified as a whistleblower” and had recently made

disclosures to Congress of alleged misconduct by high-ranking

USAID officials. J.A. 62. Trujillo requested DoD’s help to

ensure that the allegations against Marcato were “appropriately

investigated.” Id.

The ensuing investigation consumed over a year. In an

interview, Marcato informed DoD investigators that, at the

beginning of her February 2015 meeting with Ross and

Trujillo, she told them that she would be recording the meeting

with her cell phone, which she visibly placed on a table.

Marcato made similar statements to the USAID security office.

Ross and Trujillo both denied that Marcato told them she would

be recording the meeting.

The DoD OIG finished its probe in June 2017. Its report

substantiated four instances of misconduct. First, Marcato

improperly disclosed sensitive information about an ongoing

investigation to Greensides. Second, Marcato violated

USAID’s security policy by recording the meeting with Ross

and Trujillo on her cell phone. Third, Marcato made false

statements claiming that she told Ross and Trujillo that she

would be recording the meeting. Fourth, Marcato repeatedly

violated the communications protocol.

Debra Scott, Marcato’s direct supervisor at the time,

reviewed the report and proposed that Marcato be removed

based on these charges. Jason Carroll, 1 who had replaced Ross

as the Assistant Inspector General for the Management Office,

then removed Marcato. Scott outlined four charges matching

the instances of misconduct substantiated by the DoD OIG,

1

No relation to former Acting IG Michael Carroll.

8

specifically noting that the disclosure to Greensides “could

have jeopardized the integrity” of an ongoing criminal

investigation and that “knowing falsification in any official

investigation or inquiry strikes at the heart of the employee-

employer relationship and OIG’s core mission.” J.A. 22.

Carroll stated that his confidence in Marcato had been

“irreparably damaged.” Id. at 11.

Marcato appealed her removal to the MSPB. After a four-

day evidentiary hearing, an administrative judge sustained the

decision. He concluded that Marcato committed the charged

conduct, that her removal promoted the effective functioning

of the agency, and that the penalty of removal was reasonable.

The judge then turned to the question of whistleblower

retaliation. Based on circumstantial evidence, he found that

retaliation was a contributing factor in Scott’s decision to

propose removing Marcato and in Jason Carroll’s decision to

remove her. But the judge then found, by clear and convincing

evidence, that the OIG would have removed Marcato even in

the absence of any protected disclosures.

Marcato did not ask the full MSPB to review the judge’s

decision, which became the Board’s final decision by operation

of law. 5 C.F.R. § 1201.113. Because Marcato now contests

only the decision on her retaliation claim, we have jurisdiction

over her petition for review under 5 U.S.C. § 7703(b)(1)(B),

which applies to the disposition of whistleblower-retaliation

allegations raised either as stand-alone claims under the

Whistleblower Protection Act or as affirmative defenses under

the CSRA. See Baca v. Dep’t of the Army, 983 F.3d 1131, 1137

(10th Cir. 2020) (noting that § 7703(b)(1)(B) “does not

differentiate between whistleblower actions raised as direct

claims and those raised as affirmative defenses”).

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III

Marcato disputes whether USAID proved by clear and

convincing evidence that it would have removed her had she

not made any protected disclosures. The clear-and-convincing

standard requires “reasonable certainty of truth.” United States

v. Montague, 40 F.3d 1251, 1255 (D.C. Cir. 1994) (cleaned up).

We review for substantial evidence the administrative judge’s

determination that USAID met its clear-and-convincing

burden. See 5 U.S.C. § 7703(c)(3); Greenspan v. Dep’t of

Veterans Affairs, 464 F.3d 1297, 1306 (Fed. Cir. 2006).

Substantial evidence is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.”

Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). In

reviewing the evidence, we will consider the factors set forth

in Carr, 185 F.3d at 1323, as did the administrative judge.

A

The first Carr factor is “the strength of the agency’s

evidence in support of its personnel action.” 185 F.3d at 1323.

The stronger the evidence, the more likely the agency would

have taken the personnel action. Here, the judge reasonably

determined that Marcato’s removal was supported by “strong

evidence” of significant workplace misconduct. J.A. 723.

First, Marcato sent a highly inappropriate e-mail to

Greensides, a potential witness in an ongoing criminal

investigation. On its face, the e-mail discloses sensitive

information about the investigation, including the subject of the

investigation, the name of a suspect, the name of a cooperating

witness, and information about a potential subpoena. OIG

officials testified that these disclosures could have

compromised the investigation. Marcato’s only response is

that Giacalone asked her to send an e-mail to Greensides. But

Giacalone asked Marcato only to vouch for her to Greensides

10

as a trustworthy investigator; Giacalone specifically denied

authorizing Marcato to disclose the details of the investigation.

The administrative judge plausibly found Giacalone’s

testimony to be credible, and we cannot set aside that “virtually

unreviewable” assessment. King v. HHS, 133 F.3d 1450, 1453

(Fed. Cir. 1998) (quoting Clark v. Dep’t of the Army, 997 F.2d

1466, 1473 (Fed. Cir. 1993)).

Second, Marcato violated a USAID security policy by

recording her February 2015 meeting with Trujillo and Ross on

a cell phone. The policy prohibits using “devices which

transmit audio or video” in restricted areas without the advance

permission of the Agency’s security office. J.A. 428. The

meeting was held in OIG workspace prominently marked as

restricted, and it was undisputed that Marcato did not receive

advance permission. Marcato objects that the USAID security

office, in a February 2016 warning letter to her, stated that it

could not determine whether she had violated the policy. But

that was because Marcato refused to tell the security office

“what type of device was used for these audio recordings.” Id.

at 81. Marcato later admitted to recording the meeting on her

cell phone, in testimony before the DoD investigators and the

administrative judge.

Third, the false-statements charge was amply supported.

While under oath, Marcato told DoD investigators that she had

announced to Trujillo and Ross that she would be recording the

February 2015 meeting with her cell phone, which she visibly

placed on a table. Marcato also made similar statements to the

USAID security office. But after Trujillo and Ross testified to

the contrary, Marcato claimed not to “remember the details of

the meeting.” J.A. 619. And when asked to reconcile that

position with her prior statements, she explained that she “said

what was true to [her] at the time.” Id. at 620. The

administrative judge found the testimony of Trujillo and Ross

11

to be more credible than Marcato’s, and we have no reason to

second-guess that assessment. See Pope v. USPS, 114 F.3d

1144, 1149 (Fed. Cir. 1997). Marcato objects that Trujillo was

biased and gave allegedly inconsistent testimony. But on the

issue of the recording, Trujillo’s testimony was internally

consistent and matched Ross’s testimony. Marcato further

contends that her false statements were not chargeable because

she did not intend to mislead the agency for private material

gain. Marcato forfeited that argument by not raising it until her

reply brief. Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001

(D.C. Cir. 2008). The argument is also meritless; the

administrative judge could reasonably infer an intent to mislead

from the circumstances, and preventing the imposition of

discipline surely qualifies as a private gain.

Fourth, Marcato repeatedly violated the communications

protocol by initiating discussions with the Office of

Investigations. Marcato highlights Ross’s testimony before the

administrative judge that he disagreed with the protocol and did

not think that Marcato needed to follow it. But Ross never

suggested to Marcato that the protocol was optional. Rather,

in the February 2015 meeting, Ross and Trujillo instructed

Marcato to follow the protocol, and Ross’s notes document

several later reminders. J.A. 89 (Mar. 12) (“I instructed Robin

not to initiate any discussions with IG/I staff regarding their

work.”); id. at 88 (Aug. 25) (same); id. at 85 (Sept. 22) (“I am

directing you not to enter the Office of Investigations space

unless authorized by me.”). And as the judge explained, Ross’s

“disagreement” with the protocol did not justify Marcato’s

“refusal to follow” her supervisors’ instructions. Id. at 714.

B

The second Carr factor is “the existence and strength of

any motive to retaliate on the part of the agency officials who

12

were involved in the decision” under review. 185 F.3d at 1323.

Those involved in the decision include the decisionmaker and

“other agency officials who influenced the decision.”

Whitmore v. DOL, 680 F.3d 1353, 1371 (Fed. Cir. 2012)

(quoting McCarthy v. Int’l Boundary & Water Comm., 116

M.S.P.R. 594, 613 (2011)).

1

Marcato contends that the administrative judge improperly

required her to prove the second Carr factor. But the factors

are “merely appropriate and pertinent considerations” in

“determining whether the agency carries its burden of proving

by clear and convincing evidence that the same action would

have been taken absent the whistleblowing.” Whitmore, 680

F.3d at 1374. Here, the judge correctly stated the governing

rule that, if the employee proves that protected activity was a

“contributing factor” in the adverse personnel action at issue,

“the agency must prove by clear and convincing evidence that

it would have taken the same action even absent the disclosure

or other protected activity.” J.A. 719; see 5 U.S.C. § 1221(e).

Then, in applying the rule, the judge concluded that USAID

“has shown by clear and convincing evidence that it would

have taken the same personnel action in the absence of

whistleblowing or protected activity.” J.A. 722. The judge

summarized the motives and testimony of the DoD

investigators and the USAID officials involved in Marcato’s

removal in its analysis of the second Carr factor, and it

weighed that evidence against evidence bearing on the other

Carr factors—including what he characterized as “strong”

evidence of significant misconduct. Id. at 723. After doing so,

the judge restated his conclusion: “I find that the agency has

proven by clear and convincing evidence that it would have

removed the appellant even in the absence of her disclosures.”

13

Id. at 726. This analysis correctly applied the burden-shifting

framework of the Whistleblower Protection Act.

Marcato highlights the judge’s statement, in addressing the

second Carr factor, that she “failed to show retaliatory

motive.” J.A. 724. But the judge had already found that

Marcato’s protected activity was a “contributing factor” in the

termination decision, based on “circumstantial evidence” that

Debra Scott and Jason Carroll removed Marcato while they

knew about at least some of her disclosures. Id. at 720–22. In

analyzing the second Carr factor, the judge made clear that

there was no other evidence of retaliatory motive: Marcato’s

disclosures involved neither Scott nor Jason Carroll; Scott

testified about instances in which she had supported Marcato’s

whistleblowing activity; and Carroll credibly testified that he

made the decision to remove Marcato without any pressure

from his OIG superiors. Id. at 724–25. In context, we

understand the judge to have concluded that there was no

evidence of retaliatory motive beyond the circumstantial case

based on knowledge and timing, which made the evidence of

retaliation relatively weak compared to the strong evidence of

misconduct. See Kewley v. HHS, 153 F.3d 1357, 1364–65

(Fed. Cir. 1998) (“Once the agency presented its evidence in

support of its charges of independent causation for the removal,

[an employee must] rebut the agency’s evidence or risk a

finding that the agency had successfully established its

affirmative defense ….”). While the judge’s language on this

point was perhaps imprecise, we have no doubt that he held

USAID to its ultimate burden to prove by clear and convincing

14

evidence that it would have fired Marcato regardless of her

disclosures.

2

The administrative judge reasonably assessed evidence

about the motives of the officials involved in the decision to

fire Marcato. As the judge explained, Marcato had made no

allegations of wrongdoing against either the proposing official

(Scott) or the removing official (Jason Carroll). Nor were Scott

or Jason Carroll otherwise caught up in the congressional or

media scrutiny that followed her disclosures. Moreover, the

investigation leading to Marcato’s firing was done by an

outside agency—the DoD OIG—and nothing suggested that its

investigators “were influenced by retaliatory animus.” J.A.

724. On review, Marcato does not even suggest such animus

by Scott, Jason Carroll, or the DoD investigators.

Marcato instead focuses on other USAID officials with an

alleged motive to retaliate—Michael Carroll, Trujillo,

McClennon, and Brown—but she provides no evidence that

any of them influenced the removal decision. Michael Carroll

retired before Marcato engaged in much of the misconduct

investigated by DoD. Trujillo left the agency nine months

before the removal decision and testified that she did not

influence the DoD investigation or the USAID removal

decision. McClennon never supervised Marcato and attested

that she never discussed Marcato with Jason Carroll. Brown

had no connection to Marcato beyond forwarding the DoD

report to Scott and Jason Carroll, and he testified that he never

discussed the substance of it with them. Scott and Jason Carroll

corroborated the testimony of Trujillo, McClennon, and Brown

on all of these points.

Marcato primarily contends that USAID initiated the DoD

investigation because of her protected activity. That assertion

15

has several problems. First, Marcato’s own misconduct—

disclosing obviously sensitive information about an important,

ongoing criminal investigation to a prospective witness—

provided ample basis for the investigation. Second, according

to Trujillo, the investigation was ordered not by Trujillo, as

Marcato contends, but by Calvaresi Barr, whom Marcato does

not allege to harbor retaliatory motives. Third, the proposed

reprimand leading to the discovery of Marcato’s unauthorized

disclosures was issued by Ross, whom Marcato describes as

her ally within USAID. Marcato stresses that USAID

outsourced the investigation to DoD because of her

whistleblower status. But she fails to explain why enlisting the

help of an outside agency to investigate serious charges, rather

than conducting the investigation through in-house

investigators who might more readily be perceived to have an

interest in its outcome, should count against USAID here.

Alternatively, Marcato invokes what she describes as

Trujillo’s retaliatory decision to devise the protocol and impose

it on her over Ross’s objection. The governing statute prohibits

any “personnel action” taken “because of” protected

whistleblowing activity. 5 U.S.C. § 2302(b)(8). And the

governing proof scheme makes the agency liable if the

prohibited consideration was a “contributing factor” in the

challenged action, unless the agency shows that it “would

have” taken the same action anyway. Id. § 1221(e). The

Supreme Court construed a similar scheme prohibiting adverse

employment actions because of the employee’s military service

in Staub v. Proctor Hospital, 562 U.S. 411 (2011). Invoking

background principles of proximate cause and agency law, the

Court held that an employer is liable if one of its agents intends

to cause the adverse employment action, acts for the prohibited

reason, and is a proximate cause of the adverse action. See id.

at 419–21. So, for example, an employer may be liable if one

of its employees, for prohibited reasons, successfully persuades

16

a neutral decisionmaker to terminate another employee. See id.

at 413–16.

This case does not fit that model. Marcato’s alternative

theory posits that the retaliatory February 2015 protocol caused

Marcato’s ensuing violations of it, which caused Ross to issue

his proposed reprimand, which caused Marcato to reveal her

past misconduct disclosing sensitive information, which

caused the DoD OIG investigation, which caused her

September 2017 removal. But the protocol merely required

Marcato to obtain permission from her supervisor before

straying outside her lane in the management office; that kind of

modest restriction does not plausibly reflect an intent to

orchestrate an ultimate termination. Moreover, the protocol

was temporally and causally remote from the removal,

separated by Marcato’s intervening decisions (1) to provoke

repeated confrontations rather than asking Ross to approve her

continued contact with Giacalone and (2) to reveal evidence of

significant, previously unknown misconduct regarding her

unauthorized disclosure of sensitive information. Given the

length of this chain, and the unforeseeable twists and turns

within it, the imposition of the protocol cannot be considered a

proximate cause of the termination decision. See, e.g., Anza v.

Ideal Steel Supply Corp., 547 U.S. 451, 457 (2006) (proximate

cause demands “some direct relation between the injury

asserted and the injurious conduct alleged” (quoting Holmes v.

Sec. Invs. Prot. Corp., 503 U.S. 258, 268 (1992)).

For these reasons, the administrative judge permissibly

declined to put much weight on either the decision to impose

17

the communications protocol on Marcato or the decision to

investigate her through DoD.

C

The third Carr factor considers whether the agency has

taken “similar actions against employees who are not

whistleblowers but who are otherwise similarly situated.” 185

F.3d at 1323.

The administrative judge reasonably found this factor to

favor USAID. Its Table of Offenses and Penalties lists both

making a false statement and violating a security regulation as

removable offenses. Moreover, a human-resources official for

USAID OIG testified that several employees who had made

false statements were removed or resigned in lieu of removal,

and the official did not recall that any of them were

whistleblowers. Marcato presents examples of non-

whistleblowers who were not punished for misconduct, but

none of them was similarly situated to her.

IV

After reasonably weighing the Carr factors, the

administrative judge concluded that USAID met its burden to

show, by clear and convincing evidence, that it would have

fired Marcato regardless of her protected activity. Because

substantial evidence supports the judge’s decision, we deny the

petition for review.

So ordered.