Opinion

Melvin Shibuya v. Department of Agriculture

Court: Merit Systems Protection Board
Filed: Mar 31, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.7%

finding that the appellant’s 11 criticisms cast the agency and, by implication, all of the responsible officials, in a highly critical light by calling into question the propriety and honesty of their official conduct

How later courts described this case

finding that the appellant’s 11 criticisms cast the agency and, by implication, all of the responsible officials, in a highly critical light by calling into question the propriety and honesty of their official conduct
explaining that those responsible for the agency’s overall performance may well be motivated to retaliate, even if they are not directly implicated by the disclosures, as the criticism reflects on them in their capacities as managers and employees

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MELVIN Y. SHIBUYA, DOCKET NUMBERS

Appellant, DE-1221-09-0295-B-1

DE-1221-10-0390-B-1

v. DE-0752-11-0097-B-1

DEPARTMENT OF AGRICULTURE,

Agency.

DATE: March 31, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL 1

David S. Handsher, Esquire, San Francisco, California, for the appellant.

Deryn Sumner, Esquire, and Gary M. Gilbert, Esquire, Silver Spring,

Maryland, for the agency.

Inga Bumbary-Langston, Esquire, Washington, D.C., for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

FINAL ORDER

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

which reversed the appellant’s demotion and granted his request for corrective

action in his individual right of action (IRA) appeals . For the reasons discussed

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

below, we DENY the agency’s petition for review. Except as expressly

MODIFIED by this Final Order to find that the Chief Financial Officer (CFO)

was not similarly situated to the appellant, we AFFIRM the remand initial

decision in these joined appeals.

BACKGROUND

¶2 The instant petition for review is before us following a Board‑ordered

remand of the appellant’s joined appeals. See Shibuya v. Department of

Agriculture, 119 M.S.P.R. 537, ¶ 38 (2013). The following essential facts are

undisputed.

¶3 The appellant was employed as a GS‑14 Branch Chief of Employee

Relations at the U.S. Forest Service, a subpart of the U.S. Department of

Agriculture. Id., ¶ 4. In April 2008, the appellant disclosed to the Office of

Special Counsel (OSC) that the CFO of the Forest Service misused, and was

delinquent in paying, his Government credit card and that the agency had failed to

take any action on the matter. 2 Id., ¶ 2. In November 2008, the appellant told an

agency manager about his disclosure to OSC regarding the CFO’s misconduct.

Id., ¶ 24. In December 2008, the agency began investigating the appellant for

alleged misconduct concerning his advice to agency officials to destroy emails

that he believed were potentially discoverable in future litigation . Id., ¶ 2. While

the investigation was pending, the agency relocated his office and changed his

duties. Id., ¶¶ 2, 10. As a result of these actions, the appellant filed his first IRA

Ultimately, OSC referred the appellant’s allegations about the CFO to the Office of

the Secretary of Agriculture, which referred the allegations to the Office of the

Inspector General (OIG). Shibuya v. Department of Agriculture, MSPB Docket

No. DE-1221-09-0295-W-2, Appeal File (0295 W-2 AF), Tab 18, Subtab B at 6. On

August 12, 2009, OIG issued a report of investigation that substantiated the appellant’s

allegations and criticized the agency and the Forest Service for the delay in removing

the CFO and for awarding him a $13,000 performance award in December 2008 and a

salary increase in 2009, when they knew that the Office of Human Capital Management

was proposing the CFO’s removal. 0295 W-2 AF, Tab 18, Subtab B.

appeal alleging that the agency removed his supervisory duties, investigated him

for misconduct, and moved him to a different office in retaliation for his

disclosure to OSC regarding the CFO’s misconduct. Shibuya v. Department of

Agriculture, MSPB Docket No. DE-1221-09-0295-W-1, Initial Appeal File (0295

IAF), Tab 1; Shibuya v. Department of Agriculture, MSPB Docket No. DE-1221-

09-0295-W-2, Appeal File (0295 W-2 AF), Tab 18, Subtab B at 40, 75. 3

¶4 On December 16, 2009, as a result of the aforementioned investigation, the

agency proposed to demote the appellant from a GS‑14 Branch Chief of

Employee Relations to a GS‑13 Human Resource Liaison on the basis of the

following two charges: (1) poor judgment—soliciting the unauthorized

destruction of Government records when, in emails dated June 29, August 12, and

September 26, 2007, and September 24, 2008, the appellant advised employees to

destroy emails that he believed were discoverable in future third -party

proceedings; and (2) poor judgment—conduct unbecoming a Federal employee,

alleging that he engaged an outside attorney contractor to “launder” case analyses

drafted by agency employees to create the appearance that the analyses were

subject to attorney-client or work-product privileges, thereby protecting the

analyses from disclosure in third-party proceedings. Shibuya, 119 M.S.P.R. 537,

¶ 4. The appellant then filed a second IRA appeal alleging that the agency

proposed to demote him in retaliation for his disclosure regarding the CFO.

Shibuya v. Department of Agriculture, MSPB Docket No. DE-1221-10-0390-W-1,

Initial Appeal File, Tab 1.

¶5 On May 11, 2010, the agency informed the appellant that his demotion

would become effective on June 6, 2010. Shibuya, 119 M.S.P.R. 537, ¶ 5. He

appealed the demotion to the Board under chapter 75, raising an affirmative

At the appellant’s request, the administrative judge dismissed the appellant’s first IRA

appeal without prejudice pending completion of an agency investigation. 0295 IAF,

Tab 13. The appeal was refiled in May 2010. 0295 W -2 AF, Tab 1.

defense of whistleblower reprisal. Shibuya v. Department of Agriculture, MSPB

Docket No. DE‑0752‑11‑0097‑I‑1, Initial Appeal File, Tab 1.

¶6 The administrative judge joined the chapter 75 appeal with the two IRA

appeals. 0295 W-2 AF, Tab 11. After holding the requested hearing, she issued

an initial decision reversing the demotion on the ground that the agency failed to

prove either charge, and granting corrective action in the IRA appeals. 0295 W-2

AF, Tab 37, Initial Decision (ID). The agency filed a petition for review of the

initial decision. Shibuya v. Department of Agriculture, MSPB Docket

No. DE-1221-09-0295-W-2, Petition for Review File, Tab 1.

¶7 In an Opinion and Order, the Board vacated the initial decision and

remanded the matter for further adjudication. Shibuya, 119 M.S.P.R. 537, ¶ 38.

Regarding the chapter 75 appeal, the Board found that the administrative judge

erred in finding that the agency failed to prove the charges underlying the

demotion and instead sustained both charges. Id., ¶¶ 10-17. The Board thus

ordered the administrative judge to determine in the first instance on remand

whether the agency established a nexus between the charges and the efficiency of

the service and the reasonableness of the penalty. Id., ¶¶ 18, 38.

¶8 As to the appellant’s whistleblower reprisal affirmative defense, the Board

affirmed the administrative judge’s findings that the appellant made a protected

disclosure when he informed OSC of the CFO’s Government credit card abuse

and that the protected disclosure was a contributing factor in the agency’s

decision to demote him. Id., ¶¶ 21, 23‑24. The Board further affirmed the

administrative judge’s findings in the joined IRA appeals that the appellant’s

protected disclosure was a contributing factor in the agency’s decision to

significantly change his duties, to relocate his office, and to propose his

demotion. 4 Id., ¶¶ 27, 30. Because the administrative judge originally found that

The Board found that it was appropriate to consider the evidence regarding the

agency’s investigation into the appellant’s alleged misconduct in analyzing whether the

agency demoted him in reprisal for his whistleblowing, but did not affirm the

the agency’s failure to prove the charges underlying the demotion undermined the

strength of its evidence in support of its actions, the Board ordered the

administrative judge to reweigh the evidence in light of the sustained charges and

to determine whether the agency established by clear and convincing evidence 5

that it would have taken the same actions in the absence of the appellant’s

protected disclosure. Id., ¶¶ 36-38.

¶9 On remand, the administrative judge found that the agency established a

nexus between the appellant’s misconduct and the efficiency of the service and

that the penalty of a demotion was within the tolerable limits of reasonableness

for the sustained charges. Shibuya v. Department of Agriculture, MSPB Docket

No. DE-1221-09-0295-B-1, Remand File, Tab 18, Remand Initial Decision (RID)

at 5. However, in considering the appellant’s affirmative defense, she concluded

that the agency failed to establish by clear and convincing evidence that it wo uld

have demoted the appellant in the absence of his protected disclosure and,

therefore, reversed the demotion. RID at 9. Concerning the appellant’s IRA

appeals, the administrative judge found that the agency failed to show by clear

and convincing evidence that it would have removed the appellant’s supervisory

duties, investigated him, relocated his office, and proposed his demotion in the

absence of his protected disclosure. Id. Therefore, the administrative judge

granted his request for corrective action. RID at 10.

¶10 The agency has filed a petition for review of the remand initial decision,

and the appellant has responded in opposition to the agency’s petition for review.

Shibuya v. Department of Agriculture, MSPB Docket No. DE-1221-09-0295-B-1,

Remand Petition for Review (RPFR) File, Tabs 1, 3.

administrative judge’s finding that the investigation itself was a covered personnel

action under 5 U.S.C. § 2302(a)(2)(A). Shibuya, 119 M.S.P.R. 537, ¶ 22 n.12.

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 establish ed.

5 C.F.R. § 1209.4(e).

DISCUSSION OF ARGUMENTS ON REVIEW 6

¶11 On review, the parties do not challenge the administrative judge’s findings

that the agency established a nexus between the charge and the efficiency of the

service and the reasonableness of the penalty for the sustained charges. RPFR

File, Tabs 1, 3. Furthermore, the parties do not challenge the administrative

judge’s finding that the agency failed to show by clear and convincing evidence

that it would have changed the appellant’s duties, moved his office, and proposed

his demotion absent his protected disclosure. Id. We have reviewed the record

and discern no basis to disturb these findings. See 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 reasoned conclusions on issues of credibility). Therefore,

the only issue on review concerns the appellant’s affirmative defense of

whistleblower reprisal; specifically, whether the administrative judge correctly

determined that the agency failed to show by clear and convincing evidence that

it would have demoted the appellant in the absence of his protected disclosure.

¶12 In an adverse action appeal, an appellant’s claim of whistleblower reprisal

is treated as an affirmative defense. Campbell v. Department of the Army,

123 M.S.P.R. 674, ¶ 11 (2016). In such appeals, once the agency proves its

adverse action case by a preponderance of the evidence, 7 the appellant must show

by preponderant evidence that he engaged in whistleblowing activity by making 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.; 5 C.F.R.

§ 1201.56(b)(2)(i)(C). When, as here, the appellant makes such a showing, the

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.

Preponderance of the evidence is defined by regulation as that degree of relevant

evidence which 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).

Board will order corrective action unless the agency shows by clear and

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

of the whistleblowing. 5 U.S.C. § 1221(e)(2); Chavez v. Department of Veterans

Affairs, 120 M.S.P.R. 285, ¶ 28 (2013).

¶13 In determining whether an agency has shown by clear and convincing

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

whistleblowing, the Board generally 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 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 a re otherwise

similarly situated. Carr v. Social Security Administration, 185 F.3d 1318, 1323

(Fed. Cir. 1999). 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. Alarid v. Department of the Army, 122 M.S.P.R. 600,

¶ 14 (2015). The Board must consider all of the evidence, including evidence that

detracts from the conclusion that the agency met its burden. Whitmore v.

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

The administrative judge properly determined that the strength of the agency’s

evidence in support of the demotion was undermined by its response once it

learned of the appellant’s misconduct, and its handling of the disciplinary action.

¶14 As to the first Carr factor, in the remand initial decision, the administrative

judge found that the agency’s response once it learned of the appellant’s alleged

misconduct undermined the strength of its evidence in support of the demotion.

RID at 6-7. In so finding, she relied on the following findings of fact from the

earlier initial decision, which the Board affirmed in the prior Opinion and Order :

The proposing official never reviewed the evidentiary package

supporting the proposed demotion; the proposing official failed to

order a customary case analysis for the matter; the individual

advising the proposing official rejected a case analysis by the

servicing personnel office that recommended a 30-day suspension

without even discussing it with the proposing official; the deciding

official lacked understanding of the evidence supporting the

demotion action; and the appellant remained responsible for leading

and providing advice and policy in the position to which he was

demoted even though the agency’s proffered reason for the demotion

was to take such responsibilities away from him.

RID at 6-7; Shibuya, 119 M.S.P.R. 537, ¶¶ 33, 36; ID at 38-42. The

administrative judge concluded that these actions suggested a “rush to judgment.”

RID at 6-7.

¶15 On review, the agency argues that the administrative judge erred in finding

that the deciding official did not have any familiarity with the evidentiary record

and that the agency’s actions once it learned of the appellant’s misconduct

suggested a “rush to judgment.” RPFR File, Tab 1 at 6‑13; RID at 6-8. The

appellant argues that these issues already were affirmed by the Board’s earlier

Opinion and Order and that relitigating them now contravenes the law-of-the-case

doctrine. RPFR File, Tab 3 at 14-18.

¶16 The law-of-the-case doctrine limits relitigating an issue that already was

decided in a different stage of the same litigation. Nease v. Department of the

Army, 103 M.S.P.R. 118, ¶ 10 (2006). Under this doctrine, the Board generally

will not reconsider an issue it already decided in a prior proceeding unless an

exception exists, such as the availability of new and substantially different

evidence, a contrary decision of law by a controlling authority that applies to the

question at issue, or a showing that the prior decision in the same appeal was

clearly erroneous and would work a manifest injustice. See Mangano v.

Department of Veterans Affairs, 109 M.S.P.R. 658, ¶ 24 (2008).

¶17 Here, the Board affirmed the administrative judge’s earlier findings of fact,

as set forth above, regarding the agency’s response once it learned of the

appellant’s alleged misconduct. The agency has not identified any basis to find

that an exception to the law-of-the-case doctrine applies. Therefore, insofar as

the agency seeks to reargue these findings of fact, we invoke the law-of-the-case

doctrine and decline to reconsider our prior findings. See Seas v. U.S. Postal

Service, 78 M.S.P.R. 569, 573 (1998) (invoking the law-of-the-case doctrine and

declining to reconsider prior findings the Board made regarding the merits of the

agency’s charges).

¶18 However, the administrative judge determined for the first time on remand

that the factual findings regarding the agency’s response indicated a “rush to

judgment.” RID at 6-7. As the Board previously did not affirm this finding, the

law-of-the-case doctrine does not apply. Nonetheless, we agree with the

administrative judge’s determination that these agency actions reflect a rush to

judgment.

¶19 Although the Board affirmed the administrative judge’s finding that the

deciding official lacked an understanding of the evidence supporting the demotion

action, it did not expressly affirm the administrative judge’s finding that the

deciding official had no familiarity with the evidentiary record. Shibuya,

119 M.S.P.R. 537, ¶ 33. Therefore, the law-of-the-case doctrine does not apply to

this particular finding. However, we find that the fact that the deciding official

lacked an understanding of the evidence weighs against the agency and warrants

the same result as if the deciding official had no familiarity with the evidentiary

record.

¶20 In the remand initial decision, the administrative judge also reiterate d her

prior finding that the agency largely ignored evidence relevant to the severity of

the appellant’s misconduct as it was moving forward with disciplinary action, as

evidenced by the following factors:

No one in the agency expressed contemporaneous concerns about the

appellant’s solicitation of record destruction; some of the

solicitations predated any specific agency rule forbidding them; the

appellant was unaware of the impropriety of the solicitations; the

appellant stopped the solicitations as soon as he was ordered to do

so; the appellant’s improper arrangement with [the outside attorney]

was of limited scope; and the appellant’s conduct was based on the

[outside attorney’s] advice.

RID at 7 (internal citations omitted). The agency does not challenge this finding

on review, RPFR File, Tab 1, and we discern no basis to disturb it.

¶21 In sum, we agree with the administrative judge’s finding that the agency’s

response once it learned of the appellant’s misconduct and its handling of the

disciplinary action undermine the strength of the evidence in support of the

demotion. Therefore, we find that the first Carr factor does not weigh in favor of

the agency.

The administrative judge properly determined that the proposing and deciding

officials had a strong motive to retaliate against the appellant.

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

proposing official had a strong motive to retaliate against the appellant because

she was upset with the appellant’s decision to make the disclosure to OSC and

viewed the appellant as acting self-righteously and outside the chain of command.

RID at 8. The administrative judge also found it appropriate to impute the

proposing official’s strong motive to retaliate to the deciding official. Id.

¶23 On review, the agency argues that the administrative judge erred in finding

that the proposing and deciding officials held a “strong motive” to retaliate

because they were not implicated by the appellant’s disclosures or involved in the

matters disclosed. RPFR File, Tab 1 at 11, 14. However, it is not necessary that

an agency official be directly implicated or harmed by an appellant’s disclosures

to establish a substantial retaliatory motive when, as here, the disclosures reflect

poorly on the agency and, by implication, on the management officials. See

Robinson v. Department of Veterans Affairs, 923 F.3d 1004, 1019 (Fed. Cir.

2019) (explaining that those responsible for the agency’s overall performance

may well be motivated to retaliate, even if they are not directly implicated by the

disclosures, as the criticism reflects on them in their capacities as managers and

employees); Whitmore, 680 F.3d at 1370-71 (finding that the appellant’s

criticisms cast the agency and, by implication, all of the responsible officials, in a

highly critical light by calling into question the propriety and honesty of their

official conduct); Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶ 69

(2011) (finding motive to retaliate because the appellant’s disclosures reflected

on the responsible agency officials as representatives of the general institutional

interests of the agency). Here, the appellant’s protected disclosure resulted in

agency and OIG investigations that were highly critical of the agency’s response

to allegations of financial misconduct by a member of the agency’s Senior

Executive Service (SES). RID at 8; 0295 W-2 AF, Tab 18, Subtab B. Moreover,

the Board previously found that the proposing and deciding officials knew of the

appellant’s disclosures before they proposed and sustained, respectively, the

appellant’s demotion. Shibuya, 119 M.S.P.R. 537, ¶ 23. Therefore, we find that

both the proposing official and the deciding official, as members of the SES, had

a substantial motive to retaliate because the appellant’s disclosure, which

reflected poorly on the agency in general, reflected on them as well. See

Whitmore, 680 F.3d at 1370-71.

¶24 The agency also argues that, contrary to the administrative judge’s finding,

the proposing official was not upset with the appellant’s disclosure to OSC.

RPFR File, Tab 1 at 7-10. However, the Board previously affirmed the

administrative judge’s finding that the proposing official admitted to her

disapproval of and distress over the appellant’s whistleblowing activity, Shibuya,

119 M.S.P.R. 537, ¶¶ 35-36, and we decline to reconsider this issue now pursuant

to the law-of-the-case doctrine. See Seas, 78 M.S.P.R. at 573. In addition, we

agree with the administrative judge’s determination that the proposing official’s

handling of the proposed demotion demonstrated a “rush to judgment” because

she did not review the evidentiary package supporting the proposed demotion and

failed to order a customary case analysis for the matter . RID at 6. In light of the

foregoing, we find no basis to disturb the administrative judge’s determination

that the proposing official had a strong motive to retaliate against the appel lant.

¶25 The agency next argues that the administrative judge erred in finding that

the proposing official’s retaliatory motive could be imputed to the deciding

official because the deciding official testified that he never had any conversations

with the proposing official about the appellant’s disclosure. RPFR File, Tab 1

at 14-15. Because Federal employees generally must rely on circumstantial

evidence to prove a motive to retaliate, the Board will consider any motive to

retaliate on the part of the agency official who ordered the action, as well as any

motive to retaliate on the part of other agency officials who influenced the

decision. Whitmore, 680 F.3d at 1371. For example, a “proposing official’s

strong motive to retaliate may be imputed to a deciding official” in some

circumstances. Id. (citing Chambers, 116 M.S.P.R. 17, ¶ 58). Here, given that

the deciding official sustained the proposed demotion without understanding the

evidence supporting the demotion, Shibuya, 119 M.S.P.R. 537, ¶ 33, we agree

with the administrative judge’s decision that it was appropriate to impute the

proposing official’s motive to retaliate to the deciding official. RID at 8.

The administrative judge correctly determined that agency failed to show that it

took similar actions against similarly situated nonwhistleblowers, but we modify

the initial decision to find that the CFO was not similarly situated to the

appellant.

¶26 In the remand initial decision, the administrative judge found that the

agency failed to show that it took similar actions against similarly situated

nonwhistleblowers and that, to the contrary, it treated the CFO, a

nonwhistleblower, less harshly than it treated the appellant . RID at 8-9.

¶27 On review, the agency argues that the administrative judge erred in finding

that the CFO was similarly situated to the appellant because their alleged

misconduct and other circumstances regarding their employment were not simila r.

RPFR File, Tab 1 at 15-17. Specifically, the agency asserts that the CFO was a

SES‑level employee, stationed in Texas, while the appellant occupied a GS-14

human resources position and was stationed in New Mexico. Id. at 16. The

agency further asserts that the CFO was accused of improperly charging rental car

costs to the Federal Government and the investigation into his misconduct was

handled at the agency level, while the appellant was accused of two counts of

poor judgment and the investigation was handled by the Forest Service at the

direction of the agency’s Office of the General Counsel. Id. The agency also

contends that the two are not similarly situated because the appellant was

demoted, while the CFO was removed. Id.

¶28 The appellant argues that the Board already has affirmed the administrative

judge’s finding that the CFO was similarly situated to the appellant and that the

comparison is useful to show that the agency treated the CFO, a

nonwhistleblower, less harshly than it treated the appellant by awarding him a

performance award and a salary increase after the alleged miscond uct and by not

expeditiously conducting an investigation after learning about his alleged

misconduct. RPFR File, Tab 3 at 21-23.

¶29 As an initial matter, the Board previously affirmed the administrative

judge’s finding that the agency treated the CFO, a nonwhistleblower, less harshly

than it treated the appellant. Shibuya, 119 M.S.P.R. 537, ¶¶ 34, 36. However, the

Board did not make any finding as to whether the CFO was similarly situated to

the appellant. Id. Therefore, the law-of-the-case doctrine does not apply to the

issue of whether the CFO was similarly situated to the appellant . See Nease,

103 M.S.P.R. 118, ¶ 10.

¶30 For an employee to be considered similarly situated to an appellant who is

disciplined, his conduct and the surrounding circumstances must be similar.

Carr, 185 F.3d at 1326. Our reviewing court has emphasized, however, that

comparison employees must be similarly situated to the appellant, “not identically

situated.” Whitmore, 680 F.3d at 1373 (emphasis added). “[T]he requisite degree

of similarity between employees cannot be construed so narrowly that the only

evidence helpful to the inquiry is completely disregarded.” Id. “Differences in

kinds and degrees of conduct” should be considered in evaluating the evidence

regarding Carr factor three. Id.

¶31 Here, notwithstanding the broad interpretation of “similarly situated” in this

context, we find that the CFO is not similarly situated to the appellant. As noted

by the agency, the CFO and the appellant did not engage in similar conduct, did

not occupy similar positions, and did not work in the same state, and different

departments handled the investigations into their misconduct. 0295 W-2 AF,

Tab 18, Subtab B, Tab 24. The appellant has not shown any similarities between

the two individuals, and we discern no basis to conclude that they are similarly

situated for the purpose of a Carr ‑ factor analysis simply because they both

worked for the Forest Service and were both investigated for misconduct at

around the same time. Accordingly, we modify the remand initial decision to find

that the CFO was not similarly situated to the appellant. Nonetheless, when, as

here, the agency fails to present evidence showing that it has treated similarly

situated nonwhistleblowers in a similar manner, the absence of such evidence

may weigh against the agency. Whitmore, 680 F.3d at 1374-75. Therefore, we

find that Carr factor three still weighs against the agency.

The administrative judge correctly determined that the agency failed to show by

clear and convincing evidence that it would have demoted the appellant absent his

protected disclosure.

¶32 The agency argues that, contrary to the administrative judge’s

determination, it established by clear and convincing evidence that it would have

demoted the appellant absent his protected disclosure because his misconduct was

egregious and serious. RPFR File, Tab 1 at 17-23. As discussed above, however,

we find no basis to disturb the administrative judge’s determination that the

strength of the agency’s evidence in support of the demotion action was

undermined by the surrounding circumstances. Further, we have affirmed the

administrative judge’s finding that both the proposing and deciding officials had a

strong motive to retaliate against the appellant. Regarding the third Carr factor,

we find that the agency’s failure to present evidence as to its treatment of

similarly situated nonwhistleblowers tends to weigh against it.

¶33 Weighing the Carr factors, the administrative judge concluded that, even

though the agency proved the charges, it failed to show by clear and convincing

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

disclosure. RID at 9. The agency’s arguments on review provide no basis to

disturb this well-reasoned finding. See Crosby, 74 M.S.P.R. at 105‑06.

Therefore, we agree with the administrative judge’s finding that the appellant

proved his affirmative defense of whistleblower reprisal and that the demotion

action must be reversed.

ORDER

¶34 We ORDER the agency to cancel the appellant’s demotion, restore him to

the GS-201-14 Supervisory Human Resource Specialist position (Branch Chief,

Human Resources and Labor Relations) effective June 6, 2010, and to place the

appellant as nearly as possible in the position to the situation he would have been

in absent the agency’s retaliatory actions at issue in the IRA appeals. See Kerr v.

National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984); 5 U.S.C.

§ 1221(g)(1). The agency must complete this action no later than 20 days after

the date of this decision.

¶35 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.

¶36 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 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).

¶37 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).

¶38 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 N FC 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 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. 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 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 an d

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 tha t 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 a ny 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