Opinion

Justicia Rizzo v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Aug 5, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

stating that the Government’s failure to produce evidence on this factor may be at the agency’s peril considering the Government’s advantage in accessing this type of evidence

How later courts described this case

stating that the Government’s failure to produce evidence on this factor may be at the agency’s peril considering the Government’s advantage in accessing this type of evidence
stating that the risk associated with having no evidence in the record for a particular factor falls on the Government
holding that, to the extent evidence on Carr factor 3 exists, the agency is required to come forward with all reasonably pertinent evidence; the failure to do so may be at the agency’s peril

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JUSTICIA J. RIZZO, DOCKET NUMBER

Appellant, CH-0752-15-0104-I-2

DEPARTMENT OF VETERANS DATE: August 5, 2022

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Justicia J. Rizzo, Hendersonville, Tennessee, pro se.

Demetrious A. Harris, Esquire, Cincinnati, Ohio, for the agency.

Nicholas E. Kennedy, Esquire, Akron, Ohio, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

¶1 The agency has filed a petition for review and the appellant has filed a cross

petition for review of the initial decision, which mitigated the appellant’s removal

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

to a 3-day suspension. Generally, we grant petitions such as these 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 DENY the petition for review and

GRANT the cross petition for review. We MODIFY the initial decision to find

that the appellant proved her affirmative defense of reprisal for protected union

activity and to find that the administrative judge erred by imposing any penalty

for the appellant’s misconduct. Except as expressly modified, we AFFIRM the

initial decision.

BACKGROUND

¶2 The agency removed the appellant from her Administrative Support

Assistant position on the basis of the following charges: (1) inappropriate

conduct (4 specifications); (2) failure to cooperate with the employee threat

assessment team (6 specifications); (3) failure to follow instructions

(9 specifications); and (4) failure to follow “official time” procedures

(26 specifications). Rizzo v. Department of Veterans Affairs, MSPB Docket

No. CH-0752-15-0104-I-1, Initial Appeal File (IAF), Tab 1 at 12-23, Tab 6

at 42-51. 2 The appellant filed an appeal in which she claimed, inter alia, that the

agency committed due process violations and harmful error and that the removal

The agency withdrew 9 specifications of charge 4 at the prehearing conference,

leaving 17 specifications at issue in this appeal. IAF, Tab 58 at 1-2.

action constituted retaliation for protected whistleblowing, union activity, and

equal employment opportunity (EEO) activity. IAF, Tab 58 at 2.

¶3 After a hearing, the administrative judge issued a bench decision that

reversed the agency’s action, finding that the agency failed to prove charge 4 and

3 specifications of charge 1. Rizzo v. Department of Veterans Affairs, MSPB

Docket No. CH-0752-15-0104-I-2, Refiled Appeal File, Tab 15, Initial Decision

(I-2 ID) at 62-68, 70-72, 79-92. She found that the agency proved the third

specification of charge 1, and she sustained that charge. Id. at 68-70. She found

that the agency proved charges 2 and 3 based on the appellant’s admissions that

she engaged in the underlying misconduct, but that neither charge could be

sustained because the agency failed to prove that disciplining her for the conduct

described in charges 2 and 3 promoted the efficiency of the service. Id. at 72-79,

92-93. She further found that the appellant failed to prove her affirmative

defenses of retaliation for EEO and union activity, and she declined to address the

appellant’s harmful error and due process claims because neither of those claims

were related to the single sustained specification . Id. at 93-98. The

administrative judge found that the appellant proved a prima facie case of reprisal

for whistleblowing, id. at 57-70, and that the agency failed to show by clear and

convincing evidence that it would have removed the appellant absent her

whistleblowing, id. at 98-102. The administrative judge mitigated the removal

action to a 3-day suspension. Id. at 102.

¶4 The agency has filed a petition for review challenging the initial decision. 3

Petition for Review (PFR) File, Tab 1. The appellant has responded in opposition

The appellant filed a petition for enforcement, which was docketed by the Board’s

Central Regional Office. Rizzo v. Department of Veterans Affairs, MSPB Docket

No. CH-0752-15-0104-C-1, Compliance File, Tab 1. The administrative judge

dismissed the petition in an initial decision and forwarded the matter to the Office of

the Clerk of the Board. Rizzo v. Department of Veterans Affairs, MSPB Docket

No. CH-0752-15-0104-C-1, Compliance Initial Decision (July 7, 2016). In a

November 29, 2017 notice to the parties, the Office of the Clerk of the Board

incorporated the documents in MSPB Docket No. CH-0752-15-0104-C-1 into the

to the petition for review and has filed a cross petitioned for review. PFR File,

Tabs 6-7. The agency has not responded to the cross petition for review.

DISCUSSION OF ARGUMENTS ON REVIEW

Interim Relief

¶5 On review, the appellant asserts that the agency did not properly provide

her interim relief because, among other things, it has reassigned her and has

already proposed additional disciplinary action. PFR File, Tabs 2-3, Tab 8 at 14.

She further asserts that the agency’s actions constitute EEO and whistleblower

retaliation. PFR File, Tab 8 at 16-17. She also requests compensatory and

consequential damages. PFR File, Tab 5 at 6.

¶6 We consider the appellant’s arguments as a challenge to the agency’s

certification of compliance with the administrative judge’s interim relief order.

See Ayers v. Department of the Army, 123 M.S.P.R. 11, ¶ 8 (2015). The Board

may, at its discretion, dismiss the agency’s petition for review if it fails to

demonstrate compliance with the administrative judge’s interim relief order.

5 C.F.R. § 1201.116(e). However, because we find that the agency’ s petition

does not meet the criteria for review, this final order will render moot any dispute

regarding compliance with the interim relief order. See Ayers, 123 M.S.P.R. 11,

¶ 8. Thus, we find it unnecessary to issue an order regarding interim rel ief. See

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

appellant believes the agency is in noncompliance with the Board’s final order,

she may file a petition for enforcement in accordance with the instructions

provided below. To the extent that she wishes to challenge any subsequent

agency actions, she is free to do so.

petition for review record in MSPB Docket No. CH-0752-15-0104-I-2 for consideration

by the Board. Petition for Review (PFR) File, Tab 12.

The administrative judge properly sustained charge 1.

¶7 As noted above, the administrative judge sustained specification 3 of

charge 1, Inappropriate Conduct. I-2 ID at 68-70. Under this specification, the

agency alleged that the appellant picked up documents belonging to the Nurse

Manager from a shared printer and, instead of returning them to the Nurse

Manager, tore them in half and threw them in the garbage. IAF, Tab 6 at 43. The

appellant asserts in her cross petition for review that she had no malicious intent

and that she was unaware that the Nurse Manager took issue with her actions until

she was disciplined for the incident. PFR File, Tab 7 at 22. A charge of

inappropriate conduct does not generally require an element of intent. See

Crouse v. Department of the Treasury, 75 M.S.P.R. 57, 63 (1997). An agency

may incorporate an element of intent by claiming that the employee engaged in

intentional misconduct or that the conduct was improper because of the

employee’s intent. Id. Here, however, the agency did not incorporate an element

of intent into its specification and the administrative judge found, based on her

assessment of the Nurse Manager’s demeanor when testifying at the hearing, that

the Nurse Manager’s version of the incident was credible. Haebe v. Department

of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (holding that the Board must

defer to an administrative judge’s credibility determinations when they are based,

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

hearing; the Board may overturn such determinations only when it has

“sufficiently sound” reasons for doing so). The appellant has not denied that she

committed the acts on which the specification is based, and she has not proffered

sufficiently sound reasons for setting aside the administrative judge’s credibility

determinations. Moreover, her arguments on review that this was an isolated

incident, she was not on notice that her actions were wrongful, and she had no

prior disciplinary record, PFR File, Tab 7 at 22, are not reasons why the charge

should not be sustained. We find, therefore, that the administrative judge

properly sustained specification 3 of charge 1.

¶8 The appellant also contends on review that the administrative judge erred by

sustaining charges 2 and 3 because the charges did not concern “actionable

misconduct.” PFR File, Tab 7 at 23-24. The appellant misunderstands the initial

decision. Although the administrative judge found, based on the appellant’s

admissions, that the appellant engaged in the charged conduct, she further found

that disciplining the appellant for the incidents in charges 2 and 3 did not promote

the efficiency of the service. I-2 ID at 72-80, 92-93. The administrative judge’s

finding is the equivalent of a finding that charges 2 and 3 are not “actionable

misconduct.” Cf. Byars v. Department of the Army, 9 M.S.P.R. 225, 229 (1981)

(finding that, although the agency proved the charge, the action must be reversed

because the agency did not prove a nexus between the appellant’s conduct and the

efficiency of the service).

The appellant failed to prove her affirmative defense of retaliation for

EEO activity.

¶9 The appellant contends on review that the administrative judge erred by

finding that she failed to prove her affirmative defense of retaliation for EEO

activity. 4 PFR File, Tab 7 at 14. When an appellant raises an affirmative defense

of discrimination or retaliation under 42 U.S.C. § 2000e-16, the Board first will

inquire whether the appellant has shown by preponderant evidence that the

The appellant also contends that the administrative judge erred by failing to find that

the agency violated her due process rights and committed harmful error. PFR File,

Tab 7 at 12, 15. One of the appellant’s claims relates to an alleged ex parte contact

between the deciding official and a witness pertaining to charge 1, specification 4. Id.

at 15; Hearing Transcript, Oct. 26, 2015, at 103 (testimony of the deciding official).

Even assuming that the agency violated the appellant’s due process rights or committed

harmful error with respect to that specification, because the administrative judge did not

sustain that portion of the charge, any alleged error on the administrative judge’s part

provides no basis for reversal of the initial decision. Panter v. Department of the Air

Force, 22 M.S.P.R. 281, 282 (1984) (stating that an adjudicatory error that is not

prejudicial to a party’s substantive rights provides no basis for reversal of an initial

decision). The appellant’s other due process/harmful error argument relates to the

agency’s penalty determination, PFR File, Tab 7 at 12, but, because we find for the

reasons discussed below that no discipline is appropriate in this case, we need not

discuss this argument.

prohibited consideration was a motivating factor in the contested personnel

action. Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647, ¶ 28

(2016). Here, the administrative judge found that the deciding official was aware

of the appellant’s prior EEO activity. I-2 ID at 96. She further found, however,

based on her observation of the deciding official’s demeanor while testifying at

the hearing, that the appellant’s prior EEO activity was not a motivating factor in

the decision to take action against her. Id. at 96-97. Although the appellant

asserts that the administrative judge’s findings on this issue are incorrect, she

has not articulated any specific error in them, and she has not identified any

sufficiently sound reasons to set aside the admin istrative judge’s credibility

determinations. Haebe, 288 F.3d at 1301. We find, therefore, that the

administrative judge correctly found that the appellant failed to prove her

affirmative defense of retaliation for EEO activity. 5

The appellant’s disclosure was a contributing factor in her removal.

¶10 In an adverse action appeal such as this one, an appellant’s claim of

whistleblower reprisal is treated as an affirmative defense. Ayers, 123 M.S.P.R.

11, ¶ 12. In such an appeal, once the agency proves its initial case by

preponderant evidence, the appellant must show by preponderant evidence that

she made a protected disclosure under 5 U.S.C. § 2302(b)(8) and that the

disclosure was a contributing factor in the agency’s personnel action. Id. An

appellant can prove the contributing factor element through evidence that the

official taking the personnel action knew of the whistleblowing 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. Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 21 (2016).

Because we discern no error with the administrative judge’s motivating factor analysis

or conclusion regarding this claim, we do not reach the question of whether retaliation

was a “but for” cause of the removal action. See Babb v. Wilkie, 589 U.S. ___,

140 S. Ct. 1168, 1177-78 (2020).

¶11 On review, the agency asserts that the administrative judge erred in finding

that the appellant’s protected disclosure was a contributing factor in her removal

because the deciding official did not know about the disclosure. PFR File, Tab 1

at 10; Hearing Transcript (HT), Oct. 26, 2015, at 52 (testimony of the deciding

official). The administrative judge, in her bench decision, found that the deciding

official knew about the appellant’s disclosure because, although she testified that

she was not aware of the appellant’s whistleblower complaint and did not

consider her to be a whistleblower, she testified that she was aware of “issues” at

the agency facility and decided to move the appellant to a different part of the

agency in order to “salvage her employment.” 6 I-2 ID at 60; HT, Oct. 26, 2015,

at 43 (testimony of the deciding official); see 5 U.S.C. § 1221(e)(1)(A). We also

considered the deciding official’s testimony on cross examination when

questioned about her awareness of the events surrounding the disclosure that

there was “a whole series of issues” surrounding the appellant and that she “got

pulled into” these issues. HT, Oct. 26, 2015, at 79 (testimony of the

decision official).

¶12 The administrative judge implicitly based her conclusion regarding the

knowledge element on the deciding official’s demeanor at the hearing when she

found her testimony that she did not know about the disclosure was less

persuasive than the testimony that she knew about broader issues in the agency.

I-2 ID at 60. The Board may overturn such credibility determinations only when

it has “sufficiently sound” reasons for doing so. Haebe, 288 F.3d at 1301. The

We agree that the protected disclosure element is satisfied because the appellant

reasonably believed that there was a violation of agency rules and policies against

patient abuse when she reported to the nursing home administrator and patient advocate

that a patient had been experiencing symptoms that called for immediate attention and

that a charge nurse did not properly respond to her when she reported as such. I-2 ID

at 57-59; IAF, Tab 62 at 26-29, 111-13; see 5 U.S.C. § 2302(b)(8); Chavez v.

Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 20 (2013) (finding that the

appellant made a protected disclosure that medical carts were not cleaned and restocked

because she reasonably believed this evidenced a substantial and specific danger to

public health or safety).

agency has failed to present such reasons here. Accordi ngly, we find that the

agency has not provided a reason to disturb the initial decision’s finding that the

deciding official knew about the disclosure. Further , the removal occurred within

1 year of the appellant’s disclosure. IAF, Tab 1, Tab 62 at 111-13. Thus, we

agree that, under the statutory knowledge-timing test, it was a contributing factor

in the personnel action. I-2 ID at 60; see 5 U.S.C. § 1221(e)(1)(B); Schnell v.

Department of the Army, 114 M.S.P.R. 83, ¶ 22 (2010).

The agency did not prove by clear and convincing evidence that it would have

removed the appellant absent her protected disclosure.

¶13 The agency challenges the initial decision, stating that it proved by clear

and convincing evidence that it would have removed the appellant absent her

protected disclosure because there was no strong motive to retaliate against the

appellant and because an agency human resources specialist testified regarding

actions that the agency took against similar employees who were not

whistleblowers. PFR File, Tab 1 at 14-15. When, as here, the appellant

establishes a prima facie case of whistleblower reprisal, the burden of persuasion

shifts to the agency to show by clear and convincing evidence that it would have

taken the same personnel action absent any protected activity. Campbell v.

Department of the Army, 123 M.S.P.R. 674, ¶ 12 (2016). In determining whether

the agency has met this burden, the Board will consider the following factors:

(1) the strength of the agency’s evidence in support of its action; (2) the existence

and strength of any motive to retaliate on the part of the agency o fficials involved

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

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

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

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

agency must prove by clear and convincing evidence, but w ill weigh the factors

together to determine whether the evidence is clear and convincing as a whole.

Mithen v. Department of Veterans Affairs, 122 M.S.P.R. 489, ¶ 36 (2015), aff’d,

652 F. App’x 971 (Fed. Cir. 2016). The U.S. Court of Appeals for the Federal

Circuit has held that the agency must satisfy a “high burden of proof” in cases

where an employee has already shown that whistleblowing was a contributing

factor to the personnel action. Miller v. Department of Justice, 842 F.3d 1252,

1263 (Fed. Cir. 2016).

¶14 Here, we find that the agency’s evidence in support of the first Carr factor,

regarding the strength of the evidence in support of the agency’s action, is weak.

The administrative judge concluded that discipline was only warranted for one

specification of charge 1 involving the appellant’s inappropriate conduct when

she threw away the documents of a coworker after she retrieved them from the

printer. I-2 ID at 93. The agency imposed the appellant’s removal on the basis of

the following charges: (1) inappropriate conduct including 3 underlying

specifications involving 3 personal issues and 1 underlying specification related

to an incident of throwing away the documents of a coworker from the printer

(2) failure to cooperate with the employee threat assessment team including

6 underlying specifications when the appellant failed to attend meetings with the

team; (3) failure to follow instructions including 9 underlying specifications when

the appellant sent out emails during the period when she was on administrative

leave but did not “cc” (share) the email with the chair of the threat assessment

team, as she had been instructed to do; and (4) failure to follow “official time”

procedures, including 26 underlying specifications (only 17 of which the deciding

official sustained) when the appellant sent out union emails when she was not on

official time and did not request official time for the time she had used to

compose the emails. IAF, Tab 1, Tab 6 at 42-51. The administrative judge found

that the only conduct constituting cause for discipline was charge 1 based upon

the underlying specification involving the appellant’s disposal of her coworker’s

documents from the printer. I-2 ID at 61-93.

¶15 The administrative judge did not sustain the first specification of charge 1

in part because, based upon their demeanor, she credited the testimony of the

appellant and another witness who stated that the appellant did not engage in a

confrontation. I-2 ID at 66. She also did not sustain the second specification of

charge 1 because of the straightforward and consistent demeanor of the appellant

and another witness when they testified that the appellant did not follow another

employee down the hallway. I-2 ID at 68. Next, the administrative judge did not

sustain the fourth specification of charge 1 because she found that the appellant’s

door slamming and possible staring did not constitute the type of threatening

behavior that would support a charge of inappropriate conduct. I -2 ID at 71-72.

She also did not sustain the fourth charge regarding the appellant’s failure to

follow proper time procedures when sending union emails because of the

appellant’s clear and straightforward testimony that was consistent with the

record evidence that she was not aware of an official time policy regarding

emails. I-2 ID at 80-92. The administrative judge was in the best position to

determine whether these witnesses credibly testified about the personal

interactions described in charge 1. We also have found nothing in the record, and

the agency has not presented anything, to contradict the appellant’s testimony,

which the administrative judge found to be credible, that she was unaware that

she could not send the emails. I-2 ID at 80-92. Because the administrative

judge’s findings are based implicitly and explicitly on the demeanor of the

witnesses, and there is otherwise no basis for disturbing the administrative

judge’s findings, we agree with her decision not to sustain the three specifications

underlying charge 1 and charge 4. See Haebe, 288 F.3d at 1301.

¶16 The administrative judge further found, as noted above, that the agency

failed to show a nexus between charge 2 and charge 3 and the efficiency of the

service and that it thus was not appropriate to impose discipline for the charges.

I-2 ID at 92-93. The nexus requirement, for purposes of whether an agency has

shown that its action promotes the efficiency of the service, means that there must

be a clear and direct relationship between the articulated grounds for an adverse

action and either the employee’s ability to accomplish her duties satisfactorily or

some other legitimate Government interest. Valenzuela v. Department of the

Army, 107 M.S.P.R. 549, ¶ 14 (2007). The administrative judge found that the

charges involved the appellant’s failure to meet with the threat assessment team

and to “cc” its chair on emails that she had sent from her grandmother’s computer

while on administrative leave. I-2 ID at 92-93. She credited the unrebutted

testimony of the chair of the threat assessment team that meeting with the team

was purely voluntary and that the agency had no authority to require employees to

“cc” him on emails or to subject them to discipline for not doing s o. Id. The

agency has not challenged this testimony. Further, we find no reason to disturb

the administrative judge’s decision to credit the testimony. See Haebe, 288 F.3d

at 1301. Thus, we agree that the agency has failed to show that discipline for

these charges promotes the efficiency of the service.

¶17 Accordingly, we agree that charge 1, which the administrative judge

sustained based upon one underlying specification related to the appellant’s

discarding a colleague’s documents from the printer, is the only charge for which

discipline is warranted. Thus, we find that, under the first Carr factor regarding

the evidence in support of the agency’s action, the agency’s failure to prove a

majority of the charges and specifications strongly weighs agains t a finding that it

would otherwise have removed the appellant absent her protected disclosure.

Ayers, 123 M.S.P.R. 11, ¶ 28 (finding that, regarding the first Carr factor, the

agency’s failure to prove a majority of its specifications was a sign of overreach).

¶18 Next, we find that the agency’s proffer in support of the third Carr factor,

which relates to similarly situated employees, was incomplete. An agency should

liberally produce evidence of similarly situated employees that are not

whistleblowers to help it carry its overall burden to prove by clear and convincing

evidence that it would have taken the action against the whistleblower regardless

of the whistleblowing and that the absence of any evidence concerning this Carr

factor may well cause the agency to fail to prove its overall case. Whitmore v.

Department of Labor, 680 F.3d 1353, 1374-75 (Fed. Cir. 2012).

¶19 An agency employee labor relations specialist testified about similarly

situated employees. HT, Oct. 27, 2015, at 261-63 (testimony of the employee

labor relations specialist). Specifically, he testified that the agency proposed

another employee’s removal for inappropriate conduct, but because the employee

was remorseful, the deciding official, who was al so the deciding official in this

appeal, negotiated a last chance agreement with that employee. Id. at 261-63. He

further testified that other employees have received letters of proposed removal

for charges of inappropriate conduct and that he was the em ployee labor relations

specialist in those situations. Id. at 263. This testimony, which includes one

individual whose removal was not actually imposed and vague information about

other individuals, does not particularly support the agency’s argument that it took

similar actions against nonwhistleblowers. Although the agency proffered some

evidence of alleged comparators who engaged in “inappropriate conduct,” it

failed fully to account for differences in kinds and degrees of conduct and it

failed to provide complete information on the outcome of each of the

comparators’ cases. Having submitted evidence concerning how it treated other

employees, the agency took a risk in failing to fully explain the context of that

evidence. Cf. Siler v. Environmental Protection Agency, 908 F.3d 1291, 1299

(Fed. Cir. 2018) (stating that the risk associated with having no evidence in the

record for a particular factor falls on the Government); Miller, 842 F.3d at 1262

(stating that the Government’s failure to produce evidence on this factor may be

at the agency’s peril considering the Government’s advantage in accessing this

type of evidence); Whitmore, 680 F.3d at 1374 (holding that, to the extent

evidence on Carr factor 3 exists, the agency is required to come forward with all

reasonably pertinent evidence; the failure to do so may be at the agency’s peril).

We find, therefore, that Carr factor 3 weighs against the agency.

¶20 With our analysis of the first and third Carr factors in mind, we have

considered the agency’s assertion regarding the second Carr factor that the

deciding official did not have a strong motive to retaliate. PFR File, Tab 1 at 14.

However, based upon our analysis of the other Carr factors, we find that the

agency has failed to meet its high burden of proving by clear and convincing

evidence that it would have removed the appellant absent her protected

disclosure. Miller, 842 F.3d at 1263 (finding that the agency did not prove by

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

appellant’s protected disclosure when, although it produced some evidence

regarding a lack of motive to retaliate, the strength in su pport of its action was

weak and it did not present evidence regarding similarly

situated nonwhistleblowers).

The agency did not prove by clear and convincing evidence that it would have

removed the appellant absent her protected union activity.

¶21 The appellant also asserts in her cross petition for review that the

administrative judge erred by finding that she failed to prove her affirmative

defense of reprisal for protected union activity. PFR File, Tab 7 at 14. We agree.

¶22 Following the enactment of the Whistleblower Protection Enhancement Act

of 2012, Pub. L. No. 112-199, 126 Stat. 1465, an appellant may file an individual

right of action appeal with the Board concerning alleged reprisal not only for

making protected disclosures under 5 U.S.C. § 2302(b)(8) but also for engaging

in protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), and (D).

Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 12 (2015). The

appellant’s claim of reprisal for engaging in protected union activity is prot ected

under 5 U.S.C. § 2302(b)(9)(B). Id. Therefore, the administrative judge was

required to afford the appellant notice that, to prevail in her claim of reprisal for

union activity, she must show that she testified or assisted another employee in

any appeal, complaint, or grievance right granted by any law, rule, or regulation,

and that such activity was a contributing factor in the agency’s decision to take a

personnel action against her. Id., ¶ 13. If she makes such a showing, the agency

must show by clear and convincing evidence that it would have taken the same

personnel action absent any protected activity. Id., ¶ 14. The record reflects that

the administrative judge did not afford the appellant notice of the correct legal

standard for proving her claim of reprisal for union activity. IAF, Tab 53 at 2-3.

¶23 Under the circumstances, it would generally be appropriate to remand the

appeal to afford the appellant the opportunity to present e vidence and argument

after receiving proper notice of her burden of proof. Alarid, 122 M.S.P.R. 600,

¶ 17. Here, however, we find that the record is fully developed and the

appellant’s affirmative defense can be resolved without a remand.

¶24 First, it is undisputed that the appellant engaged in protected union activity

and that the relevant agency managers were aware of that activi ty. The appellant

was, or recently had been, a union steward, and some of the misconduct for which

she was charged was alleged to have occurred while she was acting in furtherance

of her union rights. IAF, Tab 6 at 42-46; HT, Oct. 26, 2015, at 50 (testimony of

the deciding official). Thus, we find that the appellant has satisfied the

knowledge/timing test and has proven that her protected activity was a

contributing factor in the agency’s decision to take a personnel action against her.

The burden of persuasion now shifts to the agency to show by clear and

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

appellant’s protected union activity.

¶25 For the reasons set forth above, the evidence in support of the agency’s

action is exceedingly weak. The administrative judge properly found that only

1 specification of the 36 sustained by the deciding official warranted any

discipline, and that single sustained specification was for the minor offense of

taking someone else’s document from a shared printer. The administrative judge

did not sustain the failure to follow procedures for official time charge because

the agency did not prove that it put the appellant on notice of the procedures she

purportedly failed to follow. I-2 ID at 80-92. The administrative judge found

that the agency failed to show that disciplining the appellant for th e second and

third charges promoted the efficiency of the service. Id. at 92-93. Carr factor 1

weighs strongly in favor of the appellant.

¶26 As to Carr factor 2, the administrative judge found that the deciding official

was not motivated by anti-union animus. I-2 ID at 97. Although she did not

conduct a full analysis because she did not apply the correct legal standard, she

grounded her finding in her assessment of the deciding official’s credibility, and

we must defer to that finding. Haebe, 288 F.3d at 1301.

¶27 Similarly, as noted above, the agency made only a limited proffer

concerning other employees who committed similar misconduct and none of them

were removed. I-2 ID at 102. However, presumably because the parties were not

on notice of the correct legal standard, the agency failed to present any evidence

as to whether the other employees had engaged in union activity.

¶28 Even assuming, however, that Carr factors 2 and 3 weigh in favor of the

agency, and under the unique circumstances of this case, we find that Carr

factor 1 heavily outweighs the evidence relating to Carr factors 2 and 3. We find,

therefore, that the agency has failed to show by clear and convincing evidence

that it would have taken the same action against the appellant absent her protected

union activity.

¶29 The appellant has shown that the agency’s decision to remove her was based

on a prohibited personnel practice described under 5 U.S.C. § 2302(b)(8) &

(b)(9)(B). Therefore, under 5 U.S.C. § 7701(c)(2)(B), the action may not be

sustained, and the administrative judge erred by mitigating the penalty rather than

reversing the removal action outright. 7 We have considered the appellant’s

arguments on review that the administrative judge interfered with her questioning

of certain witnesses and find that the appellant has not shown that the

administrative judge abused her discretion in this regard. PFR File, Tab 7

at 12-13; see 5 C.F.R. § 1201.41(b).

Because we find that no penalty should be imposed for the appellant’s misconduct, it

is not necessary to consider the appellant’s arguments that the penalty of a 3 -day

suspension is excessive and that the deciding official violated her due process rights

regarding her penalty analysis. PFR File, Tab 7 at 12-13, 22.

¶30 Finally, the appellant has filed a motion for protective order in which she

requests an order prohibiting the agency from accessing her agency-administered

medical records. PFR File, Tab 14 at 3. The appellant alleges that the agency has

improperly accessed the medical records of its employees in other circumstances,

but she has not alleged that it has actually accessed her records without

authorization, and she asserts that she does not receive medical care from the

agency. Id. The appellant’s motion does not meet the requirements of 5 C.F.R.

§ 1201.55(d) because it does not contain a statement of reasons explaining why a

protective order is necessary to protect her from harassment and it does not

appear that the appellant filed her motion “as early in the proceeding as

practicable.” Therefore, we deny the motion.

¶31 Accordingly, we reverse the appellant’s removal action.

ORDER

¶32 We ORDER the agency to cancel the removal action effective October 24,

2014. 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.

¶33 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.

¶34 We further ORDER the agency to tell the appellant promp tly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken 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).

¶35 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 on 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).

¶36 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.

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 AND/OR

COMPENSATORY 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. §§ 1201.201, 1201.202 and 1201.204.

In addition, the Whistleblower Protection Enhancement Act of 2012

authorized the award of compensatory damages including interest, reasonable

expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), which you may be entitled

to receive.

If you believe you are entitled to these damages, you must file a motion for

consequential damages and/or compensatory 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 emplo yee 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 8

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

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

§ 7703(b)(1)(A).

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.

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. 9 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