Opinion

Trinity Ingram-Jones v. Department of the Army

Court: Merit Systems Protection Board
Filed: Feb 23, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.7%

holding that in the absence of relevant comparator evidence, the third Carr factor cannot favor the agency

How later courts described this case

holding that in the absence of relevant comparator evidence, the third Carr factor cannot favor the agency
holding that, in the context of an appointment, the agency’s decision to terminate the hiring process by canceling the vacancy announcement was sufficient under the plain language of the statute to constitute a “fail[ur e] to take . . . a personnel action”
“The lack of evidence on the third Carr factor appears neutral[.]”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TRINITY LYNN INGRAM-JONES, DOCKET NUMBERS

Appellant, AT-1221-14-0633-W-2

AT-1221-15-0313-W-1

v. AT-0752-15-0340-I-1

DEPARTMENT OF THE ARMY,

Agency.

DATE: February 23, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL 1

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

Stuart A. Miller, Esquire, Locust Grove, Georgia, for the appellant.

Gedety Serralta, Esquire, and Jason B. Myers, Esquire, Washington, D.C.,

for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

FINAL ORDER

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

denied her request for corrective action in these two joined individual right of

action (IRA) appeals and dismissed her involuntary resignation claim for lack of

jurisdiction. For the reasons set forth below, we GRANT the appellant’s

petition for review and AFFIRM the initial decision AS MODIFIED.

Specifically, we REVERSE the administrative judge’s finding that the alleged

changes to the appellant’s duties, responsibilities, and working conditions are not

covered by 5 U.S.C. § 2302(a)(2)(A)(xii). We FIND that the appellant

established a prima facie case of whistleblower reprisal because she proved that

her protected disclosures and protected activity were contributing factors to the

significant change in duties, responsibilities, and working conditions; FIND that

the agency failed to prove by clear and convincing evidence that it would have

taken the personnel actions even in the absence of the appellant’s protected

disclosures and protected activity; and GRANT the appellant corrective action.

BACKGROUND

¶2 The appellant was employed by the agency as a Nurse Specialist (Case

Manager), GS-0610-12, and was the Sexual Assault Medical Management

Program Manager at the Winn Army Community Hospital (WACH) in

Fort Stewart, Georgia. Ingram-Jones v. Department of the Army, MSPB Docket

No. AT-1221-14-0633-W-2, Appeal File (W-2 AF), Tab 12 at 46-47. From

July 2012 through April 2014, her first-line supervisor was R.M., and from

April 2014 until her resignation, her first-line supervisor was C.H. Hearing

Transcript (HT) at 8, 115-16 (testimony of R.M. and C.H.). The appellant’s

second-line supervisor was the WACH Commander. W-2 AF, Tab 12 at 9.

¶3 On September 14, 2013, a WACH employee requested the appellant’s

assistance to examine a 4-year-old child for signs of physical abuse. W-2 AF,

Tab 13 at 18-19. The appellant examined the child on September 16, 2013, and

she observed a right foot fracture and scars on his hands and leg, which she

believed were consistent with cigarette burns. Id. at 27. After the examination,

she contacted WACH’s Social Work Services (SWS), the primary point of contact

in child abuse cases that is responsible for intake, investigation, and case

management, W-2 AF, Tab 44 at 29, and offered to provide a report she had

prepared regarding the alleged abuse, including photographs and detailing the

injuries discovered from the examination, W-2 AF, Tab 43 at 44-45, 48. The case

proceeded to the Case Review Committee (CRC), which determines whether

concerns of child abuse under its purview warrant recommending Government

action. W-2 AF, Tab 44 at 29; HT at 396 (testimony of the appellant). The CRC

did not substantiate the case of physical abuse. W-2 AF, Tab 13 at 23-24. Soon

thereafter, the appellant learned that SWS representatives to CRC, in concert with

a representative from the state’s Department of Children and Family Services,

downplayed the evidence of abuse and the seriousness of the child’s foot injury.

Id. at 24. Further, she was told that the SWS employee to whom she had offered

her report with photographs falsely stated to the CRC that there were n o such

reports or photographs. Id.

¶4 On November 6, 2013, the appellant emailed the Chief of Staff, 3rd Infantry

Division, informing him of her colleagues’ conduct. W-2 AF, Tab 32 at 5-18.

The next day, the appellant emailed the agency’s Inspector General (IG) repeating

her allegations. W-2 AF, Tab 13 at 16-37. She also informed R.M. of her

complaints to the Chief of Staff and the IG. Id. at 37-38.

¶5 As a result of these complaints, the Commanding General of the U.S. Army

Medical Command (MEDCOM) ordered an investigation pursuant to Army

Regulation 15-6 (15-6 investigation). W-2 AF, Tab 43 at 5-8. The investigating

officer issued a report that validated some of the appellant’s claims that SWS

understated the evidence of abuse to the CRC. Id. at 32-33. Specifically, the

report noted that SWS members failed to indicate that during a forensic interview

conducted by the appellant, the child stated that his father “burned him with a

white stick.” Id. The 15-6 investigation also revealed that multiple sources felt

that the appellant routinely exceeded her scope of practice by “dictating what

each organization should do in each case.” Id. at 34. The investigating officer

recommended that WACH leadership clearly define the roles and expectations of

all parties involved, including the appellant. Id. The WACH commander

delegated these instructions to R.M. to ensure that the recommendations be

carried out. Ingram-Jones v. Department of the Army, MSPB Docket

No. AT-1221-14-0633-W-1, Initial Appeal File (IAF), Tab 17 at 38-39.

¶6 Around the same time that the investigation began, the appellant alleged

that R.M. provided false information to the credentialing committee and

documented with the committee that the appellant was the subject of the 15 -6

investigation. IAF, Tab 5 at 22-23. Following the completion of the

investigative report, on January 10, 2014, R.M. convened a meeting with the

appellant, some of her colleagues, and C.H. to review the investigation’s results

and discuss its instructions. Id. at 86-88. In the appellant’s view, R.M. became

hostile with her, lectured her for going outside the chain of command with her

complaints, and embarrassed her in front of her colleagues. Id. at 32-35. The

appellant alleged that following the meeting, R.M. restricted her practice b y

prohibiting her from seeing pediatric nonsexual abuse patients. Id. at 33.

¶7 The appellant also alleged that, over the next several months, the agency

denied her training request for a forensic nursing conference, threatened to

suspend her credentials, and attempted to rewrite her position description.

W-2 AF, Tab 6 at 12-13, 23. She further alleged that the agency failed to

promote her from a GS-12 level to a GS-13 level and reduced her retention

incentive benefit. Id. at 25, 56. The appellant also noticed that over the course of

several months, many of her job duties changed. Id. at 11-26. She believed that

the agency reassigned her policy-writing duty to another employee and prohibited

her from arranging outside agreements with state-run facilities. Id. at 23-24, 57.

The agency also changed the training the appellant was conducting at WACH and

prohibited her from performing pediatric sexual assault evaluations. W-2 AF,

Tab 17 at 65, 106-09.

¶8 Throughout that time, the appellant filed two complaints with the Office of

Special Counsel (OSC) claiming that the agency’s actions were taken in

retaliation for her disclosures to the Chief of Staff, 3rd Infantry Division, and to

the IG. IAF, Tab 5 at 23; W-2 AF, Tab 6 at 6-21. OSC terminated its

investigations and notified the appellant of her right to seek corrective action

from the Board. IAF, Tab 5 at 16; W-2 AF, Tab 6 at 22-27. In January 2015, the

appellant informed the agency of her intent to resign. Ingram-Jones v.

Department of the Army, MSPB Docket No. AT-0752-15-0340-I-1, Initial Appeal

File (0340 IAF), Tab 6 at 16-18. 2 As a result of her OSC complaints and

resignation, the appellant filed two IRA appeals and an involuntary resignatio n

appeal with the Board. IAF, Tab 1; Ingram-Jones v. Department of the Army,

MSPB Docket No. AT-1221-15-0313-W-1, Initial Appeal File, Tab 1; 0340 IAF,

Tab 1. The administrative judge joined the three appeals. W-2 AF, Tab 3. After

holding a hearing, the administrative judge issued an initial decision denying

corrective action in both IRA appeals and dismissing the involuntary resignation

appeal for lack of jurisdiction. W-2 AF, Tab 50, Initial Decision (ID).

¶9 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 3. The agency has filed an opposition, to which the appellant has

replied. PFR File, Tabs 7-8.

The effective date of the appellant’s resignation was January 31, 2015. 0340 IAF,

Tab 6 at 16-18.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant proved that the agency took personnel actions under 5 U.S.C.

§ 2302(a)(2)(A).

¶10 When reviewing the merits of an IRA appeal, 3 the Board must determine

whether the appellant has established by preponderant evidence that s he made a

protected disclosure or engaged in a protected activity that was a contributing

factor in a personnel action taken against her. 5 U.S.C. § 1221(e)(1); Lu v.

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

preponderance of the evidence is the degree of relevant evidence that a reasonable

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

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

¶11 Under the Whistleblower Protection Act (WPA), a “personnel action” is

defined as an appointment; a promotion; an action under 5 U.S.C. chapter 75 or

other disciplinary or corrective action; a detail, transfer, or reassignment; a

reinstatement; a restoration; a reemployment; a performance evaluation under

5 U.S.C. chapter 43 or under Title 38; a decision about pay, benefits, or awards or

concerning education or training if the education or training reasonably may be

expected to lead to an appointment, promotion, performance evaluat ion, or other

action described in 5 U.S.C. § 2302(a)(2)(A); a decision to order psychiatric

testing or examination; the implementation or enforcement of any nondisclosure

policy, form, or agreement; and any other significant change in duties,

responsibilities, or working conditions. 5 U.S.C. § 2302(a)(2)(A); Skarada v.

Department of Veterans Affairs, 2022 MSPB 17, ¶ 14.

In the initial decision, the administrative judge determined that the appellant

established jurisdiction over her IRA appeals because she exhausted her administrative

remedy with OSC for both IRA appeals and nonfrivolously alleged the requisite

jurisdictional elements. ID at 22-23; see Bradley v. Department of Homeland Security,

123 M.S.P.R. 547, ¶ 6 (2016). We find no reason to disturb these findings, which

neither party challenges on review.

¶12 The appellant alleged that the agency took the following personnel actions

against her in reprisal for her disclosures: failed to promote her from a GS-12

position to a GS-13 position, decreased her retention incentive, suspended and

revoked her credentials, denied a training request, and proposed changing her

position description. W-2 AF, Tab 35 at 3-4. She also alleged that the agency

removed the following job duties: performing forensic pediatric sexual assault

evaluations; treating pediatric nonsexual abuse patients; policy writing;

conducting local training courses; negotiating memoranda of underst anding

(MOUs) and memoranda of agreement (MOAs); and collaborating with outside

agencies regarding the sexual assault patient population. Id. The administrative

judge found that the decreased retention incentive consti tuted a personnel action

under section 2302(a)(2)(A)(ix) because it was a decision concerning the

appellant’s pay. ID at 38-39. He also found that removing the appellant’s duty to

perform forensic pediatric sexual assault evaluations was a s ignificant enough

change in duties to constitute a personnel action under section 2302(a)(2)(A)(xii).

ID at 42-43. In conjunction, he found that C.H.’s failure to seek an exception to

ending WACH’s forensic pediatric sexual assault evaluations also constituted a

personnel action. ID at 43. The administrative judge found that none of the other

alleged actions constituted personnel actions under section 2302(a)(2)(A). ID

at 26-45.

¶13 On review, the appellant argues that the administrative judge erred in

finding that only two of the alleged agency actions constituted personnel actions

under section 2303(a)(2)(A). PFR File, Tab 3 at 15-31. We agree with the

administrative judge’s findings that the failure to promote, the proposed change

in her position description, and the suspension of her credentials do not constitute

personnel actions under section 2303(a)(2)(A). We also agree with the

administrative judge that the appellant failed to prove that the agency removed

her duty to draft MOUs and MOAs and to coordinate with outside organizations.

We will not disturb those findings here. However, we find that the administrative

judge erred in his analysis of the appellant’s change in duties. After our review

of the record, we find that the appellant proved that she suff ered a significant

change to her job duties, responsibilities, and working conditions and that such a

change constitutes a personnel action under section 2302(a)(2)(A)(xii). We

address each action in turn below.

Failure to Promote

¶14 Regarding the appellant’s failure to promote claim, she argues that in 2014,

all other nurse practitioners in the organization were promoted to GS -13 positions

but that C.H. created and planned to advertise a GS-13 position to which she

would have to apply. PFR File, Tab 3 at 15-16. C.H. stated that he was aware of

the appellant’s desire for more clinical work, W-2 AF, Tab 16 at 37, and he

testified that to accommodate that desire, he would need to increase her grade

from a GS-12 to a GS-13, HT at 132-33 (testimony of C.H.). He further testified

that he did not have the authority to promote the appellant from a GS-12 to a

GS-13, id., so he approached her with the idea that he would create a GS -13

position to which she could apply that allowed for more clinical time, W -2 AF,

Tab 16 at 37, 40. The appellant rejected C.H.’s proposition. Id. at 40.

¶15 In previous cases in which the Board has considered whether a failure to

promote was a personnel action under the WPA, the agency had announced a

vacancy and filled it with another individual or canceled the vacancy. See

Ruggieri v. Merit Systems Protection Board, 454 F.3d 1323, 1325-27 (Fed. Cir.

2006) (holding that, in the context of an appointment, the agency’s decision to

terminate the hiring process by canceling the vacancy announcement was

sufficient under the plain language of the statute to constitute a “fail[ur e] to

take . . . a personnel action”); Briley v. National Archives and Records

Administration, 71 M.S.P.R. 211, 221 (1996). 4 Here, there was no vacancy

announcement, and, although the agency intended to create one, it is undisputed

that the appellant rejected the opportunity to apply for the position. Under these

circumstances, we find there to be no personnel action.

¶16 To the extent that the appellant argues that she should have been promoted

because other nurses were promoted from a GS-12 to a GS-13, we find this

argument to be without merit. The administrative judge found that because there

was no vacancy at issue here, the appellant’s argument effectively constituted a

claim of a failure to reclassify from a GS-12 grade to a GS-13 grade. ID at 38.

To prove that a failure to reclassify the appellant’s position constitutes a

personnel action under section 2302(a)(2)(A), she must prove that comparable

positions had been reclassified elsewhere by the agency because of a change in

the classification standards or a classification error and that she would have met

the legal and qualification requirements for promotion. Briley, 71 M.S.P.R.

at 221-22.

¶17 We need not address whether the appellant would have met the legal and

qualification requirements for a promotion because her allegation is that other

nurse practitioners were promoted to the GS-13 grade—not that they were

reclassified. PFR File, Tab 3 at 15-16. Regardless, if she had alleged that the

other nurse practitioners were reclassified, she presented no evidence that they

were in a similar enough position or shared similar enough duties that such a

comparison would be relevant. Accordingly, we agree with the administrative

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

judge’s conclusion that the appellant failed to prove by preponderant evidence

that the agency’s actions or inactions regarding a promotion constitute a

personnel action under section 2302(a)(2)(A).

Threatened Changes to Position Description

¶18 The appellant also alleges, as a separate personnel action, that C.H.

threatened to change her position description when he created the tentative

position description for the GS-13 position. PFR File, Tab 3 at 28; HT at 428-30

(testimony of the appellant). At the hearing, C.H. testified that WACH needed

more medical providers for its clinics, so he and R.M. decided to rewrite the

appellant’s position description to include more clinical time and have a

discussion with her about whether she found it acceptable. HT at 132-33

(testimony of C.H.). The record shows that C.H. already was aware that the

appellant wanted more clinical time, and he was trying to facilitate that request,

W-2 AF, Tab 16 at 37, but he acknowledged that the new position description

would lessen the amount of time the appellant spent on sexual assault cases, HT

at 136-37 (testimony of C.H.). Because the appellant was not receptive to the

new position description, however, C.H. did not pursue it any further, and no

changes were made to her current position description. HT at 180 (testimony of

C.H.), 498-99 (testimony of the appellant); W-2 AF, Tab 16 at 74-75.

¶19 The administrative judge found that C.H.’s act of offering a new position

description for the appellant’s review did not qualify as a personnel action

because she was not required to compete for the position, and therefore, it did not

constitute a “threat.” ID at 45; 5 U.S.C. § 2302(b)(8). On review, the appellant

highlights several conversations between herself, C.H., and other employees

regarding the tentative position description. PFR File, Tab 3 at 25-28. We have

reviewed these conversations and find that they do not change the outcome

arrived at by the administrative judge. Although the Board has held that the term

“threaten” in section 2302 should be interpreted broadly, Campo v. Department of

the Army, 93 M.S.P.R. 1, ¶ 5 (2002), the ultimate decision on whether C.H. would

pursue the new position description was left to the appellant. C.H. forwarded the

new position description to the appellant “to gauge her interest,” W-2 AF, Tab 16

at 63, and when she objected, he no longer pursued it, HT at 180 (testimony of

C.H). Even considering the broad interpretation afforded the term “threaten,” we

agree with the administrative judge’s finding that these actions do not constitute a

personnel action under section 2302(a)(2)(A).

Suspended Credentials

¶20 Regarding the appellant’s suspended credentials claim, she alleges that C.H.

conducted an internet search of her name and discovered that she had been

arrested on a domestic violence charge in July 2012. PFR File, Tab 3 at 17-18;

HT 449-50 (testimony of the appellant). She claims that she immediately

provided him with documentation showing that the arrest was in error and that

she was actually the victim of the domestic incident in question. W-2 AF, Tab 17

at 189-96. She asserts that C.H. nevertheless arranged for pediatric evaluations,

which were normally performed by the appellant, to be performed at another

hospital until the issue of the arrest and its effect on the appellant’s credentials

could be worked out. Id. at 189-90. The appellant argues that these actions

resulted in the suspension of her credentials. PFR File, Tab 3 at 17-18.

¶21 At the hearing, C.H. testified that he typed the appellant’s name into a

search engine after unsuccessfully attempting to view an internet link she sent

him regarding her qualifications. HT at 146 (testimony of C.H.). He testified

that the internet search produced an arrest history naming the appellant. Id. He

further testified that a human resources official recommended holding the

appellant’s credentials in abeyance until the matter could be investigated but that

the appellant provided him with the paperwork proving that the arrest was in

error. HT at 152-55 (testimony of C.H.). C.H. testified that, because these events

occurred over the weekend, he never signed the paperwork that would have

formally actuated the abeyance. HT at 156 (testimony of C.H.). The

administrative judge found that the appellant did not meaningfully rebut this

testimony, and, therefore, found that there was no suspension of the appellant’s

credentials. ID at 39-40.

¶22 On review, the appellant’s argument seems to focus more on the internet

search than the alleged suspended credentials. PFR File, Tab 3 at 17-18. She

argues that the search was unwarranted because C.H. had access to her

credentialing file, which included two of her background checks, and that the

administrative judge erred in finding nothing improper about the sear ch. 5 Id.; ID

at 56. We find the appellant’s arguments unpersuasive, as she did not contest

C.H.’s claim that her credentials were never actually put in abeyance or

suspended. Further, even if the internet search was improper, the appellant has

failed to show that this action constitutes a personnel action under

section 2302(a)(2)(A). Accordingly, we agree with the administrative judge’s

finding that the appellant failed to prove that the agency suspended

her credentials.

Negotiating MOUs and MOAs and Collaborating with Outside Agencies

¶23 The appellant also alleges that the agency removed or reassigned her duties

of negotiating MOUs and MOAs for sexual assault patients and collaborating

with outside agencies regarding the sexual assault patient population. W-2 AF,

Tab 12 at 49-50. The administrative judge found that the appellant did not

present sufficient evidence to prove that these duties were significant or that they

were actually removed from her responsibilities. ID at 43. We have thoroughly

reviewed the record, which appears to show disagreement and confusion between

the agency and the appellant concerning the status of these duties and the

The administrative judge’s findings regarding the appropri ateness of the internet

search were in relation to his analysis of the appellant’s involuntary resignation claim.

ID at 51, 56. Because the same facts surrounding these allegations apply to both the

appellant’s IRA claims and her involuntary resignation claim, we find the

administrative judge’s findings to be relevant in both instances.

appellant’s performance of them, W-2 AF, Tab 17 at 132-34, Tab 18 at 56, and

agree with the administrative judge’s conclusions. Therefore, we find that the

appellant has failed to prove that these alleged actions constituted a

personnel action.

Denial of Training Request

¶24 The appellant also alleges that the agency subjected her to a personnel

action when it denied her a training request. PFR File, Tab 10 at 10. Although it

is undisputed that the agency denied the training request, the Board has held that ,

within the meaning of the WPA, a decision concerning training qualifies as a

“personnel action” only if the training reasonably may be expected to lead to an

appointment, a promotion, a performance evaluation, or some other action

described in 5 U.S.C. § 2302(a)(2)(A). Mason v. Department of Homeland

Security, 116 M.S.P.R. 135, ¶ 28 (2011). The administrative judge considered

this argument below and found that the appellant failed to provide any meaningful

evidence or argument that the denied training would reasonably have been

expected to lead to any of the actions outlined in section 2302(a)(2)(A). ID

at 40-41. We have reviewed the record, and we agree. Therefore, we find that

the appellant’s training denial does not constitute a personnel action.

Decrease in Retention Incentive

¶25 The appellant has asserted that the agency decreased her retention incentive

from 20% to 15%, a claim undisputed by the agency. In the initial decision, the

administrative judge found that this affected the appellant’s pay and awards and,

thus, constituted a personnel action pursuant to 5 U.S.C. § 2302(a)(2)(A)(ix). ID

at 38-39. Neither party has disputed this ruling on review, a nd we find no reason

to disturb it.

Significant Change in Duties, Responsibilities, or Working Conditions

¶26 The appellant also alleged that she experienced a significant change in

duties, responsibilities, or working conditions as contemplated by

section 2302(a)(2)(A)(xii). 6 W-2 AF, Tab 35 at 3-4. She alleged that after she

made her disclosures in November 2013, the agency prohibited her from treating

pediatric nonsexual abuse patients and ultimately from performing forensic

pediatric sexual assault evaluations. Id. She also alleges that the agency

assigned her policy-writing duties to other employees and ended the local trainin g

sessions she conducted. Id.

¶27 The administrative judge considered each duty separately, and he found that

the only significant change in duty that constituted a personnel action under

section 2302(a)(2)(A) was removing her duty to perform forensic pediatric sexual

assault evaluations. ID at 42-43. He found that limiting the appellant from

seeing pediatric nonsexual abuse patients did not constitute a significant change

in duty because it was not her duty in the first instance. ID at 26-37. He also

found that none of the other alleged change in duties, standing alone, constituted

a “significant change in duties, responsibilities, or working conditions” as

contemplated by section 2302(a)(2)(A)(xii). ID at 41-45.

¶28 When determining whether an appellant has suffered a “significant change

in duties, responsibilities, or working conditions,” the Board consider s the alleged

agency actions both collectively and individually. Skarada, 2022 MSPB 17, ¶ 16;

see also Holderfield v. Merit Systems Protection Board, 326 F.3d 1207, 1209-10

(Fed. Cir. 2003). Although it may be questionable whether any actions, standing

In the appellant’s initial IRA appeal, she alleged that she suffered from a hostile work

environment. IAF, Tab 4 at 4. The administrative judge did not include a hostile work

environment claim in his summary of the issues, W-2 AF, Tab 35 at 3-4, and the

appellant does not appear to have objected to that summary, id. at 1. The initial

decision does not include a discussion of a hostile work environment claim, and only in

the appellant’s reply to the agency’s response to her petition for review, not in her

initial petition, does she raise the issue of a hostile work environment again. PFR File,

Tab 8 at 3-4. Nonetheless, we will consider the appellant’s claims here as they relate to

her working conditions. See Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 23

(2015), overruled in part by Pridgen v. Office of Management and Budget, 2022 MSPB

31, ¶¶ 23-25.

alone, amount to a “significant change in duties, responsibilities or working

conditions,” the alleged changes may nevertheless constitute a personnel action

under section 2302(a)(2)(A)(xii) if considered collectively. Here, we find that the

administrative judge erred by failing to consider collectively the alleged changes

in the appellant’s duties. Thus, the relevant inquiry on review is whether the

appellant’s allegations, collectively, constitute a “significant change in duti es,

responsibilities, or working conditions.”

¶29 The Board has held that a significant change in duties should be const rued

broadly. Ingram v. Department of the Army, 116 M.S.P.R. 525, ¶ 4 (2011).

Additionally, after issuance of the initial decision , the Board issued its decision in

Skarada, 2022 MSPB 17, wherein it further interpreted the meaning of the

statutory language, “significant change in duties, responsibilities, or working

conditions,” and held that to constitute a “significant change” under

section 2302(a)(2)(A)(xii), an agency action must have a significant impact on the

overall nature or quality of an employee’s working conditions, responsibilities, or

duties. Skarada, 2022 MSPB 17, ¶ 15. After our thorough review of the record,

we find that the appellant experienced a change in her duties, responsibilities, and

working conditions and that change had a significant impact on the nature of her

duties and responsibilities, and on the quality of her working conditions.

Therefore, we find that the appellant suffered a personnel action under

section 2302(a)(2)(A)(xii).

¶30 Regarding the appellant’s duty to treat pediatric nonsexual abuse patients,

she testified that after making her disclosures, R.M. prohibited her from seeing

any pediatric nonsexual abuse patients and that 4 months later, her new

supervisor, C.H., permitted her to see those patients only after seeking approval.

HT at 418, 488 (testimony of the appellant). Several months later, C.H. again

instructed the appellant to refrain from seeing pediatric nonsexual abuse patients.

W-2 AF, Tab 17 at 57. The appellant further testified that this limitation

decreased the total number of patients she saw and that the decrease was a

significant change from previous years. HT at 480, 487-89 (testimony of the

appellant). She also testified that limiting her ability to see those patients could

impact her credentials, which she was required to maintain to hold her position.

HT at 425-26, 429 (testimony of the appellant).

¶31 Discussing this alleged change in duty in isolation, the administrative judge

provided an 11-page analysis ultimately concluding that treating pediatric

nonsexual abuse patients was not the appellant’s duty in the first instance because

it was not included in her position description nor was it assigned or instructed by

a supervisor. ID at 26-37. We disagree. The Board has held that when a

question is raised regarding the nature and character of the duties performed and a

review of the position description may be inadequate, it will consider all factors

having a bearing upon the totality of the circumstances concerning the duties

performed. Lara v Department of Homeland Security, 101 M.S.P.R. 190,

¶ 9 (2006).

¶32 Here, the appellant’s position description outlines duties related to “sexual

assault and abuse.” W-2 AF, Tab 12 at 47. The appellant testified that this

language implies duties related to sexual assault and general physical abuse. HT

at 479-80 (testimony of the appellant). Testimony from agency officials seems to

support this interpretation. The Chief of Pediatrics testified that one could not be

a sexual abuse expert without seeing physical abuse, that sexual abuse is physical

abuse, and that differentiating between the two would be very difficult. HT

at 228 (testimony of S.B.). A WACH pediatrician testified it was “normal

business” to consult with the appellant on pediatric nonsexual abuse cases

because she was the “local child abuse expert.” HT at 344-45 (testimony of

A.M.). R.M. testified that he would expect the appellant to have the same role in

any type of abuse case as any other pediatric provider. HT at 55-56 (testimony of

R.M.). C.H.’s 2014 evaluation of the appellant and his corresponding testimony

also reference the appellant’s duties related to “abuse and sexual assault

patients.” W-2 AF, Tab 12 at 16; HT at 120-21 (testimony of C.H.).

¶33 Moreover, it is undisputed that both R.M. and C.H. were aware that the

appellant was performing this duty, and R.M. praised her for her willingness to go

“out of her own lane.” W-2 AF, Tab 12 at 10; HT at 31, 50, 415-16 (testimony of

R.M. and the appellant). Although the administrative judge found this comment

to be in reference to the Chief of Staff, 3rd Infantry Division, and the IG issues,

we discern no basis for that finding, as R.M. testified that h e wrote the comments

on October 31, 2013—a week before the appellant made her disclosures. HT

at 29, 31-33 (testimony of R.M.); W-2 AF, Tab 13 at 16-38. Accordingly, we

reverse the administrative judge’s findings and hold that treating pediatric

nonsexual abuse patients was a part of the appellant’s duties and responsibilities

and that, even standing alone, the circumstances outlined above demonstrate a

“significant change in duties, responsibilities, or working conditions” under

section 2302(a)(2)(A)(xii).

¶34 Regarding forensic pediatric sexual assault evaluations, W-2 AF, Tab 12

at 50, the appellant testified that this duty comprised approximately 50% of her

job and “was a huge part of [her] whole life” before the agency eliminated it, HT

at 421, 514 (testimony of the appellant). The administrative judge found that

eliminating this duty, and C.H’s failure to seek an exception to the cessation,

constituted personnel actions independent of any other apparent change in duties.

ID at 43. We agree, and we find no reason to disturb these findings. Regarding

her role in policy drafting, W-2 AF, Tab 12 at 9, 47, the appellant testified that

sexual assault was a prevalent issue in the Army, and prior to her disclosures, she

was “constantly trying to keep up” with the guida nce from the Department of

Defense in writing policy, but after her disclosures, others were asked to write

and update policy, HT at 418-20 (testimony of the appellant); W-2 AF, Tab 17

at 29-30. 7 The administrative judge found that a change in duties

“unquestionably occurred,” but that on its own, it did not rise to the level of

“significant.” ID at 42. Regarding the training instruction, the appellant testified

that she provided “award winning” training programs, W-2 AF, Tab 12 at 9, 50;

HT at 432, 507 (testimony of the appellant), which took up a significant amount

of her time, but after her disclosures, she was no longer permitted to provide the

training, HT at 507 (testimony of the appellant). The administrative judge made

no finding on whether this constituted a personnel action and only found that the

appellant’s disclosures were not a contributing factor to the agency’s removing

this duty. ID at 44-45. Regarding general working conditions, supra ¶ 26 & n.6,

the appellant testified that implementing these changes occurred “behind her

back,” that her supervisors “started acting like they didn’t know who [she] was,”

and that they would not respond to her concerns. HT at 432-33 (testimony of the

appellant). She further testified that the significant change in duties led others to

believe she was no longer in charge of the sexual assault program at WACH. HT

at 516 (testimony of the appellant).

¶35 After careful consideration, we find that the appellant has demonstrated

that, collectively, these changes had a significant impact on the overall nature or

quality of her responsibilities, duties, and working conditions. See Skarada,

2022 MSPB 17, ¶ 15. Many of these changes directly relate to the essence of the

appellant’s position not only as the Sexual Assault Medical Management Program

Manager, W-2 AF, Tab 12 at 46-47, but also as a nurse practitioner, id. at 53, and,

thus, had an impact on the overall nature of her duties and responsibilities.

Accordingly, we find that the significant changes in the appellant’s duties,

The appellant testified that she still had input in the policy but was no longer writing

it. HT at 509 (testimony of the appellant).

responsibilities, and working conditions constitute a personnel action under

section 2302(a)(2)(A)(xii).

The appellant made protected disclosures and engaged in protected activity.

¶36 Having narrowed the scope of what personnel actions the appellant proved,

we now turn to the question of whether she proved by preponderant evidence that

she made protected disclosures under 5 U.S.C. § 2302(b)(8) or engaged in

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

§ 1221(e)(1); Corthell v. Department of Homeland Security, 123 M.S.P.R. 417,

¶ 8 (2016). To establish that she made a protected disclosure, the appellant must

show that she reasonably believed that the conduct being disclosed evidenced a

violation of any law, rule or regulation, gross mismanagement, a gross waste o f

funds, an abuse of authority, or a substantial and specific danger to public health

or safety. 5 U.S.C. § 2302(b)(8)(A); Chavez v. Department of Veterans Affairs,

120 M.S.P.R. 285, ¶ 18 (2013). The administrative judge found that the appellant

reasonably believed that her allegations about the improper handling of the child

abuse case were accurate and that those disclosures evidenced an allegation of an

abuse of authority. ID at 25. Thus, he found that the appellant made protected

disclosures under section 2302(b)(8). Neither party has challenged this finding

on review, and we find no reason to disturb it.

¶37 Although the administrative judge considered whether the appellant made a

protected disclosure, he failed to consider whether the appellant engaged in

protected activity. ID at 23-25. Among the activities contemplated by

section 2302(b)(9) is “cooperating with or disclosing information to the Inspector

General, . . . or the Special Counsel, in accordance with applicable provisions of

law.” 5 U.S.C. § 2302(b)(9)(C). Here, there is no dispute that the appellant

disclosed information to the IG when she filed her complaint in November 2013

expressing her concerns over the CRC and SWS. Therefore, we find that the

appellant engaged in protected activity under section 2302(b)(9)(C), and we

modify the initial decision in that regard.

The appellant’s protected disclosures and protected activity were contributing

factors in the significant change in her duties, responsibilities, and

working conditions.

¶38 Having found that the significant change in the appellant’s duties,

responsibilities, and working conditions and the reduction in her retention

incentive constituted personnel actions under 5 U.S.C. § 2302(a)(2)(A), we next

consider whether the appellant’s protected disclosures and protected activity were

contributing factors to these actions. 5 U.S.C. § 1221(e)(1); Lu, 122 M.S.P.R.

335, ¶ 7. The most common way for an appellant to prove that a protected

disclosure was a contributing factor in the agency’s taking of a personnel action

is the knowledge/timing test. Scoggins v. Department of the Army, 123 M.S.P.R.

592, ¶ 21 (2016). That test requires the appellant to prove that the agency official

taking the personnel action knew of the whistleblowing disclosure or protected

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

reasonable person could conclude that the disclosure or activity was a

contributing factor to the personnel action. Id. Once the appellant has satisfied

the knowledge/timing test, she has demonstrated that a protected disclosure or

protected activity was a contributing factor in the personnel action, even if a

complete analysis of all of the evidence would not support such a finding.

Gonzalez v. Department of Transportation, 109 M.S.P.R. 250, ¶ 20 (2008).

¶39 Regarding the reduction in the appellant’s retention incentive from 20% to

15%, the administrative judge found that C.H. only had the authority to approve a

15% retention incentive and that only MEDCOM headquarters could approve a

20% retention incentive, which C.H. recommended. ID at 46-47. Thus, the

administrative judge found that the appellant failed to establish who was

responsible for taking the action and that she, therefore, failed to establish that

her protected disclosures or protected activity were a contributing factor to the

reduced retention incentive. Id. On review, the appellant argues that WACH, and

specifically C.H., intentionally failed to comply with MEDCOM headquarters’

requests to forward the information required to grant the request of th e 20%

retention incentive. PFR File, Tab 3 at 16. We have reviewed the record and

have found no evidence proving that C.H. contributed to or was the source of

WACH’s failure to comply with requests from MEDCOM headquarters to

forward the required information. 8 Therefore, we agree with the administrative

judge’s conclusion that the appellant failed to prove that her protected disclosures

and protected activity were contributing factors to the decreased

retention incentive.

¶40 We now turn to whether the appellant’s protected disclosures and protected

activity were a contributing factor to the significant change in her duties,

responsibilities, and working conditions. Regarding the restriction on the

appellant’s ability to see pediatric nonsexual abuse patients, the record shows that

R.M. became aware of the appellant’s protected disclosures in November 2013,

HT at 22 (testimony of R.M.), and that he restricted the appellant from seeing

those patients between January 2014 and April 2014, W-2 AF, Tab 17 at 17, 20,

22; HT at 48-51, 76 (testimony of R.M). Because R.M. knew of the appellant’s

disclosures and took the agency action within 2 months of becoming aware of the

disclosures, we find that this satisfies the knowledge/timing test. See Scoggins,

123 M.S.P.R. 592, ¶ 25 (finding that a personnel action that occurs within 2 years

of the appellant’s disclosure satisfies the timing component of the

knowledge/timing test).

The appellant argues that on one of the forms relevant to the retention incentive, C.H.

wrote “yes” to the question of whether there were “candidates available in the market

who, with minimal training, cost, or disruption of mission, could perform the full range

of duties of the position at the level performed by the employee,” and that his response

would effectively eliminate the appellant’s chance to receive a 20% retention incentive.

PFR File, Tab 3 at 16-17; W-2 AF, Tab 18 at 18. This argument, however, is

unpersuasive because C.H. ultimately recommended a 20% retention incentive.

W-2 AF, Tab 18 at 18.

¶41 After R.M.’s departure in April 2014, C.H. became the appellant’s

supervisor. HT at 115-16 (testimony of C.H.). He testified that he first became

aware of the disclosures at the January 2014 meeting. Id. at 175-76. He informed

the appellant sometime around April or May of 2014 that he would permit her to

see pediatric nonsexual abuse patients if she cleared it with him first, HT

at 200-01, 488-89 (testimony of C.H. and the appellant), then fully restricted the

duty again in August 2014, W-2 AF, Tab 17 at 57. Because C.H. had knowledge

of the appellant’s disclosures and took his actions within 7 months of becoming

aware of the disclosures, we find that this satisfies the knowledge/timing test.

See Scoggins, 123 M.S.P.R. 592, ¶ 25.

¶42 Regarding removing policy writing from the appellant’s duties, the record

shows that the WACH Commander directed C.H. to have a particular policy

rewritten. W-2 AF, Tab 17 at 30. C.H. indicated in an email to the appellant that

the WACH Commander directed him to “hand off the writing of this policy.” Id.

at 32. In June 2014, C.H. delegated the duty to somebody in the Emergency

Department. Id. Concerning C.H., we have already found that he had knowledge

of the appellant’s disclosures. Supra ¶ 41. Concerning the WACH Commander,

the appellant has contended that he had knowledge of her disclosures, IAF, Tab 4

at 5, and the agency has not disputed her contention. Further, the WACH

Commander is the agency official who communicated the results of the 15 -6

investigation to R.M., who discussed them at the January 2014 meeting. HT at 32

(testimony of R.M.); W-2 AF, Tab 15 at 23-24. Based on the foregoing, we find

that the WACH Commander knew of the appellant’s disclosures. Because these

agency officials took this action within 5 months of learning of the disclosures,

we find that the appellant has satisfied the knowledge/timing test on this i ssue.

See Scoggins, 123 M.S.P.R. 592, ¶ 25.

¶43 Regarding removing the duty to perform forensic pediatric sexual assault

evaluations, the administrative judge considered whether the appellant’s

disclosures were a contributing factor to this action. ID at 42-43, 47. He found

that the Deputy Commanding General of MEDCOM made the decision to end

forensic pediatric sexual assault evaluations in November or December 2014. Id.;

W-2 AF, Tab 28 at 36. The administrative judge also found that the Deputy

Commanding General was aware of the appellant’s protected disclosures and

protected activity because she was the agency official who ordered WACH to

initiate the 15-6 investigation that was prompted by the appellant’s protected

disclosures and activity. ID at 47; W-2 AF, Tab 43 at 5-8. Thus, the

administrative judge found that because she ended the appellant’s duty to perform

forensic pediatric sexual assault evaluations within 1 year of becoming aware of

the appellant’s disclosures, the appellant met the knowledge/timing test. ID

at 47. The administrative judge also found that the appellant met the

knowledge/timing test for C.H.’s declining to seek an exception to ceasing this

duty because his inaction occurred within 1 year of becoming aware of the

disclosures. Id. Neither party disputes these findings on review, and we find no

reason to disturb them.

¶44 Regarding removing the appellant’s duty to conduct the local training, we

find that there is insufficient evidence to determine who made the decision to take

this action. The record contains various emails between the appellant and an

agency official, wherein both attempted to identify who was responsible for the

decision. W-2 AF, Tab 17 at 79-87. The record also includes an email from C.H.

to the appellant confirming that all Sexual Assault Medical Forensics Examiners

training “courses from this point forward will be central. I received email

confirmation today.” Id. at 73. Nowhere does C.H. reference from whom he

received the confirmation, nor has the appellant identified th e person responsible

for the decision. Because the appellant has not proven who made the decision to

remove this duty, she has failed to meet her burden of proof as to this action.

¶45 On the whole, and notwithstanding our finding regarding the local traini ng,

we find that the appellant has met her burden of proving that her disclosures and

protected activity were a contributing factor to the significant change in her

duties, responsibilities, and working conditions.

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

taken the same actions in the absence of the protected disclosures and

protected activity.

¶46 Because the appellant established a prima case of whistleblower reprisal, we

turn to the question of whether the agency pro ved by clear and convincing

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

disclosures. 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).

¶47 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 the

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 it s

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 are not whistleblowers but

who are otherwise similarly situated. Soto v. Department of Veterans Affairs,

2022 MSPB 6, ¶ 11; see also 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. Lu, 122 M.S.P.R. 335, ¶ 7. The Board must

consider all the evidence, including evidence that detracts from the conclusion

that the agency met its burden. Soto, 2022 MSPB 6, ¶ 11; see also Whitmore v.

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

Restriction on the Appellant from Treating Pediatric Nonsexual

Abuse Patients

¶48 In examining the strength of the evidence in support of the agency’s action

to restrict the appellant from treating pediatric nonsexual abuse patients, we find

the agency’s evidence to be weak. At the hearing, R.M. testified that when he

limited the appellant from seeing pediatric nonsexual abuse patients, he was

following instructions from higher officials as a result of the 15 -6 investigation.

HT at 30, 80-82 (testimony of R.M.). However, the investigative report simply

made recommendations and stated that “[l]eadership needs to clearly define the

rules and expectations of all parties when a case occurs.” W -2 AF, Tab 43 at 34.

It did not require R.M. to remove this duty; he could have formally incorporated

the duty, which the appellant was already performing prior to her disclosures, into

her position description. Further, the 15-6 investigative report upon which R.M.

relied was the direct product of the appellant’s protec ted disclosures and

protected activity.

¶49 After R.M.’s departure, C.H. initially permitted the appellant to treat

pediatric nonsexual abuse patients only after seeking his approval, but restricted

the duty again in August 2014. HT at 200-01, 488-89 (testimony of C.H. and the

appellant); W-2 AF, Tab 17 at 57. He emailed the appellant telling her to “hold

off” on seeing this classification of patients because, despite being credentialed to

see pediatric patients, her position description did not include those duties.

W-2 AF, Tab 17 at 57. We find C.H.’s explanation for restricting this duty to be

weak. The appellant’s job description had not changed in the time period

surrounding her disclosures, and the agency does not dispute that the appellant

performed these duties prior to making her disclosures. Thus, to rely on the

position description as the sole reason to restrict a duty previously permitted prior

to the appellant’s disclosures is suspect, at best, and does not provide sufficient

support to justify the agency action. Accordingly, we find this factor favors

the appellant.

¶50 In examining the existence and strength of the evidence of the agency

officials’ motive to retaliate, we find the evidence to be strong, particularly

regarding R.M. The record is replete with evidence that R.M. was upset with the

appellant for making her disclosures outside of her chain of command. Several

witnesses testified that during the January 2014 meeting, R.M. expressed his

frustration with the appellant for making her disclosures in the manner in which

she made them. HT at 26, 126-27, 231, 270-71, 414-15 (testimony of R.M., C.H.,

S.B., and the appellant). Regarding C.H., at the time the appellant made her

disclosures, he was not her supervisor, and the disclosures do not implicate any

wrongdoing on his part. However, we have found that those responsible for the

agency’s performance overall 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. Wilson v. Department of Veterans

Affairs, 2022 MSPB 7, ¶ 65; Smith v. Department of the Army, 2022 MSPB 4,

¶¶ 28-29. Thus, we find that C.H. may have had a slight motive to retaliate. In

any event, because we find the evidence of R.M.’s retaliatory motives to be

strong, we find that this factor also favors the appellant.

¶51 Next, we examine any evidence that the agency takes similar actions against

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

The agency has not identified other employees who primarily performed forensic

pediatric sexual assault exams, but are credentialed to, and occasionally did,

consult with staff on pediatric nonsexual abuse patients. Nonetheless, we find

that the relevant inquiry of potential similarly situated employees should be

viewed from a different perspective. Because it appears undisputed that the

agency took this action as a result of the 15-6 investigation, we look to other

employees affected by the report but who did not engage in whistleblowing

activity. The agency has failed to identify any of these employees or to

demonstrate that they also experienced a significant change in duties. Because it

is the agency’s burden of proof, 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). We find that this factor is neutral. See Siler v.

Environmental Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018) (holding

that in the absence of relevant comparator evidence, the third Carr factor cannot

favor the agency).

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

the agency has failed to prove by clear and convincing evidence that it would

have restricted the appellant’s ability to treat pediatric nonsexual abuse patients

in the absence of the appellant’s protected disclosures and protected activity,

particularly because in that absence, the 15-6 investigation would not

have occurred.

Removal of the Appellant’s Duty to Write Policy

¶53 In examining the strength of the agency’s evidence to reassign the duty of

policy writing to another employee, we find the agency’s evidence to be weak.

C.H. testified that the appellant wrote the original agency policy on handling

sexual assaults from a forensic and medical perspective, but the WACH

Commander ordered it to be rewritten because it was outdated. HT at 196-97

(testimony of C.H.). The record shows that the WACH Commander asked C.H. to

“hand off the writing of this policy.” W-2 AF, Tab 17 at 32. C.H. further

testified that he had “no idea how it became assigned or why [another] person was

chosen,” but immediately thereafter testified that the person chosen was the

“crossover” between “ambulatory nurse care . . . and the physician side.” HT

at 197 (testimony of C.H.). He testified that the appellant was not involved in

rewriting the policy but was consulted afterward. HT at 198 (testimony of C.H.).

The WACH Commander did not testify, and C.H. offered no explanation for why

the appellant, who he admitted was an expert on the subje ct matter, HT at 123

(testimony of C.H.), was not asked to update the policy that she had previously

written and that directly relates to her job duties. That the appellant was later

consulted regarding the draft policy helps the agency’s case to a degree , HT

at 197-98 (testimony of C.H.), but we ultimately conclude that this factor weighs