# Anita Thomas v. Department of Veterans Affairs

> Merit Systems Protection Board · September 6, 2023

URL: https://www.frixlaw.com/law-library/cases/9838614

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** September 6, 2023
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

ANITA FAY THOMAS, DOCKET NUMBER
Appellant, AT-0752-14-0008-I-1

v.

DEPARTMENT OF VETERANS DATE: September 6, 2023
AFFAIRS,
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

LaKesha B. Shahid, Montgomery, Alabama, for the appellant.

Tsopei T. Robinson, Montgomery, Alabama, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal action. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous

1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 Prior to her removal, the appellant was an Employment Specialist
(Coordinator), GS-0301-12, at the Montgomery, Alabama, Veterans Affairs
Regional Office (VARO). Initial Appeal File (IAF), Tab 5 at 4. 2 The appellant
was removed based on three charges: (1) improper possession of protected
information (13 specifications), (2) misuse of position, and (3) unauthorized
disclosure of private information. 3 Id. at 22-27, 58. She filed this appeal. IAF,
Tab 1. After holding a hearing, the administrative judge sustained all three
charges, determined that the agency established that a nexus existed between the
proven charges and the efficiency of the service, and found that the appellant
failed to prove her several affirmative defenses. IAF, Tab 31, Initial Decision

2
When citing to IAF, Tab 5, we refer to the page numbers generated by the Board’s
e-Appeal system (e.g., here, we cite to IAF, Tab 5 at 4 of 332).
3
The agency proposed the appellant’s removal based on the three sustained charges and
two additional charges, lack of candor and failure to follow instructions
(2 specifications). IAF, Tab 5 at 22-27. The agency’s deciding official found that these
additional charges were unsubstantiated and did not sustain them. Id. at 58.
3

(ID) at 5-48; IAF, Tab 25 at 3-11. 4 Finally, the administrative judge found that
the agency considered the relevant factors and the penalty of removal did not
exceed the tolerable limits of reasonableness, and he thus affirmed the agency’s
removal action. ID at 49-57. The appellant has filed a petition for review.
Petition for Review (PFR) File, Tab 3.

The administrative judge properly sustained the first charge, improper possession
of protected information.
¶3 On review, the appellant challenges the administrative judge’s findings of
fact regarding the first and primary charge, improper possession of protected
information. Id. at 9-10. The appellant had previously served as a Staff Assistant
in the Office of the Assistant Director of VARO. IAF, Tab 14, Ex. B at 2. She
was reassigned to the Employment Coordinator position in the Vocational
Rehabilitation and Employment Division (VR&E) on September 25, 2011. IAF,
Tab 5 at 5. On May 17, 2012, P.S., a VARO employee, reported to then-Director
R.R. that the first page of a final agency decision (FAD) in an EEO complaint
that she had filed had been discovered on a color printer within the VR&E area.
Id. at 12-13. The agency determined that the appellant had recently accessed the
Human Resources data files and had used the color printer that week. Id. at 7,
13-14. An examination of the appellant’s computer revealed a collection of
“emails and documents from her many years working in the Director’s Office that
may be inappropriate for her to maintain.” Id. at 7-8. Based on this finding, the
agency convened an administrative investigation board (AIB) , which ultimately
concluded that the appellant had obtained and misused information pertaining to
several agency employees, including P.S. Id. at 9-10, 17-20. The agency
identified 13 groups of documents that the AIB determined had been improperly

4
The appellant does not challenge the administrative judge’s findings regarding
harmful procedural error and age discrimination on review, and we do not disturb those
findings.
4

saved to the appellant’s computer. Id. at 22-25. These groups of documents
formed the basis for the 13 specifications of the charge. Id.
¶4 The administrative judge found that the agency proved all specifications of
the charge. ID at 5-21. The appellant conceded that the documents were saved to
her computer, and, absent any evidence to suggest that someone else had saved
them, the administrative judge found that the agency established that the
appellant had saved them to her computer. ID at 6. The administrative judge
found that the appellant’s retaining the documents potentially violated a number
of regulations and policies pertaining to information management, computer
security, and ethical conduct. ID at 6-8. He then described each group of
documents included in the charge, concluding that at least one of the documents
described in each group contained protected information. ID at 8-13.
¶5 The appellant’s arguments on review challenge the agency’s final element
of proof, which was that the appellant did not need the protected information she
possessed to fulfill her official duties. ID at 13. The administrative judge’s
finding for this element relied upon his assessment of the appellant’s credibility
when she testified about her reasons for saving the documents. ID at 13-21. He
found significant discrepancies between the testimony that the appellant gave at
the hearing and the testimony she had given to the AIB. He pointed out that,
during the hearing, the appellant testified that she saved the documents while
performing her duties as a Staff Assistant, whereas her testimony before the AIB
suggested that she was stockpiling documents to use in support of corruption
allegations against agency management or for the purpose of supporting her own
potential EEO complaints. ID at 15, 17.
¶6 The administrative judge closely assessed the credibility of the appellant’s
testimony pursuant to the factors in Hillen v. Department of the Army,
35 M.S.P.R. 453, 458 (1987). The administrative judge found that portions of the
appellant’s hearing testimony supported the proposition that she had testified
truthfully during the AIB, and that she had a stronger incentive to shade her
5

testimony and justify her actions at the Board hearing. ID at 18-19. The
administrative judge also considered the appellant’s demeanor. ID at 19 -20. He
concluded that her hearing testimony had not been completely forthright and that
she shaded her testimony to place her actions in the light most beneficial to her
legal position. ID at 20.
¶7 The Board must give deference to an administrative judge ’s credibility
determinations when they are based, explicitly or implicitly, on observ ing the
demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so. Haebe
v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Sufficiently
sound reasons include findings that are incomplete, inconsistent with the weight
of the evidence, and do not reflect the record as a whole. Faucher v. Department
of the Air Force, 96 M.S.P.R. 203, ¶ 8 (2004). The appellant has not offered any
such reasons that would justify overturning the administrative judge’s finding .
Accordingly, we will not disturb his findings.

The administrative judge properly sustained the second charge, misuse of
position.
¶8 The appellant argues that the administrative judge failed to consider the
unique facts surrounding the charge that she had misused her position. PFR File,
Tab 3 at 10-11. The charge arises from the appellant’s accessing and retaining
documents while she was a Staff Assistant in the Director’s office, including a
metrics worksheet that she later used in her personal EEO complaint based on her
nonselection for the Human Resources Specialist position. IAF, Tab 5 at 14-15,
25, Tab 6 at 244-45. The appellant admits that she provided her attorney with the
metrics worksheet, but she asserts that she had no other choice because the
agency failed to produce it during the investigation of her EEO complaint . PFR
File, Tab 3 at 11.
¶9 The administrative judge found the circumstances here similar to those in
Williams v. Social Security Administration, 101 M.S.P.R. 587 (2006). ID
6

at 22-24. In Williams, the appellant used his access to the agency’s computer
systems to print workload reports for the employees in his office, and he gave
unredacted copies to his attorney for use in his EEO complaint . Williams,
101 M.S.P.R. 587, ¶ 3. When his attorney offered those reports as evidence
during a hearing before the Equal Employment Opportunity Commission (EEOC),
the EEOC administrative judge sustained the agency’s objection that releasing the
reports violated the Privacy Act and confiscated them. Id., ¶ 4. The agency
subsequently removed Williams for failure to comply with the rules and
regulations regarding the authorized access and disclosure of Social Security
systems and records and violations of the agency’s Standards of Conduct. Id.,
¶ 5. Although an arbitrator mitigated the removal to a 90-day suspension, he
nevertheless found that Williams had improperly accessed and disclosed the
documents in question, though not for personal gain. Id., ¶ 6. When the Board
considered the case on review, it affirmed the arbitrator’s decision, explaining
that the documents had been obtained improperly. Id., ¶ 13 (citing O’Day v.
McDonnell Douglas Helicopter Company, 79 F.3d 756, 763-64 (9th Cir. 1996));
cf. Gill v. Department of Defense, 92 M.S.P.R. 23, ¶ 22 (2002) (finding that the
agency did not prove that the appellant’s disclosure of documents to an EEO
counselor violated the Privacy Act because, among other things, the EEO
counselor was acting within the scope of her duties and need ed the disclosed
records to perform her duties). 5 The administrative judge here found that the

5
In Smith v. Department of Transportation, 106 M.S.P.R. 59 (2007), the Board reached
the same conclusion based on somewhat similar circumstances. The Board later
reversed its published decision in Smith after the EEOC non-concurred with the Board’s
findings. Smith v. Department of Transportation, MSPB Docket No. AT-0752-05-0901-
E-1, Final Order (Apr. 25, 2012); Smith v. LaHood, EEOC DOC 0320080085, 2012 WL
1076119 (Mar. 21, 2012). Smith is distinguishable from the instant case, however. In
Smith, the EEOC drew an adverse inference against the agency because it had not
obeyed the Commission’s order to produce comparator evidence on the penalty. Smith,
2012 WL 1076119 at *5-6. In addition, in Smith, the appellant came across the
7

appellant, like Williams, had not obtained the metrics worksheet through proper
channels and had instead used her access to agency documents to improperly copy
the document from the Director’s inbox. ID at 23. He pointed out that she could
have asked her attorney to advise the agency where to find the documents or
sought the information therein through testimony of the interview panel. ID
at 23-24. The administrative judge concluded that the agency proved that the
appellant misused her position. ID at 24.
¶10 On review, the appellant seeks to distinguish Williams from her case. She
argues that she first sought to obtain the worksheet through official channels
while her complaint was under investigation but that the agency claimed that it
could not locate the document. PFR File, Tab 3 at 10-11. For that reason, she
argues, the agency’s hands are unclean and she had no other option but to use her
access to the agency’s computer systems to obtain the worksheet. Id. at 11. Even
assuming misconduct by agency personnel during the EEO inv estigation, we find
that the appellant nevertheless misused her position to obtain the metrics
worksheet. Had her complaint proceeded to a hearing, she could have deposed
the persons on the interview panel about their hiring decision or called such
persons as witnesses to obtain the information on the worksheet. Additionally,
during the AIB, the appellant admitted her wrongful motivation in obtaining the
worksheet, which is key evidence that she understood the impropriety of her
actions. IAF, Tab 5 at 18, Tab 6 at 240-41, 244-45. Accordingly, we find that
the administrative judge properly sustained the charge.

The appellant failed to establish that the agency retaliated against her based on
prior EEO activity.
¶11 The appellant asserts that the administrative judge incorrectly concluded
that she failed to show that the agency retaliated against her for prior EEO

documents in the course of his official duties. No such circumstances exist here or in
Williams, and thus we find Williams to be applicable.
8

activity. PFR File, Tab 3 at 15-16; ID at 31-39. To establish a claim of EEO
reprisal, an appellant must show that the prohibited cons ideration was at least a
motivating factor in the personnel action at issue. Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶¶ 21-22.
¶12 The administrative judge found that the appellant established that she
engaged in protected activity by filing an EEO complaint based upon her
nonselection as a Human Resources Specialist. ID at 33. He also found that the
deciding official was aware of her protected activity when she made the decision
to remove her. Id. Based on a thorough review of the record, however, he
concluded that the appellant failed to prove that her EEO activity was a
motivating factor in the removal decision. ID at 38.
¶13 On review, the appellant argues that the administrative judge failed to give
due weight to her testimony regarding her meeting with the deciding official
shortly after the deciding official became the Acting Director of VARO to report
retaliation by her supervisor, C.H., for EEO activity. 6 PFR File, Tab 3 at 15;
HCD 2 (testimony of the appellant). The appellant explains that the
administrative judge acknowledged that she met with the deciding official but
stressed that there was no testimony as to what was discussed in the meeting.
PFR File, Tab 3 at 15; ID at 33 n.16. She asserts that she gave the deciding
official a spreadsheet documenting the retaliator y activity during the meeting.
PFR File, Tab 3 at 15. Even considering the deciding official’s testimony that
such a meeting may have occurred and that she might have seen the spreadsheet,
HCD 1 (testimony of L.W.), the appellant has not shown that the administrative

6
The appellant asserts that the administrative judge “incorrectly stated in his decision
that the deciding official had no knowledge of the appellant’s prior EEO activity.” PFR
File, Tab 3 at 15. We find, to the contrary, that the administrative judge fou nd that the
deciding official was aware of the appellant’s protected EEO activity when she made
the removal decision. ID at 33. Knowledge of activity, however, does not necessarily
mean it was a motivating factor.
9

judge incorrectly characterized the nature of the meeting. ID at 33 n.16. The
deciding official’s testimony shows that her recall of the meeting was tenuous and
uncertain. HCD 1 (testimony of L.W.). As the administrative judge pointed out,
the appellant did not submit the spreadsheet for the record. ID at 33 n.16. Her
failure to submit the spreadsheet weakens her claims about the nature of the
meeting because it was within her ability to provide supporting documentation.
Based in part on demeanor evidence, the administrative judge also foun d that her
assertions regarding the meeting were less than credible. ID at 20. Her argument
is thus unavailing.
¶14 The appellant further argues that the proposing and deciding officials may
have known about and been influenced by her prior EEO activity, eve n absent
their direct involvement in that activity. PFR File, Tab 3 at 15. She argues that
the incoming Acting Director may have been briefed about employees that the
management perceived to be troublemakers. Id. She points to her testimony that
R.R., a previous Director, once told her that he had heard she was a “giant killer,”
a comment suggesting to her that such briefings occurred. PFR File, Tab 3 at 15;
HCD 2 (testimony of the appellant). The appellant additionally points to
testimony that R.R. threatened her job and that of another employee if they
reported him for wrongdoing. PFR File, Tab 3 at 15-16; HCD 1 (testimony of
L.F.); HCD 2 (testimony of the appellant). The appellant’s argument here is
purely speculative. She has not shown that R.R. exercised any influence over or
had contact with the proposing or deciding officials after his departure.
Therefore, we find that these assertions do not provide a basis for disturbing the
initial decision.
¶15 The appellant also asserts that the record contains “direct” evidence of
retaliatory motive based on the removal proposal notice’s references to her EEO
activity in the second charge (misuse of position) and to the monetary settlement
10

of her EEO complaint in a specification of the first charge . 7 PFR File, Tab 3
at 16. The administrative judge considered the agency’s reliance on the
appellant’s disclosure of protected information during the course of pursuing her
EEO complaint as circumstantial evidence of retaliation. ID at 35, 38. The
administrative judge explained in detail why the record as a whole did not support
a finding that the agency’s action was motivated by her protect ed EEO activity.
ID at 33-39.
¶16 We agree with the administrative judge’s finding that the agency intended
to hold the appellant accountable for violating rules and regulations regarding the
proper access and use of protected information within the agency’s possession
and control. ID at 34. We concur with the administrative judge’s conclusion that
she failed to meet her burden of establishing that her protected EEO activity was
a motivating factor in the agency’s decision to remove her. ID at 38 . 8

The appellant did not establish that her protected disclosures were a contributing
factor in the agency’s decision to remove her.
¶17 The appellant asserted reprisal for whistleblowing disclosures as an
affirmative defense, arguing that she had submitted the documents saved on her
hard drive as part of protected disclosures to a former Director and to agency
investigators. IAF, Tab 1 at 6, Tab 14 at 10-11, Tab 25 at 3-5. The
administrative judge found that the appellant proved that she made protected

7
The second charge states that the appellant “admitted to using [her] access as a
Director’s Office staff member to access and save nonpublic information on [her]
computer for use in [her] personal EEO case and to show corruption within the
[agency].” IAF, Tab 5 at 25. The third specification of the first charge states that the
appellant “saved to [her] computer . . . confidential Merit Promotion documents related
to a Human Resources Specialist position for which [she] applied . . . [and] presented
this information to [her] attorney in connection with [her] personal EEO Complaint for
nonselection, which led to a monetary settlement with the Agency.” Id. at 22.
8
Because we discern no error with the administrative judge’s motivating factor
analysis, we do not reach the question of whether discrimination or retaliation was a
“but-for” cause of the removal action. See Pridgen, 2022 MSPB 31, ¶ 20-22, 29-33.
11

disclosures but did not establish that those disclosures contributed to the agency’s
removal decision. ID at 39-48. On review, the appellant asserts that the
administrative judge improperly decided the issue of contributing factor. PFR
File, Tab 3 at 11-14.
¶18 To establish an affirmative defense of reprisal for whistleblowing
disclosures, an appellant must show by preponderant evidence that she made a
protected disclosure under 5 U.S.C. § 2302(b)(8) and that her protected disclosure
was a contributing factor in the agency’s personnel action. 9 Shibuya v.
Department of Agriculture, 119 M.S.P.R. 537, ¶¶ 19-20 (2013); see Alarid v.
Department of the Army, 122 M.S.P.R. 600, ¶ 12 (2015) (stating that a prohibited
personnel practice affirmative defense in a chapter 75 appeal that independently
could form the basis of an individual right of action appeal must be analyzed
under the burden-shifting scheme set forth in 5 U.S.C. § 1221(e)). One way of
establishing contributing factor is the knowledge/timing test, which is se t forth in
5 U.S.C. § 1221(e)(1). Alarid, 122 M.S.P.R. 600, ¶ 13. Under that test, an
appellant can prove the contributing factor element through evidence that the
official taking the personnel action knew of the protected disclosure and took the
personnel action within a period of time such that a reasonable person could
conclude that the disclosure was a contributing factor in the personnel action.
5 U.S.C. § 1221(e)(1); Alarid, 122 M.S.P.R. 600, ¶ 13. Even if the appellant fails
to satisfy the knowledge/timing test, the appellant may establish contributing
factor through other evidence, such as that pertaining to the strength or weakness
of the agency’s reasons for taking the personnel action, whether the
whistleblowing was personally directed at the proposing or deciding officials, and

9
We have reviewed the relevant legislation amending the whistleblower protection
statutory scheme that was enacted during the pendency of this appeal and have
concluded that it does not affect the outcome of the appeal, nor does it affect the
relevant holdings of the case law cited in this Final Order.
12

whether those individuals had a desire or motive to retaliate against the appellant.
Alarid, 122 M.S.P.R. 600, ¶ 13 n.6.
¶19 Here, the appellant specifically alleged that she had made various
disclosures regarding misconduct by the former Director, R.R. IAF, Tab 1 at 6,
Tab 14 at 10-11. The appellant testified that she made these disclosures by email
to another former Director, M.W. HCD 2 (testimony of the appellant); IAF,
Ex. L. The appellant submitted a copy of an email message to M.W. dated
April 27, 2012, in which she accused R.R. of various acts of misconduct
pertaining to misuse of his government cell phone and credit card and of the
agency canteen fund, as well as claiming that he failed to take action against an
employee alleged to have committed misconduct, forced the appellant to buy
items for the office using her personal credit card, and provided an agency
manager with an accommodation and handicapped parking space without
supporting medical documentation. IAF, Tab 14, Ex. L. The email also stated
that five employees, including the appellant herself and P.S., had filed EEO
complaints during the prior year. Id. In June and July 2012, the appellant also
discussed these and other allegations of wrongdoing with an investigative team
led by the agency’s New Orleans Regional Director. IAF, Tab 14, Ex. J. The
appellant testified that she gave the team documents showing that P.S.’s EEO
complaint had a basis in fact, that the agency had failed to comply with a posting
requirement contained within the EEOC’s order issued for P.S.’s complaint, and
that her supervisor had discriminated against employees on three different
occasions without suffering any consequences. HCD 2 (testimony of the
appellant). The team documented several of the appellant’s allegations in its
report. IAF, Tab 14, Ex. J.
¶20 Based on this evidence, the administrative judge found that the appellant
showed that she had made “at least some” protected disclosures. ID a t 45. The
administrative judge found, for example, that the disclosures the appellant made
to M.W. and the investigative team regarding R.R.’s misuse of his agency cell
13

phone and travel card were protected, based on the fact that she had personally
observed the misconduct and knew the pertinent rules and regulations. ID
at 45-46. He found, however, that the appellant failed to establish that either the
proposing or deciding official knew about her disclosures during the relevant
period. ID at 46. Although the appellant provided a letter of support to the
deciding official from M.W., in which M.W. mentioned that she had reported
“serious” allegations of misconduct by R.R., the administrative judge found that
she failed to show that M.W. had informed either the proposing or deciding
official about the actual content of her disclosures. Id.; IAF, Tab 14, Ex. I. The
administrative judge found no evidence that either the proposing or deciding
official knew about the appellant’s disclosures to the investigative team or had
seen the team’s final report, or that any of the investigators had contacted the
proposing or deciding official. ID at 46. The administrative judge thus
concluded that the appellant failed to establish that the proposing or deciding
officials had either actual or constructive knowledge of the disclosures . 10 Id.
¶21 The administrative judge assigned significant weight to two facts. First, the
documents the appellant allegedly saved for purposes of reporting
mismanagement and corruption do not specifically relate to the disclosures she
made to M.W. or to the investigative team; second, her AIB testimony did not
establish any linkage between the documents and her disclosures . ID at 46-47;
IAF, Tab 6 at 519-20. Instead, the documents pertain to other matters, including
the appellant’s personal EEO complaint, her promotion to Employment Specialist,

10
The administrative judge also considered the possibility that the proposing and
deciding officials might have perceived the appellant as a whistleblower ba sed on her
general allegations that she had participated in an agency investigation conducted by
the New Orleans Regional Director and that she retained agency documents alleging her
intention to report mismanagement and corruption. ID at 48 n.27. He found, however,
that she had never alleged that she was perceived as a whistleblower. Id.
14

and agency investigations of other employees. 11 IAF, Tab 5 at 22-25. We thus
concur with the administrative judge’s finding that the appellant failed to prove
that her disclosures regarding R.R. contributed to the agency’s decision to remove
her.
¶22 On review, the appellant asserts that the administrative judge’s findings are
erroneous. PFR File, Tab 3 at 11-14. She explains that the deciding official, who
was Acting Director when she was removed, initially testified that she did not
know the appellant and had acted solely based on the contents of the evidence
file, but she later testified that she “probably did” meet with the appellant prior to
the proposed removal. Id. at 13; HCD 1 (testimony of L.W.). She further
explains that the deciding official told her during the meeting that she did not
want to hear anything about what the previous Director might have done. PFR
File, Tab 3 at 13. The appellant asserts that the deciding official had actual
notice of her disclosures, and given the timing of the meeting—3 months before
the initial notice of proposed removal—she established under the
knowledge/timing test that her disclosures contributed to the agency’s removal
action. 12 Id. at 13-14.
¶23 The appellant’s argument relies upon speculation. As discussed supra, the
deciding official did not testify extensively regarding her discussion with the

11
We find that the EEO activity the appellant raises on review did not concern
remedying an alleged violation of 5 U.S.C. § 2302(b)(8), and thus it is appropriately
addressed supra in the discussion of the appellant’s allegations of retaliation for EEO
activity, rather than under the framework set forth in 5 U.S.C. § 1221(e). See 5 U.S.C.
§ 2302(b)(9)(A); Edwards v. Department of Labor, 2022 MSPB 9, ¶¶ 10-13, 20, 22-23
(reaffirming that allegations of retaliation for exercising a Title VII right do not fall
within the scope of section 2302(b)(8) or section 2302(b)(9)(A)(i)), aff’d, No. 2022-
1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023); Mattison v. Department of Veterans
Affairs, 123 M.S.P.R. 492, ¶ 8 (2016).
12
The agency’s first proposal notice was rescinded, as were the decision letters
resulting from it, and the appellant was removed based on the second proposal notice.
IAF, Tab 5 at 22-27, 58-61, Tab 14, Exs. W, GG-II, KK.
15

appellant during the meeting, and we found that, in her testimony regarding the
meeting, she sounded uncertain as to what had transpired. HCD 1 (testimony of
L.W.). The appellant did not submit the spreadsheet she alleges to have shown
the deciding official. ID at 33 n.16. Accordingly, we find that the appellant has
not offered any basis for us to disturb the administrative judge’s finding.

The Board need not determine whether the agency could have established by clear
and convincing evidence that it would have removed the appellant absent her
protected disclosures.
¶24 The appellant argues on review that the agency failed to establish by clear
and convincing evidence that it would have removed her anyway because the
agency was already under scrutiny and her own whistleblowing would further
damage its reputation. PFR File, Tab 3 at 14-15. The administrative judge,
however, did not reach this issue because he did not need to do so after finding
that the appellant failed to establish that the deciding officia l had actual or
constructive knowledge of her protected disclosures. ID at 48; see Clarke v.
Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 & n.10 (2014), aff’d,
623 F. App’x 1016 (Fed. Cir. 2015). The appellant’s argument is thus unavailing.

The agency considered the relevant factors and exercised management discretion
within tolerable limits of reasonableness.
¶25 Normally, the Board will review an agency-imposed penalty only to
determine if the agency considered all the relevant factors and exercised
management discretion within tolerable limits of reasonableness. Douglas v.
Veterans Administration, 5 M.S.P.R. 280, 306 (1981). If the Board sustains all of
the charges, the agency’s penalty determination is entitled to deference and
should be reviewed only to determine whether it is within the parameters of
reasonableness. Payne v. U.S. Postal Service, 72 M.S.P.R. 646, 650 (1996). In
addition, when all charges are sustained, the Board may mitigate the agency’s
original penalty to the maximum reasonable penalty only when it finds the
16

agency’s original penalty to be too severe. Lachance v. Devall, 178 F.3d 1246,
1260 (Fed. Cir. 1999).
¶26 The appellant argues that the penalty was unduly harsh. She points out that
the agency initially proposed her removal on five charges but only sustained three
of those charges. PFR File, Tab 3 at 17; IAF, Tab 5 at 58. She asserts that the
reduction in the number of charges would require the agency to reduce the
penalty. PFR File, Tab 3 at 17. She further asserts that the deciding official
failed to consider the mitigating circumstances in determining the penalty,
including a lack of prior discipline in 27 years of service, the performance awards
she had received, and her good work ethic. Id. at 17-18. She additionally asserts
that the deciding official failed to consider that she was subject to a hostile work
environment in retaliation for her EEO activities and that the hostile work
environment affected her health to the point that she qualified for disability
retirement payments under Social Security. 13 Id. at 18.
¶27 All of these matters were thoroughly addressed in the initial decision. ID
at 49-56. 14 Id. We agree and find that the appellant has not shown any material
error in the initial decision.

13
The appellant appended to her petition for review a February 25, 2016 award letter
from the Social Security Administration and correspondence, dated March 5, 2016,
from the Office of Personnel Management approving her application for disability
retirement. These documents are dated after the close of the record before the
administrative judge but before the issuance of the initial decision. Even accepting that
they meet the standard for “new” evidence, we find that the information they contain is
not of sufficient weight to change the outcome.
14
In sustaining the agency’s penalty, the administrative judge rejected the appellant’s
claim that she was subjected to a harsher penalty than similarly situated employees
were. ID at 52-56. As discussed supra, on review, the appellant challenges the
administrative judge’s finding that her testimony was less than credible regarding the
more lenient penalties assessed upon employees who committed more serious
misconduct than hers, but we discern no reason to disturb the administrative judge’s
well-reasoned credibility findings. PFR File, Tab 3 at 19.
In adjudicating the appellant’s disparate penalty claim, th e administrative judge cited to
the standard for assessing such a claim set forth in Woebcke v. Department of Homeland
17

NOTICE OF APPEAL RIGHTS 15
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described b elow 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.

Security, 114 M.S.P.R. 100, ¶ 20 (2010), and Villada v. U.S. Postal Service,
115 M.S.P.R. 268, ¶ 10 (2010). ID at 52. In Singh v. U.S. Postal Service, 2022 MSPB
15, ¶¶ 9-18, the Board overruled Woebcke and Villada to the extent they held that broad
similarity between employees was sufficient to shift the burden to the agency to explain
the difference in treatment, allowed for a seemingly limitless universe for potential
comparators, and construed the consistency of the penalty factor to be the sole outcome
determinative factor. We reinstated the former legal standard for analyzing disparate
penalty claims: whether the agency knowingly and unjustifiably treated employees who
engaged in the same or similar offenses differently. Id., ¶¶ 10, 13-14. Although the
administrative judge did not have the benefit of Singh when he issued the initial
decision, we find that he properly determined that the appellant failed to make an initial
showing that the agency treated similarly situated employees differently and thus did
not establish her disparate penalty claim. ID at 56.
15
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.
18

(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).
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
19

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (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:
20

Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 16 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:

16
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by t he President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of comp etent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
21

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.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9838614. Public record. Not legal advice.