Nathaniel McClure v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NATHANIEL R. MCCLURE, DOCKET NUMBERS

Appellant, DE-4324-16-0220-I-1

DE-1221-16-0219-W-1

v.

DEPARTMENT OF VETERANS

AFFAIRS, DATE: February 9, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Shaun Yancey, Esquire, Atlanta, Georgia, for the appellant.

Michael E. Anfang, Esquire, Kansas City, Missouri, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

denied his request for corrective action in his joined Uniformed Services

Employment and Reemployment Rights Act of 1994 (USERRA) and

whistleblower reprisal individual right of action (IRA) appeals. Generally, we

1

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

2

grant petitions such as this one only in the following circumstances: the initial

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

on an erroneous interpretation of statute or regulation or the erroneous application

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

the course of the appeal or the initial decision were not consistent with required

procedures or involved an abuse of discretion, and the resulting error affected the

outcome of the case; or new and material evidence or legal argument is available

that, despite the petitioner’s due diligence, was not available when the record

closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.

§ 1201.115). After fully considering the filings in this appeal, we conclude that

the petitioner has not established any basis under section 1201.115 for granting

the petition for review. Therefore, we DENY the petition for review. Except as

expressly MODIFIED by this Final Order to supplement the administrative

judge’s analysis of the whistleblower reprisal claim, we AFFIRM the

initial decision.

BACKGROUND

¶2 The appellant, a veteran, had been employed by the agency at the Wichita,

Kansas, Veterans Affairs Medical Center (Wichita VAMC) since October 5, 2014,

when, on March 22, 2015, the agency converted him from a temporary

appointment to a career-conditional appointment, subject to the completion of a

1-year probationary period. Initial Appeal File (IAF), Tab 12 at 17, 23-24. 2

From March 24-26, 2015, the Wichita VAMC held a 3-day meeting, which the

appellant attended. IAF, Tab 1 at 12, Tab 12 at 7. During the meeting, the

appellant allegedly threw his pen down in frustration, refused to sit at a table with

his group, and stated that the lead facilitator “better not make [him] go full

soldier on her.” IAF, Tab 16 at 11-12. He also allegedly stated that he would

like to “blow [the facilitator’s] car about three feet off the ground.” Id.

2

All references to “IAF” are to the file in McClure v. Department of Veterans Affairs,

MSPB Docket No. DE-4324-16-0220-I-1.

3

Witnesses to the alleged conduct reported the incidents to agency officials, and,

on April 17, 2015, the agency terminated the appellant during his probationary

period. Id.; IAF, Tab 12 at 25-28; Tab 22, Hearing Compact Disc (HCD)

(testimony of T.H., L.W., F.V.).

¶3 The appellant appealed his probationary termination to the Board, and the

administrative judge issued an initial decision dismissing his appeal for lack of

jurisdiction. McClure v. Department of Veterans Affairs, MSPB Docket

No. DE-315H-15-0365-I-1, Initial Decision (July 6, 2015). On March 2, 2016,

after exhausting his Office of Special Counsel remedies for his allegation that his

termination was due to whistleblower reprisal, the appellant filed an appeal with

the Board’s Denver Field Office. IAF, Tab 1, Tab 11 at 67-68. The

administrative judge docketed separate appeals for his whi stleblower reprisal

claim, MSPB Docket No. DE-1221-16-0219-W-1, and his USERRA

discrimination claim, MSPB Docket No. DE-4324-16-0220-I-1. IAF, Tab 2 at 2.

He joined the appeals for processing and determined that the Board had

jurisdiction over both appeals. IAF, Tab 2 at 2-3, Tab 10 at 2-5.

¶4 Following a hearing, the administrative judge issued one initial decision for

both appeals finding that the appellant failed to carry his bu rden regarding the

USERRA claim and that, although he established a prima facie claim of

whistleblower retaliation, the agency met its burden of showing that it would

have taken the same action even absent whistleblowing. IAF, Tab 23, Initial

Decision (ID) at 5-16. Because the administrative judge determined that the

appellant’s USERRA and whistleblowing claims failed, he denied the appellant’s

request for corrective action. ID at 16.

¶5 The appellant has filed one petition for review, primarily arguing that the

initial decision contains erroneous findings of fact and that the administrative

judge erred in his analysis and conclusion that the agency proved by clear and

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

4

of the whistleblowing. Petition for Review (PFR) File , Tab 1 at 19-29. The

agency has opposed the appellant’s petition. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

We will not disturb the administrative judge’s finding that the appellant made a

prima facie showing of whistleblower retaliation.

¶6 To establish a prima facie case of whistleblower retaliation, the appellant

must prove by preponderant evidence that he made a protected disclosure or

engaged in protected activity that was a contributing factor in a personnel action

taken against him. 5 U.S.C. § 1221(e)(1); Lu v. Department of Homeland

Security, 122 M.S.P.R. 335, ¶ 7 (2015). On review, it is not disputed that the

appellant made such a showing. He alleged that he made several disclosures to

the Chief of Surgery and Orthopedic Services asserting that the agency

manipulated data regarding patient wait times, faced a critical shortage of staff in

the operating rooms, made minimal attempts to address necessary repairs, and

failed to honor contracts with outside vendors. IAF, Tab 1 at 10-11, Tab 6 at 5-7;

ID at 12. The administrative judge found that the appellant established by

preponderant evidence that he reasonably believed the disclosed information

constituted a violation of law, rule, or regulation, as well as a substantial and

specific danger to public health or safety. ID at 12-13. This finding has not been

challenged on review, and, after our review of the record, we find no reason to

disturb it.

¶7 The appellant also alleged that the disclosures were a contributing factor in

his termination. IAF, Tab 6 at 17-20. The administrative judge concluded that,

because one of the witnesses to the appellant’s misconduct also was present when

the appellant made his disclosures to the Chief of Surgery, and the deciding

official’s decision was based, in part, on that witness’s report regarding the

appellant’s misconduct, the deciding official had constructive knowledge of the

disclosures. ID at 13; see Nasuti v. Department of State, 120 M.S.P.R. 588, ¶ 7

(2014) (stating that an appellant can show that a protected disclosure was a

5

contributing factor by proving that the deciding official had constructive

knowledge of the disclosure, even if the official lacked actual knowledge , and

that one way of establishing constructive knowledge is by demonstrating that an

individual with actual knowledge of the disclosure influenced the official accused

of taking the retaliatory action). Thus, the administrative judge found that the

appellant established by preponderant evidence that his disclosures were a

contributing factor to the agency action and, consequently, that the appellant

established a prima facie case of whistleblower reprisal. ID at 14. These findings

have not been challenged on review, and, after our review of the recor d, we find

no reason to disturb them.

The administrative judge correctly found that the agency proved by clear and

convincing evidence that it would have taken the same action regardless of the

whistleblowing activity.

¶8 Once the appellant makes a prima facie showing of whistleblower

retaliation, the burden shifts to the agency to prove by clear and convincing

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

protected disclosure. Lu, 122 M.S.P.R. 335, ¶ 7. 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; it is a higher standard

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

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

5 C.F.R. § 1209.4(e). In determining whether an agency has shown by clear and

convincing evidence that it would have taken the same personnel action in the

absence of whistleblowing, the Board will consider all of the relevant factors,

including the following (Carr factors): the strength of the agency’s evidence in

support of its 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 ar e not

whistleblowers but who are otherwise similarly situated. Soto v. Department of

6

Veterans Affairs, 2022 MSPB 6, ¶ 11; see also Carr v. Social Security

Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). 3 The Board does not view

these 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. Lu, 122 M.S.P.R. 335,

¶ 7. The Board considers all the evidence, including evidence that detracts from

the conclusion that the agency met its burden. Soto, 2022 MSPB 6, ¶ 12; see also

Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).

¶9 After conducting a Carr factors analysis, the administrative judge

determined that the agency met its burden and denied the appellant’s request for

corrective action. ID at 14-16. The appellant’s primary contention on review is

that the administrative judge misapplied the Carr factors and that, therefore, the

agency did not meet its burden. PFR File, Tab 1 at 19-28.

Strength of the Agency’s Evidence in Support of Its Action

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

agency’s reasons for terminating the appellant were overwhelmingly strong . ID

at 15. After reviewing the record, we agree with this conclusion, but, due to the

administrative judge’s brief discussion of this factor, we supplement his analysis

here. The record shows that the agency submitted two reports from eyewitnesses

to the alleged conduct, IAF, Tab 16 at 11-14, and both witnesses testified at the

hearing regarding their observations, HCD (testimony of T.H. and L.W.). The

Wichita VAMC Director also testified regarding his involvement in processing

the eyewitness reports and meeting with the two eyewitnesses to discuss their

3

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

for the Federal Circuit on these types of whistleblower issues. However, pursuant to

the All Circuit Review Act, Pub. L. No. 115 195, 132 Stat. 1510, appellants may file

petitions for judicial review of Board decisions in whistleblower rep risal cases with any

circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B).

Therefore, we must consider these issues with the view that the appellant may seek

review of this decision before any appropriate court of appeal.

7

observations. HCD (testimony of F.V.). The Director also testified regarding his

communication with the deciding official wherein he relayed the information

from the two eyewitnesses. Id. Additionally, the deciding official testified

during the hearing that she relied on a report from one of the eyewitnesses and the

Director’s account of his discussion with both eyewitnesses in making her

decision. HCD (testimony of S.P.); ID at 4.

¶11 In his petition for review, the appellant argues that one of the eyewitnesses

dated her report of contact regarding his misconduct on March 27, 2015, but that

it was only submitted to agency officials on April 9, 2015, after she learned that

the appellant met with another agency director. PFR File, Tab 1 at 23-25. He

also claims that the eyewitness’s testimony was “clearly tainted” because she was

aware of the protected disclosures and that her testimony contained “many

inconsistencies and evidence of bad faith” because she provided an in correct date

in her report. Id. at 14, 21-22. The appellant further argues that the second

eyewitness report was provided only after the termination letter had been issued

and that neither the deciding official nor the Director witnessed the alleged

misconduct. Id. at 22-23. The appellant also challenges the administrative

judge’s credibility determinations—which found that agency witnesses provided

more credible testimony than did the appellant regarding the alleged

misconduct—and the administrative judge’s denial of one of his witness requests .

Id. at 23.

¶12 Regarding the appellant’s allegation that the first witness submitted her

report after she learned of the appellant’s meeting with an agency director, we

find that this allegation is not supported by the record. The email chain to which

the appellant refers does not make clear that the witness sent her report on

April 9, 2015. IAF, Tab 11 at 78-84. Given the redacted portions of the email,

the lack of reference to the appellant’s name, the lack of information provided by

the attachment graphic, and the lack of adequate context ual clarification, id.

at 84, we find that the email chain does not contain sufficient information to

8

establish that the witness only sent the report of the appellant’s misconduct after

learning that he met with an agency director.

¶13 Moreover, although the appellant is correct that the deciding official and the

Director were not present to personally witness the alleged misconduct, and it

appears that one of the eyewitness reports was submitted on the same day that the

appellant was terminated, IAF, Tab 16 at 14, we find the evidence supporting the

agency’s termination action to be strong. The record includes credible testimony 4

from at least four witnesses, two of whom directly observed the misconduct, and

detailed written reports from the two eyewitnesses. HCD (testimony of T.H.,

L.W., F.V., S.P.). Further, even though one of the eyewitnesses was present

when the appellant made the protected disclosures, this does not weaken the

agency’s evidence or “taint” the eyewitness’s testimony, as the administrative

judge already determined her testimony to be credible. ID at 10.

¶14 We observe that the appellant’s effort to present countervailing evidence

was partially hindered by the administrative judge’s denial of one of his witness

requests, but we find that the administrative judge did not err in that denial. The

appellant had proffered that the witness could testify “concerning his

interactions” with the deciding official regarding a police report about the

appellant. IAF, Tab 17 at 14; PFR File, Tab 1 at 25. An administrative judge has

wide discretion to control the proceedings, including the authority to exclude

testimony he believes would be irrelevant, immaterial, or unduly repetitious.

Parker v. Department of Veterans Affairs, 122 M.S.P.R. 353, ¶ 21 (2015);

5 C.F.R. § 1201.41(b)(8), (10). To obtain reversal of an initial decision on these

4

The Board defers to an administrative judge’s credibility determinations when they are

based, explicitly or implicitly, on observing the demeanor of the witnesses testifying at

a hearing and overturns such determinations only when it has “sufficiently sound”

reasons for doing so. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed.

Cir. 2002). Here, the administrative judge’s credibility determinations were based on

witness demeanor during the hearing. ID at 10-11. Because the appellant has not

provided a “sufficiently sound” reason to overturn these determinations, we will not

disturb them here.

9

grounds, the petitioning party must show on review that a relevant witness or

evidence, which could have affected the outcome, was disallowed. See Thomas v.

U.S. Postal Service, 116 M.S.P.R. 453, ¶ 4 (2011). The administrative judge

explained that he denied the appellant this witness because the proffer was

open-ended and because the witness was several steps removed from the original

evidence. IAF, Tab 18 at 4 n.3. On review, the appellant has not provided any

argument or evidence to dispute this explanation or to make the required showing

of how that witness would have affected the outcome. Thus, we find that the

appellant failed to show that the administrative judge abused his discretion in this

regard or erred in denying the witness request.

¶15 In its totality, and in consideration of the appellant’s countervailing

evidence, see Soto, 2022 MSPB 6,¶ 11, we find that the agency’s evidence

supporting the appellant’s termination is strong. Therefore, we find that this

factor cuts in favor of the agency.

Existence and Strength of Any Motive to Retaliate on the Part of the Agency

Officials Who Were Involved in the Decision

¶16 Regarding the second Carr factor, the administrative judge found that the

evidence of agency motive to retaliate was weak. ID at 15. In arriving at this

conclusion, he analyzed the evidence of potential retaliatory motive on the part of

the Chief of Surgery and the eyewitness to the alleged misconduct who also was

present for the appellant’s protected disclosures. Id. He found it “inherently

improbable” that several months after the appellant made the protected

disclosures, the Chief of Surgery, who agreed that the facilitator for the

March 2015 meeting did a poor job, “embarked on some kind of secret campaign

to get the appellant terminated.” Id. The administrative judge also found it more

improbable that the eyewitness, who had a prior friendship with the appellant,

would fabricate her account of the appellant’s misconduct in retaliation for his

whistleblowing activity. Id.

10

¶17 Although we agree with the administrative judge’s analysis of the second

Carr factor as it relates to the two individuals discussed above, we supplement

the initial decision to address more explicitly the potential retaliatory motives of

the deciding official and the Director to whom the eyewitnesses reported their

observations. We find that these individuals were the primary agency officials

who were involved in the decision to terminate the appellant and should have

been discussed in analyzing agency officials’ motive to retaliate. See Miller v.

Department of Justice, 842 F.3d 1252, 1261-62 (Fed. Cir. 2016). 5

¶18 On review, the appellant argues that the deciding official had a motive to

retaliate because “she did not want to jeopardize her job by defending [his]

position on the whistleblower reprisal.” PFR File, Tab 1 at 26. However,

although the deciding official may have had constructive knowledge of the

appellant’s disclosures for purposes of the contributing factor analysis, there is no

evidence to suggest that she had actual knowledge of the disclosures that could

have provided her with a motive to retaliate against the appellant. ID at 13; HCD

(testimony of S.P.); see Carr, 185 F.3d at 1324-26 (addressing the difference in

proving whether a protected disclosure was a contributing factor to the adverse

action and whether the agency met its burden of proving that it would have taken

the same action in the absence of the disclosure). Further, although the

eyewitness to the alleged misconduct who also was present for the appellant’s

protected disclosures submitted a report regarding the appellant’s misconduct,

there is no evidence that she otherwise had any influence over the deciding

official. See Carr, 185 F.3d at 1326. Indeed, the deciding official testified that

she did not work with the witness and could not recall whether she actually had

met the witness in person. HCD (testimony of S.P.). Regardless, even if we

concluded that the witness should be considered an agency official who had

influence over the deciding official, the administrative judge determined that the

5

There was no proposing official in this action, as the appellant was terminated during

his probationary period.

11

witness did not have a strong motive to retaliate, and we agree. ID at 15; see

supra ¶ 16.

¶19 The appellant also asserts on review that the Director and the Chief of

Surgery “had a clear desire to keep the patient wait-times out of the media given

the [a]gency’s current media attention to patient wait-times.” PFR File, Tab 1

at 26. The Director is presumably responsible for the agency’s overall

performance, and we agree that the substance of the appellant’s disclosures is of

the type that could potentially reflect badly on the agency’s performance and/or

reputation even if it did not reflect poorly on the Director directly. See Chavez v.

Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 33 (2013). 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. 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 di sclosures

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

12

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

however, there is no evidence that the Director was aware of the appellant’s

disclosures, ID at 13-14; HCD (testimony of S.P., F.V.), and we can find no

evidence suggesting that the Chief of Surgery was involved in the decision to

terminate the appellant. Accordingly, we agree with the administrative judge’s

ultimate finding that the evidence of agency motive to retaliate is weak.

Evidence That the Agency Takes Similar Actions Against Employees Who

Are Not Whistleblowers but Who Are Otherwise Similarly Situated

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

because the deciding official testified that she never encountered an employee

who engaged in the same misconduct as the appellant, this factor is neutral. ID

at 16. According to discovery documents submitted by the appellant, the agency

limited its response to a request for the identities of other employees who faced

similar charges exclusively to employees who have reported to the deciding

official. IAF, Tab 14 at 44. The agency concluded that there were no similar

employees. Id.

¶21 On review, the appellant asserts that comparators are not required to be

identical to the appellant and alleges that the agency manipulated its discovery

responses so that its denial of any similarly situated nonwhistleblower employees

was as specific as possible. 6 PFR File, Tab 1 at 28. Although we agree with the

appellant that “similarly situated” does not mean “identically situated,” see

Whitmore, 680 F.3d at 1373, the appellant has not provided the names of any

employees to whom he believes he was similarly situated, but who were rejected

by the agency as not similarly situated to him. Nevertheless, we agree with the

appellant that the agency took an exceedingly narrow approach to this factor. See

6

To the extent that the appellant’s contention on review amounts to a challenge to the

agency’s discovery responses, we find that he is precluded from doing so on review

because he failed to challenge this particular issue in his motion to compel below. IAF,

Tab 14 at 4-11; see Szejner v. Office of Personnel Management, 99 M.S.P.R. 275,¶ 5

(2005), aff’d, 167 F. App’x 217 (Fed. Cir. 2006).

13

Miller, 842 F.3d at 1262. When the agency fails to introduce relevant comparator

evidence, the third Carr factor is effectively removed from consideration,

although it cannot weigh in favor of the agency. Soto, 2022 MSPB 6, ¶ 18; see

also Rickel v. Department of the Navy, 31 F.4th 1358, 1365-66 (Fed. Cir. 2022)

(“The lack of evidence on the third Carr factor appears neutral[.]”) (internal

citation omitted). If the first two Carr factors are only supported by weak

evidence, the failure to present evidence of the third Carr factor may prevent the

agency from carrying its overall burden. Smith v. Department of the Army,

2022 MSPB 4, ¶ 30; see also Miller, 842 F.3d at 1262-63 (where an agency

presented little or weak evidence for the first two Carr factors, the lack of Carr

factor three evidence “if anything[] tends to cut slightly against the government”).

¶22 Nevertheless, this is not a case that hinges on the third Carr factor.

Weighing the Carr factors against one another and as a whole, we find that the

agency met its overall burden by clear and convincing evidence. In our

estimation, the strength of the agency’s evidence supporting the termination

action outweighs the slight evidence of retaliatory motive and the dearth of

comparator evidence. Moreover, the appellant has not otherwise provided a

reason to disturb the administrative judge’s finding that the agency proved by

clear and convincing evidence that it would have terminated him for his

misconduct, regardless of his whistleblowing disclosures.

We will not disturb the administrative judge’s findings of fact regarding the

appellant’s USERRA claim.

¶23 On review, the appellant appears to challenge a finding of material fact as it

relates to his USERRA claim. The appellant alleges that the administrative judge

erred in finding that the appellant provided an inaccurate reiteration of remarks

made by a witness at previous hearings and at a deposition. PFR File, Tab 1

at 28; ID at 6-8. The appellant generally points the Board to “the hearing

transcript,” which we understand to be a transcript from a prior Board action and

not a transcript for the instant action. PFR File, Tab 1 at 28. The administrative

14

judge outlined the relevant portion of the prior transcript and made his finding

based on that portion and other record evidence. ID at 7-8. The petition for

review fails to point to any specific portion of that transcript to refute the

administrative judge’s finding. As such, we find that the appellant has identified

no specific information in the record that demonstrates that the administrative

judge’s finding was erroneous, and we will not disturb that finding here. 5 C.F.R.

§ 1201.115(a)(2).

¶24 The appellant also claims on review that the administrative judge erred by

“apply[ing] the USERRA legal analysis to this matter as if it were a nonselection

complaint and not an appeal challenging his [termination].” PFR File, Tab 1

at 28. In particular, he asserts that the administrative judge gave undue weight to

the fact that the agency hired him knowing his military status and that such

knowledge does not preclude any future discrimination motivated by an

anti-military animus. Id. at 28-29.

¶25 We find the appellant’s claim to be meritless. In addition to agency

officials’ early knowledge of the appellant’s military status, the administrative

judge also considered testimony regarding specific statements made by one of the

witnesses who reported the appellant’s misconduct and generalized statements

attributed to the deciding official and other agency employees. ID at 6-11. He

determined that none of these statements demonstrated anti-military animus and

that the record as a whole failed to show that the appellant’s uniformed service

was a substantial or motivating factor in his termination. Id.; see Sheehan v.

Department of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). We find that the

administrative judge properly weighed the evidence and provided sound

reasoning for his findings. The appellant has not provided a basis to disturb those

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

(finding no reason to disturb the administrative judge’s findings when she

considered the evidence as a whole, drew appropriate inferences, and made

15

reasoned conclusions); Broughton v. Department of Health and Human Services,

33 M.S.P.R. 357, 359 (1987) (same).

¶26 Based on the foregoing, we affirm the initial decision as modified, still

denying the appellant’s requests for corrective action.

NOTICE OF APPEAL RIGHTS 7

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

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

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

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

should contact that forum for more information.

(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

7

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.

16

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

17

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

18

(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. 8 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

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

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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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.

8

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.

19

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.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

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

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.