Opinion

Garilynn Smith v. Department of the Army

2022 MSPB 4

Court: Merit Systems Protection Board
Filed: Apr 13, 2022
Status: Published
Cited by: 64 cases
Authority: More cited than 91.3%

recognizing that the Board should avoid an overly restrictive analysis of the motive to retaliate and finding that an appellant's disclosures reflected poorly on agency officials as representatives of the agency’s general institutional interests, even though they were not personally implicated by the disclosures

How later courts described this case

recognizing that the Board should avoid an overly restrictive analysis of the motive to retaliate and finding that an appellant's disclosures reflected poorly on agency officials as representatives of the agency’s general institutional interests, even though they were not personally implicated by the disclosures
finding that the managers who proposed and decided not to select an appellant for a vacancy had some motive to retaliate because the appellant’s disclosures reflected on them as representatives of the general institutional interests of the agency, which is sufficient to establish a retaliatory motive
reasoning that the evidentiary record did not support the agency’s proffered explanation for its decision not to select the appellant for a position, and, therefore, the first Carr factor weighed against the agency
finding that the evidentiary record did not support the agency’s explanation for its decision not to select the appellant for a vacant position, and thus Carr factor 1 weighed against the agency

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2022 MSPB 4

Docket No. PH-1221-16-0010-W-1

Garilynn Smith,

Appellant,

Department of the Army,

Agency.

April 13, 2022

Graig P. Corveleyn, Esquire, Hopewell, New Jersey, for the appellant.

Jason Guiliano, Picatinny Arsenal, New Jersey, for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

OPINION AND ORDER

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

granted the appellant’s request for corrective action in this individual right of

action (IRA) appeal. For the reasons set forth below, we DENY the petition and

AFFIRM the initial decision AS MODIFIED by this Opinion and Order, still

granting corrective action. We modify the initial decision by applying the clear

and convincing evidence standard for nondisciplinary IRA cases set forth in

Gonzales v. Department of the Navy, 101 M.S.P.R. 248, ¶¶ 11-12 (2006), and by

directly addressing the second and third factors set forth in Carr v. Social

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

BACKGROUND

¶2 On July 17, 2006, the appellant’s husband, a U.S. Army sergeant and

explosive ordnance disposal technician, was killed in action in Iraq. Initial

Appeal File (IAF), Tab 20 at 38; Hearing Transcript, Volume 1 (HT1) at 7, 18

(testimony of the appellant). Following her husband’s death, the appellant

attempted to obtain information about the disposition of his remains, which had

been flown to Dover Air Force Base, where they were handled by Air Force

Mortuary Affairs Operations (Dover MAO) personnel. HT1 at 29-39, 121

(testimony of the appellant). On April 21, 2011, 1 Dover MAO’s Deputy

Commander sent the appellant a letter stating that her husband’s remains had been

cremated, further incinerated by a medical disposal company, and sent to a

Virginia landfill. IAF, Tab 20 at 39.

¶3 Shortly after receiving this information, the appellant notified the media

and a policy advisor for U.S. Congressman Rush Holt about the mishandling of

service members’ remains by Dover MAO. Id. at 40; HT1 at 42, 48 (testimony of

the appellant). On December 7, 2011, The Washington Post published an article

about the matter that identified the appellant by name. IAF, Tab 8 at 22-26. The

following week, Representative Holt delivered a speech in the U.S. House of

Representatives in which he explained that he would not vote for the National

Defense Authorization Act of 2012 (NDAA) because, inter alia, it did not

mention the desecration of the remains of deceased service members at Dover

MAO. IAF, Tab 21 at 59-60. In his speech, Representative Holt stated that the

appellant had brought the matter to his attention. Id. at 60.

¶4 During this time, the appellant was working at the agency’s Picatinny

Arsenal (Picatinny) in New Jersey. IAF, Tab 4 at 19-20. The appellant served as

Due to an apparent typographical error, the letter is dated April 21, 2008, rather than

April 21, 2011. HT1 at 40-41 (testimony of the appellant).

a GS-08 Management Support Assistant with the Office of the Project Manager,

Maneuver Ammunition Systems (PM MAS), at Picatinny from October 2010,

until March 2012, when she transferred to the Naval Sea Systems Command. Id.;

HT1 at 23 (testimony of the appellant). The appellant was unhappy with her new

position, however, and sought to return to PM MAS. IAF, Tab 20 at 77-79; HT1

at 76 (testimony of the appellant). On July 24 and August 14, 2012, respectively,

a PM MAS Management Services Specialist notified the appellant that a GS-09

Executive Assistant (EA) at PM MAS had taken another job and that a vacancy

announcement for the position was forthcoming. IAF, Tab 20 at 70, 74; HT1

at 80 (testimony of the appellant). The agency issued the vacancy announcement

on September 4, 2012. IAF, Tab 4 at 40-46.

¶5 The appellant applied for the position and was one of 14 candidates on the

certificate of eligibles. IAF, Tab 6 at 33-37. Shortly after the vacancy

announcement closed, two additional news reports were published about the

landfill issue: (1) a September 23, 2012 article in The Washington Post, which

identified the appellant by name, included a photograph of her at the landfill, and

stated that she was instrumental in uncovering the scandal; and (2) a

September 29, 2012 article in The Army Times, which also identified the appellant

by name. IAF, Tab 23 at 5-14. In early October, the selecting official canceled

the vacancy announcement. IAF, Tab 17 at 13.

¶6 On October 19, 2012, the agency posted a second vacancy announcement

for the EA position, which included three additional duties. IAF, Tab 4 at 30-36,

38. The appellant applied for the position and was again placed on the certificate

of eligibles; however, the selecting official chose another candidate for the

position. IAF, Tab 6 at 28-32, Tab 21 at 158-59.

¶7 On January 11, 2013, the appellant filed a complaint with the Office of

Special Counsel (OSC) alleging that she was not selected for the EA position in

reprisal for her disclosures concerning the improper disposal of human remains

by Dover MAO. IAF, Tab 1 at 13-21. On August 4, 2015, OSC terminated its

inquiry into her allegations and issued her a close-out letter and notice of Board

appeal rights. Id. at 9-12.

¶8 The appellant timely filed this IRA appeal and requested a hearing. IAF,

Tab 1. The administrative judge determined that the Board had jurisdiction over

the appeal. IAF, Tab 11. Following a hearing, the administrative judge issued an

initial decision granting the appellant’s request for corrective action. IAF,

Tab 47, Initial Decision (ID) at 1, 25. He found that the appellant proved by

preponderant evidence that she made protected disclosures regarding Dover

MAO’s improper handling of her husband’s remains, and that these disclosures

were contributing factors in the agency’s decision not to select her for the EA

position. ID at 17-22. The administrative judge also concluded that the agency

failed to prove by clear and convincing evidence that it would not have selected

the appellant for that position in the absence of her protected disclosures. ID

at 22-24.

¶9 The agency has filed a petition for review, 2 alleging that the administrative

judge failed to properly admit evidence at the hearing, relied on “inadmissible”

hearsay evidence in the initial decision, and improperly allowed the appellant to

testify as an expert witness on mortuary affairs, yet denied the agency the

opportunity to present a rebuttal expert witness. Petition for Review (PFR) File,

Tab 3 at 5-16. The agency further alleges that the appellant failed to prove the

contributing factor element of her whistleblower claim and that, in any event, it

proved by clear and convincing evidence that it would not have selected the

With its petition for review, the agency submits the hearing transcript in this appeal.

Petition for Review (PFR) File, Tab 3 at 21-550. Because the transcript is already part of

the record, IAF, Hearing Transcript, Volumes 1-2, it does not constitute new evidence. See

Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980).

appellant for the EA position absent her disclosures. Id. at 16-20. The appellant

has filed a response to the petition for review. 3 PFR File, Tab 6.

ANALYSIS 4

The Board declines to dismiss the agency’s petition for review for failure to

comply with the administrative judge’s interim relief order.

¶10 When, as here, the appellant was the prevailing party in the initial decision

and the decision granted the appellant interim relief, any petition for review filed

by the agency must be accompanied by a certification that the agency has

complied with the interim relief order. 5 C.F.R. § 1201.116(a). The agency’s

failure to provide the required certification may result in the dismissal of the

agency’s petition for review. 5 C.F.R. § 1201.116(e).

¶11 In her response to the agency’s petition for review, the appellant moves to

dismiss the petition on the grounds that the agency has failed to provide interim

On July 6, 2017, the day before the agency filed its petition for review, the appellant

filed a “Motion for Enforcement of Interim Relief” with the Board’s Northeastern

Regional Office, alleging that the agency has failed to comply with the administrative

judge’s interim relief order. Smith v. Department of the Army, MSPB Docket

No. PH-1221-16-0010-C-1, Compliance File (CF), Tab 1. The regional office docketed

the motion as a petition for enforcement. Id. On August 17, 2017, the administrative

judge issued an initial decision in the compliance matter stating that the appellant

should have filed her petition for enforcement with the Clerk of the Board instead of the

regional office because the agency had a petition for review of the initial decision

pending before the Board. CF, Tab 5, Compliance Initial Decision (CID) at 3 (citing

5 C.F.R. § 1201.116). The administrative judge thus dismissed the petition for

enforcement and forwarded it to the Clerk of the Board for joinder with the agency’s

petition for review. CID at 3. The initial decision became final on September 21, 2017,

when neither party filed a petition for review. Id. at 4. We DENY the petition for

enforcement because our regulations do not allow for a petition for enforcement of an

interim relief order. See Ayers v. Department of the Army, 123 M.S.P.R. 11, ¶ 7 (2015);

5 C.F.R. § 1201.182(a)-(b).

We have reviewed the relevant legislation enacted during the pendency of this appeal

and have concluded that it does not affect the outcome of the appeal.

relief as ordered by the administrative judge, and has failed to certify its

compliance with the interim relief order. PFR File, Tab 6 at 5-6; see 5 C.F.R.

§ 1201.116(d). We agree with the appellant that the agency has failed to show

that it has complied with the administrative judge’s interim relief order. The

agency’s petition for review did not include a certification that the agency had

complied with the interim relief order, 5 and the agency has not presented any

evidence of compliance. Moreover, although it had the opportunity to do so, the

agency did not reply to the appellant’s response to the petition for review. Thus,

it has not challenged the appellant’s allegations that it failed to provide interim

relief. 6

¶12 Although the Board may dismiss an agency’s petition for review if the

agency fails to establish its compliance with the interim relief order, it need not

do so. Kolenc v. Department of Health & Human Services, 120 M.S.P.R. 101,

¶ 11 (2013). We exercise our discretion in this case not to dismiss the petition for

review because the issue of the agency’s compliance with the interim relief order

is now moot by virtue of our final decision ordering corrective action. See Elder

v. Department of the Air Force, 124 M.S.P.R. 12, ¶ 20 (2016).

As the appellant notes on review, the agency does not mention interim relief in its

petition for review. PFR File, Tab 6 at 6; see generally PFR File, Tab 1.

Although the agency has not addressed the compliance issue, the record in the

compliance matter indicates that the appellant returned to work with the agency as a

GS-09 EA on August 7, 2017. CF, Tab 4. This does not demonstrate full compliance

with the interim relief order, however, as the order directed the agency to appoint the

appellant to the GS-09 EA position effective as of the date of the initial decision, i.e.,

May 19, 2017. ID at 1, 26.

The appellant made protected disclosures.

¶13 Under the Whistleblower Protection Enhancement Act, at the merits stage

of the appeal, the appellant must prove by preponderant evidence 7 that she made a

protected disclosure under 5 U.S.C. § 2302(b)(8), or engaged in activity protected

by 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and that such disclosure or

activity was a contributing factor in a personnel action taken against her.

5 U.S.C. § 1221(e)(1); Lu v. Department of Homeland Security, 122 M.S.P.R.

335, ¶ 7 (2015). If the appellant meets that burden, the agency is given an

opportunity to prove by clear and convincing evidence 8 that it would have taken

the same personnel action absent the protected disclosure or activity. 5 U.S.C.

§ 1221(e)(1)-(2); Lu, 122 M.S.P.R. 335, ¶ 7.

¶14 A protected disclosure is a disclosure that an appellant reasonably believes

evidences a violation of any law, rule, or regulation, gross mismanagement, a

gross waste of funds, an abuse of authority, or a substantial and specific danger to

public health or safety. 5 U.S.C. § 2302(b)(8)(A); Parkinson v. Department of

Justice, 874 F.3d 710, 713 (Fed. Cir. 2017). A reasonable belief exists if a

disinterested observer with knowledge of the essential facts known to and readily

ascertainable by the appellant could reasonably conclude that the actions of the

Government evidence one of the categories of wrongdoing listed in

section 2302(b)(8)(A). Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).

The appellant need not prove that the matter disclosed actually established one of

the types of wrongdoing listed under section 2302(b)(8)(A); rather, the appellant

Preponderant evidence is “[t]he 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).

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

mind of the trier of fact a firm belief as to the allegations sought to be established.”

5 C.F.R. § 1209.4(e).

must show that the matter disclosed was one which a reasonable person in her

position would believe evidenced any of the situations specified in 5 U.S.C.

§ 2302(b)(8). Chavez v. Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 18

(2013).

¶15 Following the hearing in this appeal, the administrative judge issued a close

of record order directing the appellant to submit a brief addressing why she

believed that her disclosure reported a type of wrongdoing listed in 5 U.S.C.

§ 2302(b)(8). IAF, Tab 37. In response, the appellant asserted that Dover

MAO’s practice of sending service members’ remains to a landfill violated

Department of Defense (DOD) Directive 1300.22, Mortuary Affairs Policy,

paragraph 4.2, which provides that the remains of all military members “will be

handled with the reverence, care, and dignity befitting them and the

circumstances.” IAF, Tab 39 at 20.

¶16 The administrative judge provided the agency the opportunity to respond to

the appellant’s brief, and it did so. IAF, Tabs 37, 45. In its post-hearing brief,

the agency argued that the appellant did not make a protected disclosure because

the DOD directive cited by the appellant does not clearly state that what occurred

with the ashes in this case violated that directive or any law, policy, or regulation.

IAF, Tab 45 at 5-6.

¶17 The administrative judge agreed with the appellant, and found that

“dumping the ashes of [service members] into a landfill” fails to accord those

remains the “reverence, care and dignity” required by the DOD directive. ID

at 19-20. Therefore, the administrative judge found that the appellant made a

protected disclosure by reporting conduct that violated this directive. ID

at 18-20.

¶18 In the alternative, the administrative judge found that, even if Dover MAO

did not violate the DOD directive, the appellant’s disclosures were nonetheless

protected because she established that she reasonably believed that Dover MAO

had committed some violation of law, rule, or regulation when it dumped portions

of her husband’s remains in a Virginia landfill. ID at 20-21. The administrative

judge noted that all of the agency’s managerial witnesses, including a U.S. Army

Major General, testified that they were appalled to learn how the appellant’s

husband’s remains had been handled, and Representative Holt also believed that

Dover MAO had treated service members’ remains in a most undignified manner.

ID at 19-21. Based on this evidence and hearing testimony, the administrative

judge found that a disinterested observer could reasonably conclude that the

actions the appellant disclosed evidenced a violation of a law, rule, or regulation.

ID at 21. Therefore, the administrative judge found, and we agree, that the

appellant’s disclosures are protected. Id.

The appellant proved contributing factor under the knowledge/timing test.

¶19 To prevail in an IRA appeal, an appellant also must prove by preponderant

evidence that her protected disclosures were a contributing factor in a personnel

action. Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 21 (2016). The

term “contributing factor” means any disclosure that affects an agency’s decision

to threaten, propose, take, or not take a personnel action regarding the individual

who made the disclosure. Id.; 5 C.F.R. § 1209.4(d). The most common way of

proving the contributing factor element is the “knowledge/timing test.” Scoggins,

123 M.S.P.R. 592, ¶ 21. Under that test, an appellant may prove the contributing

factor element through evidence that the official taking the personnel action knew

of the disclosure and took the personnel action within a period of time such that a

reasonable person could conclude that the disclosure was a contributing factor in

the personnel action. Id. Once an appellant has satisfied the knowledge/timing

test, she has demonstrated that a protected disclosure was a contributing factor in

a personnel action. Id.

¶20 Regarding the knowledge prong of the test, the administrative judge found

that the evidence presented at the hearing shows that Picatinny management

officials were aware of the appellant’s disclosures since at least the spring of

2011. ID at 21. As for the timing prong of the test, the administrative judge

found that the appellant’s disclosures, and the news reports about those

disclosures, continued until September 2012, i.e., approximately 1 month before

the selecting official decided not to select the appellant for the EA position. 9 Id.;

see Scoggins, 123 M.S.P.R. 592, ¶ 25 (finding that a personnel action that occurs

within 2 years of the appellant’s disclosure satisfies the timing component of the

knowledge/timing test). Therefore, the administrative judge found, the appellant

clearly satisfied the knowledge/timing test. ID at 22.

¶21 The agency challenges this finding on review; however, it does not dispute

that Picatinny management officials knew of the appellant’s disclosures before

they decided not to select her. PFR File, Tab 3 at 16 (stating that the agency

“freely admits” that it was aware of the appellant’s alleged whistleblowing prior

to the personnel action in question); IAF, Tab 24 at 4-5 (same). It also does not

dispute that the length of time between the appellant’s disclosures and her

nonselection was sufficiently short to satisfy the timing prong of the test.

PFR File, Tab 3 at 16-18. The agency contends that the appellant nonetheless

failed to prove contributing factor because the knowledge/timing test also

“requires a reasonable person standard as to that knowledge being a contributing

factor to the personnel action” and the appellant has not met that standard. Id.

at 16.

¶22 This argument is unpersuasive. As previously indicated, once an appellant

has satisfied the knowledge/timing test, she has met her burden of proving

contributing factor. Scoggins, 123 M.S.P.R. 592, ¶ 21. The appellant clearly has

Although it is unclear exactly when the agency decided not to select the appellant for

the EA position, the agency contends that the appellant’s nonselection occurred on or

about October 31, 2012. IAF, Tab 4 at 8.

satisfied that test, as it is undisputed that agency management officials knew of

the appellant’s whistleblowing disclosures and made the decision not to select her

within a period of time sufficiently short to satisfy the knowledge/timing test.

Under these circumstances, we agree with the administrative judge that the

appellant proved that her protected disclosures were a contributing factor in her

nonselection. ID at 21.

The agency failed to show by clear and convincing evidence that it would have

nonselected the appellant for the EA position absent her protected disclosures.

¶23 When, as in this case, an appellant shows by preponderant evidence that she

made protected disclosures and that those disclosures were a contributing factor

in the decision to take a personnel action, the burden shifts to the agency to prove

by clear and convincing evidence that it would have taken the personnel action in

the absence of the whistleblowing. See 5 U.S.C. § 1221(e)(2); Scoggins,

123 M.S.P.R. 592, ¶ 26. In determining whether an agency has met its burden,

the Board generally considers 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 the 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).

Factor (1) does not apply straightforwardly to this case, however, as the personnel

action at issue here is not disciplinary in nature, and therefore does not require

supporting evidence of misconduct. Gonzales, 101 M.S.P.R. 248, ¶ 12. Instead,

it is appropriate to consider instead the broader question of whether the agency

had legitimate reasons for the appellant’s nonselection. Id.; see Schnell v.

Department of the Army, 114 M.S.P.R. 83, ¶¶ 17, 23 (2010) (applying Gonzales

in adjudicating a nonselection for a temporary position). The U.S. Court of

Appeals for the Federal Circuit has further clarified that “[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.” Whitmore v. Department of Labor,

680 F.3d 1353, 1368 (Fed. Cir. 2012).

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

agency’s explanation for not selecting the appellant lacked credibility because it

was “riddled with inconsistencies” and that the agency “utterly failed to justify its

selection decision.” ID at 23-24. In making this finding, the administrative judge

noted that the selecting official and two other management officials testified

during the hearing that the appellant was not suited for the EA position for the

following reasons: (1) the appellant had problems getting along with coworkers;

(2) she had “leave usage” issues; and (3) she frequently demanded teleworking

arrangements. ID at 24. The administrative judge found that none of these

reasons for refusing to select the appellant were supported by the evidentiary

record. Id. In particular, the administrative judge found that the agency’s claim

that the appellant had trouble getting along with coworkers was directly

contradicted by management in the appellant’s 2010-2011 performance

evaluation, as she received the highest possible rating under the category

“Working Relationships & Communications.” ID at 15, 24; IAF, Tab 22 at 89.

¶25 The administrative judge further noted that the appellant’s second-line

supervisor, who criticized the appellant’s ability to work with other

administrative assistants and cast doubt on her leadership ability during the

hearing, praised the appellant’s performance on her evaluation form. ID at 15.

As the administrative judge noted, the supervisor stated in his Senior Rater

comments that the appellant could be relied on to train and assist senior

administrative assistants on various tasks, had the capability and desire to excel

in positions well above the administrative level, and had outstanding potential to

succeed in a position of higher authority and responsibility. ID at 15-16; IAF,

Tab 22 at 89. The administrative judge also found management’s purported

concern about the appellant’s request for telework “an odd one,” given that she

made the request so that she could work for the agency while she was out on

maternity-related sick leave, instead of being unable to make any work-related

contributions during that time. ID at 14.

¶26 On review, the agency argues that, because the appellant was applying for a

GS-09 position and the performance evaluation pertains to her performance in a

GS-08 position, the administrative judge should have given less weight to the

appellant’s performance evaluation and more weight to the testimony of agency

officials regarding their concerns about the appellant’s potential for

accomplishing GS-09 level work. PFR File, Tab 3 at 18. This argument is

unpersuasive. If the appellant had difficulty getting along with others, that

should have been reflected in her performance evaluation. Her excellent rating in

all categories, including “Working Relationships & Communications,” and the

praise she received from agency management in her performance evaluation,

severely undermine the legitimacy of the agency’s reasons for its decision not to

select her for the EA position. Accordingly, we agree with the administrative

judge’s assessment of the first Carr factor and find that the agency did not have

legitimate reasons for not selecting the appellant.

¶27 We next consider the second Carr factor, the strength of any motive to

retaliate on the part of any agency officials who were involved in the decision in

question. As the administrative judge noted in the initial decision, although the

appellant’s protected disclosures exposed misconduct by personnel from the

Department of the Air Force, rather than the Department of the Army, the

evidence shows that the ramifications of the appellant’s disclosures were not

confined to the Air Force. ID at 22. For example, the record contains a

December 6, 2011 email from a Washington Post reporter notifying the appellant

of DOD personnel’s reaction to a Facebook post in which she stated that an

article about Dover MAO would be published soon. IAF, Tab 23 at 299. In the

email, the reporter states that the appellant “gave some DoD people a heart

attack” and that DOD personnel were “really worried” about the upcoming

article. Id. Thus, as the administrative judge found, the record shows that the

appellant’s disclosures were a source of anxiety for DOD personnel other than Air

Force officials. ID at 22. Further, because Representative Holt decided not to

vote for the NDAA of 2012, in part due to the appellant’s disclosures, and the

NDAA provides funding to all DOD agencies, those disclosures arguably

jeopardized funding for every agency in DOD. Id.; IAF, Tab 21 at 59-60.

¶28 In evaluating the second Carr factor, we also have considered the court’s

decision in Whitmore, 680 F.3d at 1371, which cautioned the Board against taking

an unduly dismissive and restrictive view of retaliatory motive. The Whitmore

court stated 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

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

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

at 1370. Applying this broader view of retaliatory motive, the court has found

that an official may have a retaliatory motive even if he is not “directly involved

in the work at issue in an employee’s disclosure.” Miller v. Department of

Justice, 842 F.3d 1252, 1261-62 (Fed. Cir. 2016). In another case, an agency

official took a personnel action against a whistleblower employee, but that

official was not personally implicated in the employee’s disclosures, which

concerned congressional testimony by a different agency official. The court

determined that the Board’s administrative judge erred by failing to consider

whether the agency official who took the personnel action nonetheless had a

“professional retaliatory motive” against the employee because his disclosures

regarding the alleged inaccuracy of an agency Under Secretary’s congressional

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

managers and employees, and implied that the [agency] deceived [a] Senate

Committee.” Robinson v. Department of Veterans Affairs, 923 F.3d 1004,

1008-09, 1018-19 (Fed. Cir. 2019).

¶29 In this matter, although none of the agency officials involved in the

decision not to select the appellant was directly implicated in the mishandling of

service members’ remains, the misconduct the appellant disclosed was egregious

and her disclosures generated a significant amount of negative publicity for the

DOD. Given these circumstances, the appellant’s disclosures reflected poorly on

DOD officials as representatives of the general institutional interests of the DOD,

which is sufficient to establish a retaliatory motive. See Whitmore, 680 F.3d

at 1370; Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶ 69 (2011).

We therefore find that the agency officials involved in the decision not to select

the appellant had some motive to retaliate against her for her disclosures.

¶30 As for the third Carr factor, there is no record evidence concerning the

agency’s treatment of similarly situated nonwhistleblowers. As previously

explained, it is the agency that bears the burden of proving that it would have

taken the same action in the absence of the appellant’s protected activity. Alarid

v. Department of the Army, 122 M.S.P.R. 600, ¶ 14 (2015). While the agency

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

every Carr factor, and “the absence of any evidence relating to Carr factor three

can effectively remove that factor from the analysis,” 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 the agency bears the burden of proof at this stage of the

analysis, when the agency fails to introduce relevant comparator evidence, the

third Carr factor cannot favor 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

failed to proffer any evidence pertaining to Carr factor three. Under these

circumstances, Carr factor 3 cannot weigh in the agency’s favor.

¶31 We therefore find that the agency did not have legitimate reasons for its

failure to select the appellant for the EA position, that the agency officials

involved in the decision had some motive to retaliate, and that the agency’s

failure to provide evidence in support of Carr factor 3 does not favor the agency.

Thus, we agree with the administrative judge that the agency failed to prove by

clear and convincing evidence that it would have taken the same action absent the

appellant’s protected disclosures. 10 ID at 24. We therefore agree with the

administrative judge’s determination that the appellant is entitled to corrective

action. Id.

The agency’s evidentiary arguments provide no basis to disturb the initial

decision.

¶32 The agency also argues on review that the administrative judge did not

follow “required evidentiary procedures” and erred in relying on documents that

were not properly admitted as evidence during the hearing. PFR File, Tab 3 at 5,

7-11. In addition, the agency claims that the administrative judge improperly

considered hearsay evidence, such as excerpts from Representative Holt’s speech.

Id. These arguments are unavailing, as it is well settled that strict adherence to

the Federal Rules of Evidence and of Civil Procedure is not mandatory in

administrative proceedings, Crawford v. Department of the Treasury, 56 M.S.P.R.

Although the administrative judge did not explicitly address the second and third

Carr factors in his analysis, we find it unnecessary to remand the appeal because

resolution of the clear and convincing issue in this case does not require additional

credibility determinations or further development of the record. Cf. Shibuya v.

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

administrative judge was in the best position to reweigh the evidence on the clear and

convincing issue because she was the one who heard the live testimony and made

credibility determinations).

224, 233 (1993), and hearsay evidence is admissible in Board proceedings,

Shannon v. Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 15 (2014).

¶33 The agency further argues on review that the administrative judge erred by

allowing the appellant to testify as an expert in Air Force mortuary affairs policy,

but not granting its post-hearing request to present rebuttal expert testimony from

Dover MAO personnel familiar with the regulations at issue and the handling of

remains by the Air Force. PFR File, Tab 3 at 11-16; IAF, Tab 45. The agency

asserts that such testimony was necessary for the appellant to prove that Dover

MAO’s handling of service members’ remains violated a law, rule, or regulation.

PFR File, Tab 3 at 15.

¶34 An administrative judge has wide discretion to control the proceedings

before him, to receive relevant evidence, and to ensure that the record on

significant issues is fully developed. See Tisdell v. Department of the Air Force,

94 M.S.P.R. 44, ¶ 13 (2003); 5 C.F.R. § 1201.41(b). The hearing transcript

shows that the appellant did not testify as an expert witness in mortuary affairs.

Hearing Transcript, Volume 2 (HT2) at 517-26 (testimony of the appellant).

Rather, the administrative judge merely questioned the appellant as to her

knowledge of Dover MAO policy regarding the disposition of service members’

remains. Id. at 519-26 (testimony of the appellant). This line of questioning was

entirely appropriate and agency counsel did not object to it during the hearing.

Id. Also, agency counsel had the opportunity to question the appellant about her

testimony, but chose not to do so. HT2 at 526 (testimony of the appellant).

¶35 Further, even assuming that expert testimony was necessary for the

appellant to establish that Dover MAO’s mishandling of service members’

remains violated a law, rule, or regulation, the absence of such testimony

provides no reason to disturb the initial decision because it did not affect the

outcome of the case. See Karapinka v. Department of Energy, 6 M.S.P.R. 124,

127 (1981) (explaining that an administrative judge’s procedural error is of no

legal consequence unless it is shown to have adversely affected a party’s

substantive rights). As previously discussed, the appellant was not required to

prove that a violation of law, rule, or regulation had occurred. Rather, she was

required to prove that a disinterested observer could reasonably conclude that the

actions of Dover MAO personnel evidenced a violation of a law, rule, or

regulation. Lachance, 174 F.3d at 1381. Satisfying this standard did not require

expert testimony.

The agency has failed to prove its allegation of judicial bias.

¶36 The agency also raises an apparent claim of bias on review, alleging that the

administrative judge “was obviously sympathetic” to the appellant and was so

outraged by the mishandling of her husband’s remains that he decided to rule

against the agency, regardless of the evidence. PFR File, Tab 3 at 5, 14. It

further contends that, in the initial decision, the administrative judge engaged in a

“shocking personal attack” on agency counsel when addressing the agency’s

argument in its post-hearing brief that, because DOD Directive 1300.22 does not

specify what qualifies as the “requisite care, reverence, and dignity befitting [the

remains] and the circumstances . . . what we have here is more of a philosophical

or theological debate than anything else.” Id. at 14.

¶37 Although the agency does not specifically identify the administrative

judge’s alleged “personal attack” on agency counsel, it appears to be referring to

the following statement by the administrative judge in response to the above

argument: “The agency should be disabused of the notion that a landfill is a

dignified resting place for the remains of a U.S. Army Soldier who gave his life

in the service of his nation.” ID at 18. This statement is not a personal attack on

agency counsel. Moreover, given the reprehensible manner in which Dover MOA

personnel handled the remains of the appellant’s husband and other service

members, we find the administrative judge’s statement to be a measured and

reasonable response to the agency’s appalling suggestion that dumping service

members’ remains in a landfill could ever qualify as “the requisite care,

reverence, and dignity befitting the remains and the circumstances.”

¶38 Further, in making a claim of bias or prejudice against an administrative

judge, a party must overcome the presumption of honesty and integrity that

accompanies administrative adjudicators. Oliver v. Department of

Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative judge’s conduct

during the course of a Board proceeding warrants a new adjudication only if his

comments or actions evidence “a deep-seated favoritism or antagonism that would

make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d

1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540,

555 (1994)); Smets v. Department of the Navy, 117 M.S.P.R. 164, ¶ 15 (2011),

aff’d per curiam, 498 F. App’x 1 (Fed. Cir. 2012). The agency’s allegations on

review, which do not relate to any extrajudicial conduct by the administrative

judge, neither overcome the presumption of honesty and integrity that

accompanies an administrative judge, nor establish that he showed a deep-seated

favoritism or antagonism that would make fair judgment impossible.

ORDER

¶39 We ORDER the agency to appoint the appellant to the position of Executive

Assistant, GS-03019-09, at Picatinny Arsenal, New Jersey. See Kerr v. National

Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must

complete this action no later than 20 days after the date of this decision.

¶40 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶41 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and to describe the

actions it took to carry out the Board’s Order. The appellant, if not notified,

should ask the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶42 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision in this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶43 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

¶44 This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.

§ 1201.113).

NOTICE TO THE APPELLANT

REGARDING YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE TO THE APPELLANT

REGARDING YOUR RIGHT TO REQUEST

CONSEQUENTIAL DAMAGES

You may be entitled to be paid by the agency for your consequential

damages, including medical costs incurred, travel expenses, and any other

reasonable and foreseeable consequential damages. To be paid, you must meet

the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may

be found at 5 C.F.R. § § 1201.202, 1201.202 and 1201.204. If you believe you

meet these requirements, you must file a motion for consequential damages

WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You

must file your motion with the office that issued the initial decision on your

appeal.

NOTICE TO THE PARTIES

A copy of the decision will be referred to the Special Counsel “to

investigate and take appropriate action under [5 U.S.C.] section 1215,” based on

the determination that “there is reason to believe that a current employee may

have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or

section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note

that while any Special Counsel investigation related to this decision is pending,

“no disciplinary action shall be taken against any employee for any alleged

prohibited activity under investigation or for any related activity without the

approval of the Special Counsel.” 5 U.S.C. § 1214(f).

NOTICE OF APPEAL RIGHTS 11

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following

address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court‑appointed lawyer and

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

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

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 12 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the following

address:

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.