Opinion

Eveline Emmenegger v. Department of the Interior

Court: Merit Systems Protection Board
Filed: Dec 18, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 14.6%

holding that the Board may overturn credibility determinations only when it has “sufficiently sound” reasons for doing so

How later courts described this case

holding that the Board may overturn credibility determinations only when it has “sufficiently sound” reasons for doing so

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

EVELINE J. EMMENEGGER, DOCKET NUMBER

Appellant, SF-0432-21-0258-I-1

DEPARTMENT OF THE INTERIOR, DATE: December 18, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Peter T. Jenkins and Kevin Bell , Silver Spring, Maryland, for the appellant.

Jeff Ruch and Paula Dinerstein, Washington, D.C., for the appellant.

Emily Bright Hays , Washington, D.C., for the agency.

Kevin Mack , Sacramento, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

petition for review of the initial decision, which found that the appellant proved

her affirmative defense of whistleblower retaliation, that the agency failed to

prove by clear and convincing evidence that it would have taken the personnel

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

actions even in the absence of the appellant’s protected disclosures, and that it

effectively restored her to status quo ante. Generally, we grant petitions such as

these only in the following circumstances: the initial decision contains erroneous

findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous application of the law to

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

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affected the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that neither party

has established any basis under section 1201.115 for granting the petition or cross

petition for review. Therefore, we DENY the petition for review and the cross

petition for review. Except as expressly MODIFIED to address the alternative to

the knowledge/timing test set forth in Dorney and to address the analysis of the

Carr factors, we AFFIRM the initial decision.

BACKGROUND

¶2 The appellant is a GS-12 Research Microbiologist in the Western Fisheries

Research Center of the agency’s U.S. Geological Survey in Seattle, Washington.

Initial Appeal File (IAF), Tab 6 at 7, 10. As a Research Microbiologist, the

appellant was responsible for developing research projects to improve the

detection and diagnosis of fish pathogens, understand the biology of fish

pathogens; develop concepts and methodologies that control pathogens to reduce

losses in fish populations due to disease, and determining the critical factors

involved with fish immune system as it relates to host-pathogen interactions.

IAF, Tab 35 at 5. According to the agency, the appellant’s position is considered

a Research Grade Evaluation (RGE) Scientist position. Id. at 103, 123.

On October 16, 2019, the agency placed the appellant on a Notice of

Unacceptable Performance and Opportunity to Demonstrate Acceptable

Performance (NODAP), which served as a performance improvement plan (PIP),

based on unsatisfactory performance in critical element (4) Science

Communicated. Id. at 147, 178-82. The NODAP was in place from October 16

until November 20, 2019. Id. On January 29, 2020, her first-level supervisor

notified the appellant that she had failed to demonstrate acceptable performance

during the NODAP period and proposed her removal. IAF, Tab 36 at 350-56.

After the appellant responded, id. at 363-91, 394-402, the deciding

official removed the appellant from her position effective March 5, 2021, IAF,

Tab 41 at 92-104.

¶3 On March 22, 2021, the appellant filed the instant Board appeal challenging

her removal and requesting a hearing. IAF, Tab 1. The appellant alleged that her

removal was the result of whistleblower retaliation. Id. at 7, 15. Subsequently,

by letter dated April 9, 2021, the agency rescinded her removal and reinstated her

to the Research Microbiologist or RGE Scientist position effective May 9, 2021. 2

IAF, Tab 6 at 10. Thereafter, the administrative judge determined that a hearing

was necessary to address whether the agency returned the appellant to status quo

ante and her whistleblower retaliation affirmative defense. 3 IAF, Tab 22 at 1.

Following a hearing, the administrative judge issued an initial decision finding

that the appellant proved her affirmative defense. IAF, Tab 112, Initial Decision

(ID) at 2, 68, 72. He found that she proved disclosures (3), (10), (12), and (15)

were protected disclosures under 5 U.S.C. § 2302(b)(8) and disclosure (9) was

protected activity under 5 U.S.C. § 2302(b)(9). ID at 17, 29, 38, 42, 50. He also

The agency rescinded the appellant’s removal after receiving an initial decision that

found the Office of Personnel Management had not approved its performance appraisal

system. IAF, Tab 112, Initial Decision (ID) at 58-59; See Laminack v. Department of

the Interior, MSPB Docket No. DA-0432-20-0177-I-1, Initial Decision at 1, 12-15

(Mar. 10, 2021).

The administrative judge identified, and the parties did not dispute, that the appellant

asserted that she made 17 disclosures. ID at 9 n.5; IAF, Tab 73.

found that she proved contributing factor and the agency failed to prove by clear

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

protected disclosure or activity. ID at 61-68. However, the administrative judge

concluded that the agency provided her with status quo ante relief. ID at 69-72.

Therefore, he did not award the appellant interim relief or back pay. ID at 72.

¶4 The agency has filed a petition for review, largely arguing that the

administrative judge erred in finding that it failed to prove by clear and

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

protected disclosure or activity. Petition for Review (PFR) File, Tab 1 at 11-23.

The appellant has filed a cross petition for review, arguing in part that the

administrative judge erred in finding that some of her disclosures were not

protected. PFR File, Tab 3 at 20-28. The appellant has also responded to the

agency’s petition for review. Id. at 7-20. The agency has filed a response to the

appellant’s cross petition for review and a reply to the appellant’s response to its

petition for review. PFR File, Tabs 5-6. 4

DISCUSSION OF ARGUMENTS ON REVIEW

The agency’s petition for review presents no basis for disturbing the

administrative judge’s finding of reprisal for whistleblowing.

¶5 The agency has shown no error in the initial decision. PFR File, Tab 1.

When whistleblower retaliation claims are made in the context of an otherwise

appealable action, as here, the appellant must prove by preponderant evidence

that she made a protected disclosure or engaged in protected activity and that the

The appellant has also filed a motion for leave to file a reply to the agency’s response

to her cross petition for review. PFR File, Tab 8. The Office of the Clerk of the Board

acknowledged the appellant’s motion but explained that the Board’s regulations do not

provide for pleadings other than a petition for review, a cross petition for review, a

response to the petition for review or cross petition for review, and a reply to a response

to a petition for review. PFR File, Tab 9 (citing 5 C.F.R. § 1201.114(a)(5)). It

informed the appellant that the Board would decide to grant or deny her request. Id.

at 1. We have reviewed the appellant’s motion for leave to file a reply to the agency’s

response but are not persuaded by her argument regarding the need for the additional

submission. 5 C.F.R. § 1201.114(a)(5). Accordingly, the appellant’s motion is denied.

disclosure or activity was a contributing factor in the personnel action at issue.

Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶ 49. If the

appellant makes this showing, the burden shifts to the agency to prove by clear

and convincing evidence that it would have taken the personnel action absent the

protected disclosure or activity. Id. If the agency fails to meet its clear and

convincing evidentiary burden, the Board shall grant the appellant corrective

action. 5 U.S.C. § 1221(e)(1)-(2).

¶6 The administrative judge found that the appellant presented a prima facie

case of whistleblower reprisal. ID at 61-62. In particular, he first found that the

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

activity protected under 5 U.S.C. § 2302(b)(9)(C). Id. The administrative judge

next found that the appellant satisfied the contributing factor criterion through the

knowledge/timing test because the proposing official knew of protected

disclosures (3) and (10), and both the NODAP and proposed removal occurred

within 2 years of those protected disclosures. Id.; Mastrullo v. Department of

Labor, 123 M.S.P.R. 110, ¶¶ 18, 21 (2015) (stating that the contributing factor

element can be shown if the personnel action occurred within 1 to 2 years after

the protected disclosure). On review, the parties do not dispute that the appellant

made protected disclosures (3) and (10) under 5 U.S.C. § 2302(b)(8) or that such

disclosures were a contributing factor in her removal, and we discern no basis to

disturb these findings. PFR File, Tab 1.

¶7 Although not raised by the parties on review, the administrative judge

concluded that the appellant failed to meet the knowledge/timing test with respect

to protected disclosure (12) and protected activity (9). ID at 61-62. He reasoned

that there was no indication that the officials taking the action were aware of the

protected disclosure and activity, therefore the appellant failed to establish that

they were a contributing factor in her removal. Id. However, the

knowledge/timing test is not the only way an appellant can establish contributing

factor. Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 14 (2012). The

Board has held that, if an administrative judge determines that an appellant has

failed to satisfy the knowledge/timing test, he shall consider other evidence, such

as evidence 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 whether they had a desire or motive to

retaliate against the appellant. Id., ¶ 15. Any weight given to a whistleblowing

disclosure, either alone or in combination with other factors, can satisfy the

contributing factor standard. Id. Because the administrative judge did not

address whether the appellant proved contributing factor using the types of

evidence set forth in Dorney, we modify the initial decision to do so.

¶8 Regarding the strength of the agency’s reasons for removing the appellant,

as further explained below, we find its reasons to be weak. Regarding whether

the protected disclosures and activity was directed at the officials involved in the

removal action, the proposing official was named in the appellant’s Scientific

Integrity Complaint which is the subject of protected activity (9). ID at 27-28.

Regarding whether those responsible for the removal had a desire or motive to

retaliate against the appellant, the findings in the Scientific Integrity Complaint

identified issues that implicate the proposing official’s managerial and

supervisory capabilities. IAF, Tab 42 at 22-26. As such, the appellant’s

protected activity is sufficient to establish substantial retaliatory motive. See

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

However, protected disclosure (12) does not appear to be directed at any

individual and the record lacks evidence of a motive to retaliate based on this

disclosure. ID at 40-42. Thus, we find the appellant established that her

protected activity was a contributing factor in her removal.

¶9 To the extent that the administrative judge did not address the Dorney

factors, he erred. However, because he properly found the appellant otherwise

established contributing factor in the agency’s action, any such error was

harmless. See Panter v. Department of the Air Force , 22 M.S.P.R. 281, 282

(1984) (explaining that an adjudicatory error that is not prejudicial to a party’s

substantive rights provides no basis for reversal of an initial decision).

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

removed the appellant absent her protected disclosures.

¶10 Because the administrative judge found that the appellant established a

prima facie case of whistleblower reprisal, the burden shifted to the agency to

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

action in the absence of the appellant’s protected disclosures. Pridgen,

2022 MSPB 31, ¶ 49. 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).

¶11 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

protected activity, the Board will consider all of the relevant factors, including

the following factors (“Carr factors”): (1) the strength of the agency’s evidence

in support of its action; (2) the existence and strength of any motive to retaliate

on the part of the agency officials who were involved in the decision; and (3) any

evidence that the agency takes similar actions against employees who did not

engage in such protected activity, 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 the Carr 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. Soto,

2022 MSPB 6, ¶ 13. The Board must consider all the evidence, including

evidence that detracts from the conclusion that the agency met its burden.

Id., ¶ 11; see also Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed.

Cir. 2012).

¶12 The administrative judge analyzed these factors and concluded that the

agency did not have strong evidence that it found “the appellant’s performance so

deficient that it warranted removal.” ID at 62-68. On review, the agency

challenges this finding and argues that the administrative judge made erroneous

findings of material fact and improperly weighed the evidence in his

decision, particularly as it pertains to his analysis of the first Carr factor.

PFR File, Tab 1 at 11-23. We are not persuaded.

¶13 In the initial decision, the administrative judge placed the most weight on

the first Carr factor which he found weighed in the appellant’s favor. 5 ID at 65.

He concluded that the agency did not prove all of the elements of its

performance-based removal under chapter 43. ID at 62-64; Lee v. Department of

Veterans Affairs, 2022 MSPB 11, ¶ 15. Specifically, he found that the agency did

not prove that the appellant’s performance remained unacceptable after

an adequate improvement period. ID at 64-65; Lee, 2022 MSPB 11, ¶ 15. In so

finding, he reasoned that under the higher clear and convincing standard, there is

evidence that the appellant’s manuscript submitted during the NODAP was

acceptable and published with revisions consistent with the usual journal

publication process following her return to work. ID at 64-65.

¶14 The Board has held that an agency need not establish the strength of its

reasons under Carr factor 1 by any particular quantum of evidence, nor must it

prove the elements of its charges by clear and convincing evidence. Soto,

2022 MSPB 6, ¶ 13 & n.4. Therefore, the administrative judge erred to the extent

he required the agency to prove the elements of its chapter 43 removal by clear

and convincing evidence. ID at 64-65. For the reasons set forth below, however,

we find that any such error was not prejudicial.

Although the agency rescinded the removal, the administrative judge considered the

strength of its reasons for taking the action in his evaluation of Carr factor 1. ID at 62.

¶15 The agency asserts that it had strong evidence in support of its conclusion

that the appellant’s performance was unacceptable because the appellant’s

NODAP manuscript was published only after it went through significant edits and

added a co-author. PFR File, Tab 1 at 12-23. While the appellant admittedly

made revisions to her manuscript before its publication, Hearing Transcript (HT),

Day 4 at 29-30, 228, 248, 252, the agency appears to mischaracterize the record

evidence to support its argument that her manuscript was deficient, PFR File,

Tab 1 at 13. For example, the agency asserts that when the appellant returned to

work, she edited the NODAP manuscript before submitting it to her new

supervisor who still considered it to be in draft format. Id. at 13. The agency

characterizes his testimony as though he stated her manuscript was not ready to

be sent for publication. However, her supervisor testified that while he thought

“there was probably a more elegant way to look at the data,” he thought it was

fine to send to a journal. HT, Day 3 at 104-05.

¶16 The agency also points to the appellant’s testimony and asserts that “[she]

explained that the journal sent her ‘moderate to major revisions,’” after which

she enlisted a co-author who, according to the agency, “contributed to the

necessary statistical revisions that she was unable or unwilling to complete.”

PFR File, Tab 1 at 13-14. It also asserts that “[the manuscript] still contained

significant statistical deficiencies and no co-author when [the] [a]ppellant first

submitted it to the [j]ournal.” 6 Id. at 14. Nonetheless, during her testimony, the

appellant explained that she made minor edits before submitting it to the journal

and in turn the journal sent her moderate revisions in the first round. HT, Day 4

at 27-30, 225-32, 248, 252. She also explained she solicited a co-author to

complete a supplemental analysis using a different methodology to confirm her

statistical analysis was correct. 7 Id. at 228-33. The record lacks evidence to

The record lacks evidence that the journal considered the appellant’s statistical

analysis to be “significantly deficient” as the agency suggests. IAF, Tab 83 at 57-59.

The agency appears to assert that the appellant admitted that her former supervisor

advised her to enlist a co-author to conduct such an analysis. PFR File, Tab 1 at 14;

support that the co-author made any statistical revisions as the agency appears to

claim. PFR File, Tab 1 at 13-14.

¶17 The agency further argued that the administrative judge erred in “plac[ing]

enormous weight on [an] out-of-court, unsworn statement.” 8 PFR File, Tab 1

at 15-16. To support its removal action, the agency heavily relied on deficiencies

identified in the appellant’s NODAP manuscript by the proposing official and an

external reviewer. 9 IAF, Tab 35 at 311-14, Tab 36 at 60-74, Tab 41 at 92-103.

However, as the administrative judge acknowledged, there is evidence in the

record that the appellant’s manuscript was acceptable. ID at 64-65. This

evidence is not limited to the internal review that the administrative judge

explicitly identified in the initial decision. ID at 65. Particularly of note is the

external reviewer’s feedback, wherein he states, amongst other things, that “[the]

paper clearly represents a great deal of careful work and analysis,” and “[w]ith

some simplification to the figures and discussion the paper is publishable.” IAF,

Tab 35 at 313-14. This is consistent with the assessment of the internal reviewer

finding the manuscript “in great shape.” IAF, Tab 35 at 316. Thus, in examining

the strength of the evidence in support of the agency’s removal action, we find

the agency’s evidence that the appellant’s performance remained deficient after

the NODAP period to be weak. Accordingly, we agree with the administrative

judge that this factor favors the appellant.

¶18 We next consider the second Carr factor, the strength of any motive to

retaliate on the part of any agency officials who were involved in the decision in

question. We have found that “[t]hose responsible for the agency’s performance

HT, Day 4 at 251. However, the appellant explains that she wanted to compare the

newer analysis to the older analysis that her former supervisor told her to perform. HT,

Day 4 at 251.

The agency characterizes the internal review finding the appellant’s NODAP

manuscript “in great shape” as the “out-of-court, unsworn statement.” PFR File, Tab 1

at 15; IAF, Tab 35 at 316-17.

The deciding official testified that the external review had a substantial impact on his

removal decision. HT, Day 2 at 184.

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 (quoting Whitmore, 680 F.3d at 1370); Smith v. Department

of the Army, 2022 MSPB 4, ¶¶ 28-29 (same). The administrative judge

determined that this factor weighed in favor of the agency, reasoning, amongst

other things, that its action to respond to the appellant’s protected disclosures did

not indicate a motive to retaliate and that the investigation into one of the

appellant’s complaints did not find specific misconduct by the officials involved

in her removal. ID at 65-67.

¶19 Though not disputed by the parties on review, we find the administrative

judge took an overly restrictive view of the second Carr factor. In particular,

he did not address whether the appellant’s disclosure reflected on the responsible

officials in their capacities as managers and employees, which is sufficient to

establish a substantial retaliatory motive even when the disclosure does not

directly implicate or harm them. See Chavez, 120 M.S.P.R. 285, ¶ 33. However,

because we agree with the administrative judge’s ultimate disposition of this

appeal, we further find that, to the extent he erred in addressing the institutional

motive to retaliate, any such error did not prejudice the appellant’s substantive

rights. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).

¶20 Turning to the third Carr factor—whether the agency takes similar actions

against employees who are not whistleblowers but who are otherwise similarly

situated—the administrative judge found that the agency presented evidence that

it placed similarly situated non-whistleblowers on a NODAP. ID at 67-68. Thus,

he concluded this factor weighed in favor of the agency. Id. However, the

agency presented no evidence that it removed any similarly situated

non-whistleblowers from Federal service.

¶21 The absence of evidence on Carr factor 3 can either be neutral or “cut[]

slightly against the Government,” depending on the circumstances . Miller v.

Department of Justice, 842 F.3d 1252, 1262 (Fed. Cir. 2016) (citing Whitmore v.

Department of Labor, 680 F.3d 1353, 1374 (Fed. Cir. 2012)). The agency “is

required to come forward with all reasonably pertinent evidence” regarding this

factor because it has greater access to such information. Whitmore, 680 F.3d

at 1374-75. The agency does not have an affirmative burden to produce evidence

concerning each and every Carr factor, including Carr factor 3, but the absence

of any evidence relating to Carr factor 3 can effectively remove that factor from

the analysis, and may well cause the agency to fail to prove its case overall. Id.

Thus, given the lack of evidence that similarly situated non -whistleblowers were

removed, we modify this initial decision to find that Carr factor 3 does not weigh

in favor of the agency. Nonetheless, considering all of the Carr factors, we agree

with the administrative judge that the agency failed to meet its burden of proving

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

action absent the appellant’s protected disclosures. ID at 68; Soto, 2022 MSPB 6,

¶ 11; see also Whitmore, 680 F.3d at 1368. We therefore agree with the

administrative judge that the appellant proved her affirmative defense of

whistleblower retaliation. ID at 68.

The agency’s remaining argument provides no basis to disturb the initial decision.

¶22 On review, the agency also argues that the administrative judge

inadequately analyzed and improperly weighed relevant evidence and testimony.

PFR File, Tab 1 at 16-20. Specifically, it argues that the administrative judge

“completely failed to even acknowledge, let alone consider” the deciding

official’s removal analysis or his testimony. Id. The agency also challenges the

administrative judge’s credibility findings as it relates to its witnesses and the

appellant. Id. at 20-23. In particular, the agency claims that the administrative

judge found its witnesses credible, while finding against the credibility of the

appellant, but “gave unfettered credence” to the appellant in concluding that Carr

factor 1 weighed in her favor. Id. at 22-23. However, the record is devoid of

evidence that the administrative judge found that the appellant lacked credibility.

¶23 Having considered the agency’s arguments on review, which largely

constitute mere disagreement with the administrative judge’s findings, we discern

no reason to reweigh the evidence or substitute our assessment of the record

evidence for that of the administrative judge. See Crosby v. U.S. Postal Service,

74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative

judge's findings when she considered the evidence as a whole, drew appropriate

inferences, and made reasoned conclusions on issues of credibility); Broughton v.

Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987); see

also Haebe v. Department of Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002)

(holding that the Board may overturn credibility determinations only when it has

“sufficiently sound” reasons for doing so). The administrative judge’s failure to

discuss in depth all aspects of the deciding official’s analysis and hearing

testimony does not mean that he did not consider them and is not a basis to

overturn his well-reasoned findings. See Marques v. Department of Health and

Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir.

1985) (Table).

The appellant’s cross petition for review is denied.

¶24 In her cross petition for review, the appellant argues that the administrative

judge erred in finding that the agency restored her to status quo ante. PFR File,

Tab 3 at 20-22. Returning an appellant to the status quo ante means placing her

as nearly as possible in the same situation that she would have been in if the

action rescinded had never occurred. Fairley v. U.S. Postal Service, 63 M.S.P.R.

10, 12 (1994). Status quo ante relief includes cancelling the action; reinstating

the appellant to her former position or other substantially equivalent position, as

appropriate; back pay; interest on back pay; and other employment benefits that

she would have received had the action not occurred. Samble v. Department of

Defense, 98 M.S.P.R. 502, ¶ 15 (2005). The administrative judge found, and the

appellant does not dispute that the agency rescinded her removal, paid her back

pay with interest, processed a within-grade-increase, processed Thrift Saving Plan

contributions, removed the removal from her personnel file, and returned the

appellant to the performance standards that were in place prior to her removal.

ID at 69. Thus, we discern no basis for disturbing this finding.

¶25 Instead, the appellant argues that she has not been restored to status quo

ante because her duties differ from those that she held before her removal.

PFR File, Tab 3 at 20. Specifically, she reasserts on review that the agency

refused to restore her to the committees she previously served on, forbade

her from resuming her old duties, and required her to raise her own funding.

Id. at 21-22; IAF, Tab 109 at 16-18. In finding that the agency effectively

restored the appellant to her position as an RGE Scientist with the full range of

duties, the administrative judge concluded that the agency restructured the

committees the appellant served on before its proposed removal and the old duties

to which she referred were collateral duties. Id. at 71. He also credited the

testimony of her new supervisor that RGE Scientists are required to obtain

funding. Id. The appellant’s assertions on review constitute mere disagreement

with the administrative judge’s findings, which we find no reason to disturb.

Crosby, 74 M.S.P.R. 98, 105-06; Broughton, 33 M.S.P.R. 357, 359.

The appellant’s remaining arguments on review do not provide a basis for

reversing the initial decision.

¶26 To the extent that the appellant challenges the administrative judge’s

findings that disclosures (6), (11), (13), and (14) were not protected, her

argument is unpersuasive. PFR File, Tab 3 at 23-24. Her primary concern in this

regard is that she would be able to obtain additional damages if the administrative

judge did not err in finding these disclosures to be not protected. Id. at 24.

However, for the reasons explained in the initial decision, we agree with the

administrative judge that disclosures (6), (11), (13), and (14) were not protected.

ID at 38, 43-44, 47-48.

¶27 We also find unpersuasive the appellant’s argument that the administrative

judge erred in denying all her witnesses who were not also agency witnesses.

PFR File, Tab 3 at 25-27. An administrative judge has wide discretion to control

the proceedings, including the authority to exclude testimony he believes would

be irrelevant, immaterial, or unduly repetitious. Parker v. Department of

Veterans Affairs, 122 M.S.P.R. 353, ¶ 21 (2015). The appellant has not shown

the administrative judge abused her discretion in denying her request for certain

witnesses or in otherwise controlling the hearing-related proceedings.

¶28 An administrative judge also has broad discretion in ruling on discovery

matters, and absent an abuse of discretion, the Board will not find reversible error

in such rulings. E.g., Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 16

(2016). The appellant alleges that “[the administrative judge] denied [her] the

opportunity to take any discovery in his procedural ruling of February 3, 2022.”

PFR File, Tab 3 at 27-28. However, the administrative judge did not deny the

appellant the opportunity to engage in discovery. Instead, he denied her

discovery request because she failed to initiate discovery within the specified

time limit. IAF, Tab 31 at 3-7. Thus, she has not shown that the administrative

judge abused his considerable discretion in this regard.

¶29 Accordingly, we deny the petition for review and cross petition for review

and affirm the initial decision as modified by this Order.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR

COMPENSATORY DAMAGES

You may be entitled to be paid by the agency for your consequential

damages, including medical costs incurred, travel expenses, and any other

reasonable and foreseeable consequential damages. To be paid, you must meet

the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may

be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.

In addition, the Whistleblower Protection Enhancement Act of 2012

authorized the award of compensatory damages including interest, reasonable

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

to receive.

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

consequential damages and/or compensatory damages WITHIN 60 CALENDAR

DAYS OF THE DATE OF THIS DECISION. You must file your motion with the

office that issued the initial decision on your appeal.

NOTICE TO THE PARTIES

A copy of the decision will be referred to the Special Counsel “to

investigate and take appropriate action under [5 U.S.C.] section 1215,” based on

the determination that “there is reason to believe that a current employee may

have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or

section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note that

while any Special Counsel investigation related to this decision is pending, “no

disciplinary action shall be taken against any employee for any alleged prohibited

activity under investigation or for any related activity without the approval of the

Special Counsel.” 5 U.S.C. § 1214(f).

NOTICE OF APPEAL RIGHTS 10

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

Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

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

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

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

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

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

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

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

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

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

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

chosen forum.

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

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

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

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

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

§ 7703(b)(1)(A).

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:

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.

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 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:

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. 11 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