Javier Soto v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2022 MSPB 6

Docket No. AT-1221-15-0157-W-1

Javier Soto,

Appellant,

v.

Department of Veterans Affairs,

Agency.

April 20, 2022

Joyce E. Kitchens, Esquire, Atlanta, Georgia, for the appellant.

Kristin Langwell, Esquire, St. Petersburg, Florida, for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

OPINION AND ORDER

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

denied his request for corrective action under 5 U.S.C. § 1221(e). For the reasons

set forth below, we GRANT the appellant’s petition and REMAND this matter for

further adjudication consistent with this Opinion and Order.

BACKGROUND

¶2 The appellant, a reemployed annuitant, occupied the GS-0996-12 Ratings

Veterans Service Representative position with the agency’s Vete rans Service

Center in Orlando, Florida. Initial Appeal File (IAF), Tab 5 at 127. By notice

dated June 30, 2014, the deciding official, who was the Director of the

St. Petersburg Regional Office, separated the appellant from his position and the

2

Federal service, stating without elaboration that his “services [were] no longer

required.” Id. at 27-28. The following day, the appellant sought corrective action

from the Office of Special Counsel (OSC). IAF, Tab 7 at 10-18. He alleged that

his separation was in reprisal for protected disclosures contained in two Quality

Review Team (QRT) Studies, and for various grievances and complaints he filed

in his capacity as Executive Vice President of the American Federation of

Government Employees (AFGE) Local 1594. IAF, Tabs 28-42.

¶3 While the OSC complaint was pending, the deciding official prepared a

memorandum, dated September 22, 2014, setting forth her reasons for separating

the appellant. IAF, Tab 4 at 55-57. Her stated reasons were that the appellant

had engaged in misconduct involving his attendance and work schedule at an

April 2014 equal employment opportunity training and a May 2014 training with

AFGE, and had improperly claimed case credit by making duplicate entries in the

agency’s Automated Standardized Performance Elements Nationwide database in

June 2014. Id. The deciding official explained that, during this 3-month period,

the appellant was dishonest and misled management, refused to follow

instructions, and demonstrated a lack of integrity. Id. at 57. She further stated—

apparently, unbeknownst to her, incorrectly—that removal was the only

disciplinary option available, because, as a reemployed annuitant, the appellant

was “excluded from the legal authority to admonish, reprimand or suspend.” Id.

¶4 By letter dated September 30, 2014, OSC informed the appellant that it had

completed its investigation, and advised him of his right to file an individual right

of action (IRA) appeal with the Board. IAF, Tab 1 at 14-15. The appellant filed

a timely IRA appeal on November 18, 2014. IAF, Tab 1. Following a hearing,

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

for corrective action. IAF, Tab 75, Initial Decision (ID). As a preliminary

matter, he found that the appellant had established Board jurisdiction concerning

his claims that the agency separated him in reprisal for protected disclosures

under 5 U.S.C. § 2302(b)(8) and protected activity under 5 U.S.C.

3

§ 2302(b)(9)(A)(i) and (B). 1 ID at 3-6. Turning to the merits, the administrative

judge found that, assuming the appellant’s comments in the QRT Studies were

protected disclosures, he failed to show that they were a contributing factor in his

separation. ID at 8-12. The administrative judge further found that the appellant

failed to prove that he participated in activity protected under 5 U.S.C.

§ 2302(b)(9)(A)(i), because the grievances he had filed on his own behalf did not

include allegations of whistleblowing reprisal under 5 U.S.C. § 2302(b)(8). ID

at 12-14. However, the administrative judge found that some of the appellant’s

representational activities on behalf of other employees were both protected under

5 U.S.C. § 2302(b)(9)(B) and a contributing factor in his separation. ID at 14-22.

After conducting an analysis of the factors identified in Carr v. Social Security

Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), the administrative judge

determined that the agency had met its burden of proving by clear and convincing

evidence that it would have separated the appellant in the absence of his protected

activity. ID at 22-51.

¶5 This petition for review followed. Petition for Review (PFR) File, Tab 1.

On review, the appellant does not contest the findings below concerning his

claims under 5 U.S.C. § 2302(b)(8) and (b)(9)(A)(i), but he contends that the

administrative judge should have found that he engaged in two additional

protected activities under 5 U.S.C. § 2302(b)(9)(B). Id. at 32-33. He further

argues that, contrary to the findings in the initial decision, the agency failed to

show by clear and convincing evidence that it would have separated him in the

1

The Board has long held that reemployed annuitants enjoy the protections of 5 U.S.C.

§ 2302, unless explicitly excluded from coverage by 5 U.S.C. § 2302(a)(2)(B)(i) or (ii).

Acting Special Counsel v. U.S. Customs Service, 31 M.S.P.R. 342, 346-47 (1986). We

agree with the administrative judge that there is nothing in the statutory language of the

Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat.

1465, to suggest that the Board’s jurisdiction over IRA appeals would not extend to

reemployed annuitants claiming reprisal for protected activity under 5 U.S.C.

§ 2302(b)(9)(A)(i) or (B). ID at 5-6.

4

absence of his protected activity. Id. at 4-31. He also provides medical

documentation concerning a witness, the President of AFGE Local 1594, on the

theory that her health condition explains behavior upon which the administrative

judge relied in making an adverse credibility determination against her. Id. at 16,

36-38; ID at 41-42. The agency has filed a response, to which the appellant has

replied. PFR File, Tabs 3-4.

ANALYSIS

The appellant failed to show that his new claims that he engaged in additional

activity are protected under 5 U.S.C. § 2302(b)(9)(B).

¶6 Under 5 U.S.C. § 2302(b)(9)(B), it is a prohibited personnel practice to take

a personnel action against an employee “because of [the employee] testifying for

or otherwise lawfully assisting any individual” in “the exercise of any appeal,

complaint, or grievance right granted by any law, rule, or regulation[.]” 5 U.S.C.

§ 2302(b)(9)(A)-(B). In deciding the merits of a claim that an agency took a

personnel action in violation of 5 U.S.C. § 2302(b)(9)(B), the Board will analyze

the claim under the burden-shifting framework set forth at 5 U.S.C. § 1221(e).

Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 13 (2015). First, the

Board will determine whether the appellant has established by preponderant

evidence 2 that he was involved in protected activity under 5 U.S.C.

§ 2302(b)(9)(B). Alarid, 122 M.S.P.R. 600, ¶ 13. Next, the Board will determine

whether the appellant’s participation in the protected activity was a contr ibuting

factor in the challenged personnel action at issue. Id. One way of proving that an

appellant’s protected activity was a contributing factor in a personnel action is the

“knowledge/timing” test, which is satisfied by showing that the responsible

agency official knew of the protected activity and took the personnel action

2

Preponderant evidence is the degree of relevant evidence that a reasonable person,

considering the record as a whole, would accept as sufficient to find that a contested

fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

5

within a period of time such that a reasonable person could conclude that the

protected activity was a contributing factor in the action. Id.; see 5 U.S.C.

§ 1221(e)(1). If the appellant makes both of these showings by preponderant

evidence, the burden of persuasion shifts to the agency to prove by clear and

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

the appellant’s protected activity. 3 Alarid, 122 M.S.P.R. 600, ¶ 14.

¶7 An appellant can establish that he engaged in protected activity under

5 U.S.C. § 2302(b)(9)(B) by proving that he testified or otherwise lawfully

assisted another employee in “any appeal, complaint, or grievan ce right granted

by any law, rule, or regulation.” 5 U.S.C. § 2302(b)(9)(A); Alarid, 122 M.S.P.R.

600, ¶ 13. The Board has interpreted the term “appeal, complaint, or grievance”

to mean an initial step toward taking legal action against the agency for a

perceived violation of employment rights. See Graves v. Department of Veterans

Affairs, 123 M.S.P.R. 434, ¶¶ 18-19 (2016); Linder v. Department of Justice,

122 M.S.P.R. 14, ¶¶ 9-11 (2014). Performing union-related duties in support of

another employee’s appeal, complaint, or grievance may constitute protected

activity under 5 U.S.C. § 2302(b)(9)(B). See Carney v. Department of Veterans

Affairs, 121 M.S.P.R. 446, ¶ 6 (2014) (finding that representing an agency

employee during an informal grievance meeting falls under the protective

umbrella of the statute).

¶8 The administrative judge found below that the following activities were

both protected under 5 U.S.C. § 2302(b)(9)(B) and a contributing factor in the

appellant’s separation: (1) a March 2014 discussion with the deciding official

3

Clear and convincing evidence is that measure or degree of proof that produces in the

mind of a trier of fact a firm belief as to the allegations sou ght to be established.

5 C.F.R. § 1209.4(e). Section 1221(e)(2) does not explicitly state that the clear and

convincing evidence test applies to claims of retaliation for protected activity under

5 U.S.C. § 2302(b)(9)(B), because it only addresses disclosures, which are covered by

subsection (b)(8), but the Board has consistently adopted that interpretation. See

Alarid, 122 M.S.P.R. 600, ¶ 14; 5 C.F.R. § 1209.7(b).

6

regarding the venue of a grievance meeting; (2) a May 20, 2014 third-step

grievance filed against an official in the agency’s West Palm Beach location,

alleging improper management interference with union representation of an

unnamed bargaining-unit member regarding a performance improvement plan

(PIP); (3) a May 23, 2014 third-step grievance filed against Human Resources

Management (HRM), concerning a dispute over requests for information (RFIs)

regarding the PIPs of two bargaining-unit members; (4) a June 10, 2014 third-step

grievance alleging that management failed to include AFGE in an unnamed

bargaining-unit member’s PIP meeting; and (5) a June 10, 2014 third-step

grievance against the Chief of HRM, alleging continued delay in responding to

RFIs concerning the PIPs for the two bargaining-unit members. ID at 14-22; IAF,

Tab 40 at 32-33, Tab 41 at 10-11, 43-44, 55-56, Tab 51 at 14-18. On review, the

appellant contends that the administrative judge should have found that the

following activities also were protected: (1) an April 16, 2014 reply to the

proposed admonishment of a bargaining‑unit member; and (2) a May 23, 2014

memorandum to the deciding official objecting to HRM’s response to a n RFI

concerning the PIPs of the two bargaining-unit members. IAF, Tab 40 at 32-33;

ID at 16-21; IAF, Tab 39 at 64-72, Tab 40 at 4-13, Tab 41 at 66-67.

¶9 Regarding the April 16, 2014 reply to the proposed admonishment of

another bargaining-unit member, the administrative judge correctly found that the

appellant’s activity was not protected, because there is no law, rule, or regulation

granting a right to reply to a proposed admonishment. ID at 16-17. Thus, in

making that reply, the appellant did not assist another employee in an appeal,

complaint, or grievance right granted by law, rule, or regulation. 5 U.S.C.

§ 2302(b)(9)(B); see Graves, 123 M.S.P.R. 434, ¶¶ 3, 14 (finding that the

appellant’s testimony before an agency investigative board in support of a

coworker was not protected under 5 U.S.C. § 2302(b)(9)(B) because the

investigation did not constitute the exercise of an appeal, complaint, or grievance

right). On review, the appellant argues that the administrative judge should have

7

considered that a proposed admonishment may be grieved under the applicable

collective bargaining agreement. PFR File, Tab 1 at 32. However, assuming the

appellant is correct that there was a law, rule, or regulation granting the employee

the right to grieve her proposed admonishment under the collective bargaining

agreement, the record does not show that the appellant in fact assisted her in

exercising that right.

¶10 As to the May 23, 2014 memorandum objecting to HRM’s response to the

union’s RFI, the administrative judge found that 5 U.S.C. § 2302(b)(9)(B)

does not cover an RFI unless it was filed in direct support of a grievance or unfair

labor practice complaint. ID at 18-21. The appellant argues that in so finding,

the administrative judge read the statute too narrowly. PFR File , Tab 1 at 32. We

disagree. As noted previously, for activity to be protecte d under 5 U.S.C.

§ 2302(b)(9)(B), an appellant must prove that he lawfully assisted another

employee in “any appeal, complaint, or grievance right granted by any law, rule,

or regulation,” meaning that he took an initial step toward taking legal action

against the agency for a perceived violation of employment rights. 5 U.S.C.

§ 2302(b)(9)(B); Graves, 123 M.S.P.R. 434, ¶ 18. Not every objection, gripe, or

protest about a workplace matter constitutes the sort of complaint lodged in a

formal adjudicatory process that is protected under 5 U.S.C. § 2302(b)(9)(B). See

Owen v. Department of the Air Force, 63 M.S.P.R. 621, 624, 627-28 (1994)

(finding that, although the appellant referred to his report to the Occupational

Safety & Health Administration about his exposure to fumes as a “complaint,” it

was merely an informal “complaint” as the term is used to denote gripes or

objections, rather than a complaint lodged in a formal adjudicative process, and

thus it was not covered by 5 U.S.C. § 2302(b)(9)(B)); see also Von Kelsch v.

Department of Labor, 59 M.S.P.R. 503, 505-06, 508 (1993) (concluding that

filing a claim for compensation under the Federal Employees’ Compensation Act

was not the “exercise of any appeal, complaint, or grievance right” within the

meaning of section 2302(b)(9)(B)), overruled on other grounds by Thomas v.

8

Department of the Treasury, 77 M.S.P.R. 224, 236 n.9 (1998), overruled by

Ganski v. Department of the Interior, 86 M.S.P.R. 32 (2000). The appellant’s

objection to HRM’s RFI response was part of the union’s effort to obtain

information regarding the PIPs of two bargaining-unit members, not a complaint

lodged in a formal adjudicatory process. Conversely, the administrative judge

correctly found protected the appellant’s grievance, which he filed on the same

date as the memorandum and which concerned the same subject matter. See ID

at 17-18; IAF, Tab 40 at 32-33, Tab 40 at 66-67. Thus, the administrative judge

properly determined that the appellant failed to establish that his May 23, 2014

memorandum separately constituted protected activity under 5 U.S.C.

§ 2302(b)(9)(B).

The administrative judge should conduct a new Carr factors analysis on remand.

¶11 We next turn to the question of whether the agency proved by clear and

convincing evidence that it would have separated the appellant absent his

protected activity. In determining whether an agency has met its burden, the

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

similarly situated. Alarid, 122 M.S.P.R. 600, ¶ 14; see Carr, 185 F.3d at 1323.

The Board must consider all the pertinent evidence in the record, and must not

exclude or ignore countervailing evidence by only looking at the evidence that

supports the agency’s position. Alarid, 122 M.S.P.R. 600, ¶ 14; see Whitmore v.

Department of Labor, 680 F.3d 1353, 1367-70 (Fed. Cir. 2012).

¶12 This appeal presents an issue of first impression in that, as a reemployed

annuitant, the appellant served at the will of the agency, and was not entitled to

the procedural protections afforded under chapter 75 of title 5. See 5 U.S.C.

§ 3323(b)(1); Garza v. Department of the Navy, 119 M.S.P.R. 91, ¶ 7 (2012).

9

The administrative judge found that, in light of the appellant’s at-will status, the

analysis of the first Carr factor should be modified as follows:

The critical inquiry for this Carr factor is the mindset of the agency

official who separated the employee at the time the employee was

separated. In this analysis, even if, upon subsequent investigation,

the reasons the official separated a reemployed annuitant turn out to

be unsupported, the agency may still prevail on this Carr factor if it

can demonstrate by clear and convincing evidence that, at the time

he or she took the action, the official’s belief in the reasons

warranting the employee’s separation were objec tively both

reasonable and supportable.

ID at 38-39. On review, the appellant contends that the administrative judge

erred in imposing the modified standard, and that the lack of due process

protections for reemployed annuitants does not affect the agency’s burden of

persuasion under the clear and convincing test. PFR File, Tab 1 at 30-31.

¶13 For the following reasons, we decline to adopt the administrative judge’s

analysis. First, it is not correct to state that an agency may “prevail” on the first

Carr factor, or that it must establish the strength of its reasons by any particular

quantum of evidence. The Board does not view the Carr factors as discrete

elements, each of which the agency must prove by clear and convincing evidence,

but rather weighs these factors together to determine whether the evidence is

clear and convincing as a whole. 4 Alarid, 122 M.S.P.R. 600, ¶ 14; Lu v.

4

For the same reason, the appellant is mistaken in his impression that the agency must

prove the elements of its charges by clear and convincing evidence. PFR F ile, Tab 1

at 11. In a chapter 75 adverse action appeal involving an affirmative defense of

whistleblowing reprisal, proof of the agency’s charges may lend support to a finding

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

same action in the absence of the appellant’s protected disclosures or protected activity.

See Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 37 (2013) (finding that

the administrative judge should reweigh the evidence on remand in light of the full

Board’s finding that the agency proved both of its charges). This does not imply,

however, that proof of the alleged misconduct is either necessary or sufficient to satisfy

the agency’s overall burden, although it is relevant evidence that must be considered.

Id. (reminding the administrative judge that on remand “all the relevant evidence as a

whole” should be considered).

10

Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). Furthermore,

we agree with the appellant that the agency’s burden of proof is not diminished

by his at-will status. While it is true the appellant could have been lawfully

separated with relative ease, it is not sufficient for the agency to establish that its

action was justifiable; rather, the agency must show b y clear and convincing

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

activity. See 5 U.S.C. § 1221(e)(2); Alarid, 122 M.S.P.R. 600, ¶ 14; cf.

Whitmore, 680 F.3d at 1374 (stating that “[t]he whistleblower statute is clear that

even where the charges have been sustained and the agency’s chosen penalty is

deemed reasonable, the agency must still prove by clear and convincing evidence

that it would have imposed the exact same penalty in the absence of the protected

disclosures”). To that end, the agency has offered an explanation that relies on

specific allegations of misconduct, and the strength of the evidence supporting

those allegations does not turn on the procedural protections to which the

appellant was entitled. Cf. Chavez v. Department of Veterans Affairs,

120 M.S.P.R. 285, ¶¶ 30-31 (2013) (assessing the strength of the misconduct

allegations underlying the appellant’s probationary termination, notwithstanding

the limited procedural protections afforded to probationary employees). We

therefore find no basis for departing from the traditional analysis. 5

5

In considering the first Carr factor, the Board assesses the evidence as it stood at the

time of the action, and in light of what the agency officials knew at the time they acted.

Yunus v. Department of Veterans Affairs, 242 F.3d 1367, 1372 (Fed. Cir. 2001). We

agree with the appellant, however, that to focus exclusively on the actual beliefs held

by the agency officials would be inconsistent with our obligation to consider all

pertinent evidence. PFR File, Tab 1 at 31; see Whitmore, 680 F.3d at 1368. For

example, if an agency official fails to investigate a charge sufficiently before bringing

an action, such a failure might indicate an improper motive. Social Security

Administration v. Carr, 78 M.S.P.R. 313, 335 (1998), aff’d, 185 F.3d 1318 (Fed. Cir.

1999). If, on the other hand, relevant facts are developed on appeal to the Board that

the agency had no prior reason to know, we would find that such facts do not undercut

the agency’s otherwise sufficiently clear and convincing evide nce that, at the time of

11

¶14 Turning to the second Carr factor, we agree with the administrative judge

that the appellant’s protected activities, taken in isolation, would not have created

a strong motive to retaliate on the part of either the deciding official, who issued

the decision to separate the appellant, or the HRM official who assisted the

deciding official in taking that action. ID at 48-49. However, the Federal

Circuit, the only circuit to have addressed this issue, has cautioned us against

taking too narrow a view of the second Carr factor. 6 In Whitmore, 680 F.3d

at 1370, the court stated “[t]hose responsible for the agency’s performance

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

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

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

The court in Whitmore determined that, when a whistleblower makes highly

critical accusations of an agency’s conduct that draws the attention of high-level

agency managers, the fact that an agency official is “outside the whistleblower’s

chain of command, not directly involved in alleged retaliatory actions, and not

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

possibility of a retaliatory motive or retaliatory influence,” and that the Board

should consider any motive to retaliate on the part of the agency official who

ordered the action, as well as that of any officials who influenced the action. Id.

at 1371. In Miller v. Department of Justice, 842 F.3d 1252, 1261-62 (Fed. Cir.

2016), the court also instructed the Board not to limit its consideration of a

the action, its decision would have been the same in the absence of the protected

activity. Id.

6

Historically, the Board has been bound by the precedent of the U.S. Court of Appeals

for the Federal Circuit on this issue. However, as a result of changes initiated by the

Whistleblower Protection Enhancement Act of 2012 (Pub. L. No. 112-199, 126 Stat

1465), extended for 3 years (All Circuits Review Extension Act, Pub. L. No. 113-170,

128 Stat. 1894), and eventually made permanent (All Circuits Review Act, Pub. L.

No. 115-195, 132 Stat. 1510), we must consider this issue with the view that the

appellant may seek review of this decision before any appropriate court of appeal. See

5 U.S.C. § 7703(b)(1)(B).

12

motive to retaliate to the appellant’s supervisors, but to examine whether a

retaliatory motive could be imputed more broadly. Similarly, in Robinson v.

Department of Veterans Affairs, 923 F.3d 1004, 1019 (Fed. Cir. 2019), the court

found that, although the deciding official did not have a personal motive to

retaliate against the appellant for contradicting an agency Under Secretary, the

Board’s administrative judge erred by failing to consider whether he had a

“professional retaliatory motive” against the appellant because his disclosures

“implicated the capabilities, performance, and veracity of [agency] managers and

employees, and implied that the [agency] deceived [a] Senate Committee.”

¶15 In sum, the Federal Circuit’s decisions instruct that, in assessing Carr factor

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

officials who were involved in the decision, the Board and its administrative

judges should avoid an overly restrictive analysis and should fully consider

whether a motive to retaliate can be imputed to the agency officials involved and

whether those officials possessed a “professional retaliatory motive,” because the

whistleblower’s disclosures implicated agency officials and employees in general.

In conducting this analysis, all of the record evidence relevant to whether there

was a motive to retaliate and the extent of that motive must be consid ered. 7 See

Whitmore, 680 F.3d at 1368 (“[e]vidence only clearly and convincingly supports a

conclusion when it does so in the aggregate considering all the pertinent evidence

in the record, and despite the evidence that fairly detracts from that conclusion”).

¶16 In the instant case, we find that the administrative judge took to o narrow an

approach in his analysis of Carr factor two and failed to address all of the

relevant record evidence. In particular, the appellant’s protected activities take

7

In Robinson, for example, the court noted that the administrative judge failed to

discuss whether the deciding official had a “professional motive to retaliate,” but

ultimately decided that Carr factor two slightly favored the agency based on its

conclusion that the administrative judge’s crediting of the deciding official’s testimony

that he lacked a motive to retaliate was “not unreasonable.” 923 F.3d at 1019-20.

13

on greater significance against the background of the tense relationship between

the union and agency management in the Orlando office, which several witnesses

described as “dysfunctional.” Hearing Transcript (HT) (Jan. 13, 2016) at 42

(testimony of the deciding official); HT (Jan. 14, 2016) at 261 (testimony of the

third level supervisor), 409 (testimony of the union president). In addition, in a

March 20, 2014 email from the deciding official to the appellant concerning the

proposed location of two third-step grievance meetings, the deciding official

stated: “AFGE’s unwillingness to cooperate on this issue is duly noted. I had

hoped this didn’t have to be such an adversarial relationship.” IAF, Tab 51 at 14.

Furthermore, the appellant’s third-level supervisor had complained to the

deciding official that the union was burdening the Orlando office by filing a large

volume of complaints and RFIs that took up most of management’s time. HT

(Jan. 14, 2016) at 262, 264-66 (testimony of the third level supervisor). The

administrative judge found that this evidence was not relevant because the

deciding official and Chief of HRM did not view the activity as coming from the

appellant in particular. ID at 46. However, it stands to reason that management’s

frustration with the volume of union activity could extend, to at least some

degree, to the appellant’s protected activities, which, though only a small portion

of the whole, could nonetheless have been perceived as adding to the overall

burden. This evidence of labor-management tension in the workplace may or

may not support a conclusion that the second Carr factor weighs against the

agency. However, by rejecting as irrelevant evidence of labor -management

tension in the appellant’s working environment, the administrat ive judge failed to

consider all of the evidence potentially pertaining to motive.

¶17 Regarding the third Carr factor, we find that, contrary to the initial

decision, the record does not definitively establish that the agency has taken

separation actions against reemployed annuitants who engaged in misconduct and

did not engage in protected activity under 5 U.S.C. § 2302(b)(9)(B). ID at 51. At

the hearing, the HRM Chief testified that she had been involved in the separation

14

of 5 to 10 other reemployed annuitants, but she did not identify what positions

those employees occupied or what conduct issues they may h ave had. HT

(Jan. 29, 2016) at 84 (testimony of the HRM Chief). She further testified tha t, to

her knowledge, none of them was “vice president to the union.” Id. However,

protected activity under 5 U.S.C. § 2302(b)(9)(B) is not solely the province of

union vice presidents. Thus, while we agree with the administrative judge that

the record contains no evidence that the agency does not separate reemployed

annuitants who committed misconduct and did not engage in protected activity

under 5 U.S.C. § 2302(b)(9)(B), 8 ID at 51, the record is incomplete regarding

whether the agency does, in fact, take action against individuals w ho committed

misconduct and did not engage in protected activity under 5 U.S.C.

§ 2302(b)(9)(B).

¶18 As the appellant correctly observes, it is the agency that bears the burden of

proving that it would have taken the same action in the absence of his protecte d

activity. PFR File, Tab 1 at 28; see Alarid, 122 M.S.P.R. 600, ¶ 14. While the

agency does not have an affirmative burden to produce evidence concerning each

and every Carr factor, the Federal Circuit has held that “the absence of any

evidence relating to Carr factor three can effectively remove that factor from the

analysis,” but that the failure to produce such evidence if it exists “may be at the

agency’s peril,” and “may well cause the agency to fail to prove its case overall.”

Whitmore, 680 F.3d at 1374-75. Moreover, because it is the agency’s burden of

8

The appellant identified another reemployed annuit ant, also a GS-12 RSVR, who

did not engage in whistleblowing or union activity, and who was placed on “second

signature” as a result of performance problems relating to his failure to follow policy

and procedures in rating claims. HT (Jan. 29, 2016) at 248‑50 (testimony of the

appellant). However, while the third Carr factor requires that the Board take into

account different kinds and degrees of conduct between otherwise similarly situated

employees, Whitmore 680 F.3d at 1373-74, we find that a meaningful comparison

cannot be drawn between the other reemployed annuitant’s perform ance issues and the

appellant’s conduct.

15

proof, when the agency fails to introduce relevant comparator evidence, the third

Carr factor cannot weigh in favor of the agency. Smith v. General Services

Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v. Environmental

Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018). Here, the agency has

introduced some comparator evidence, but its evidence is insufficient to show that

the proffered comparators are in fact appropriate comparators. Under the

circumstances, we find that the agency has failed to introduce complete, fully

explained comparator evidence, the Federal Circuit’s admonitions in Smith and

Siler apply, and Carr factor 3 does not weigh in the agency’s favor. 9

¶19 In light of our findings above, we conclude that it is necessary to conduct a

new analysis of the Carr factors. We further find that the administrative judge is

in the best position to do so, having heard the live testimony. See Shibuya v.

Department of Agriculture, 119 M.S.P.R. 537, ¶ 37 (2013). Accordingly, we

remand the appeal for a new finding as to whether the agency proved by clear and

convincing evidence that it would have separated the appellant in the absence of

his protected activity. The administrative judge may adopt his previous factual

findings and credibility determinations as appropriate. 10

9

We recognize that there are different reasons why a record in a whistleblowing case

might not contain relevant comparator evidence. Here, as in Smith and Siler, the reason

is that the agency failed to make a sufficient proffer of such evidence. In another case,

the agency may present persuasive evidence that no appropriate comparators exist.

Until we are presented with that fact pattern, however, we need not decide that case.

10

On remand, the administrative judge should address documentary evidence indicating

that the agency issued a directive that Automated Standardized Performance Elements

Nationwide records were not to be used in determining employee performance during

the period from May through August 2014. IAF, Tab 34 at 16, ¶ 9. The administrative

judge also may consider whether and to what extent the medical evidence concer ning

the union president might lead him to revise his assessment of her credibility.

16

ORDER

¶20 We remand the appeal to the Atlanta Regional Office for further

adjudication consistent with this Opinion and Order.

FOR THE BOARD:

/s/

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.