Opinion

Robert Marsden v. Environmental Protection Agency

Court: Merit Systems Protection Board
Filed: Feb 13, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.2%

finding triple hearsay to be “highly unreliable”

How later courts described this case

finding triple hearsay to be “highly unreliable”
outlining that, when analyzing the second Carr factor, the Board should have considered, amongst other things, that the disclosures “embarrassed” the management officials implicated

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROBERT J. MARSDEN, DOCKET NUMBER

Appellant, DE-1221-14-0298-W-3

ENVIRONMENTAL PROTECTION DATE: February 13, 2024

AGENCY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Lauren M. Drabic , Esquire, and Robert C. Seldon , Esquire, Washington,

D.C., for the appellant.

Edward O. Sweeney , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

The appellant has filed a petition for review and the agency has filed a

cross petition for review of the initial decision, which denied the appellant’s

request for corrective action in this individual right of action (IRA) appeal.

Generally, we grant petitions such as these only in the following circumstances:

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 by this Final Order to

clarify and supplement the analysis of the agency’s affirmative defense, we

AFFIRM the initial decision.

BACKGROUND

The appellant was a GS-13 Special Agent for the agency. Marsden v.

Environmental Protection Agency, MSPB Docket No. DE-1221-14-0298-W-1,

Initial Appeal File (IAF), Tab 1 at 1. His permanent duty station was the Denver

Area Office, but during the relevant time period, the appellant was on temporary

assignment in Montana. Hearing Transcript (Tr.), Day 2 at 33, 35, 39-40

(testimony of the appellant). The appellant’s supervisory chain was as follows:

(1) the Denver Special Agent in Charge (SAC); (2) the Criminal Investigation

Division (CID) Deputy Director; (3) the CID Director; and (4) the Director of the

Office of Criminal Enforcement, Forensics, and Training (OCEFT). Tr., Day 1

at 60, 75 (testimony of the appellant); Tr. Day 2 at 23 (testimony of the

Denver SAC).

Between July 6 and September 1, 2010, the appellant made several

disclosures, stating that CID Director H had violated longstanding agency policy

by allowing two married agents in Montana to work under the same supervisor.

Marsden v. Environmental Protection Agency, MSPB Docket No. DE-1221-14-

0298-W-3, Appeal File (W3-AF), Tab 14 at 51, 55; Tr., Day 1 at 53-57, 62-66,

75-77 (testimony of the appellant). The appellant made these disclosures to the

Denver SAC, the CID Deputy Director, the OCEFT Director, and the CID

Director herself. Tr., Day 1 at 53-57, 62-66, 75-77 (testimony of the appellant).

In or around early September 2010, the agency announced GS-14 Assistant

Special Agent in Charge (ASAC) vacancies in Denver, Colorado, Seattle,

Washington, and Kansas City, Missouri. Tr., Day 2 at 47-48 (testimony of the

Denver SAC). The appellant applied for both the Seattle and Denver positions,

although he was really only interested in Denver. W-3 AF, Tab 14 at 77-99. 2

From September 20 through 22, 2010, a five-member panel conducted

interviews. 3 Id. at 112-14. The interview panel rated the top three candidates in

the following order— (1) ASAC M, (2) the appellant, and (3) ASAC O. Id.

at 114. On September 23, 2023, the panel unanimously recommended that

ASAC M be selected for Denver and the appellant be selected for Seattle. Id. No

candidate was recommended for Kansas City because the Kansas City SAC

decided that he did not want to fill the position at that time. W-3 AF, Tab 14

at 114.; Tr., Day 2 at 48-49. Therefore, the third-ranking candidate, ASAC O,

was not recommended for any position. The panel forwarded its recommendation

to the CID Director, and she discussed the recommendation with the OCEFT

According to the appellant, both the CID and OCEFT Directors told him that he

should apply for positions outside of Denver, and particularly recommended that he

apply for the opening in Seattle. Tr., Day 1 at 77, 84, 181-82 (testimony of the

appellant); Tr., Day 2 at 139 (testimony of the OCEFT Director). Nevertheless, the

appellant testified that the individuals involved in the selection were all aware that he

would prefer the Denver job. Tr., Day 1 at 116, 181 (testimony of the appellant).

The interview panel was comprised of SACs and ASACs from various offices. The

Denver SAC was chair of the panel. W-3 AF, Tab 14 at 113-14.

Director, who was the selecting official. Tr., Day 2 at 92-97 (testimony of the

CID Director), 136 (testimony of the OCEFT Director).

Despite the panel’s recommendation, neither the CID Director nor the

OCEFT Director wanted to reassign ASAC M to Denver because the agency had

just recently assigned him to Chicago, and his departure from that office would

have been expensive and disruptive. Id. at 92-98 (testimony of the CID Director),

136-38 (testimony of the OCFET Director). Therefore, the remaining top two

candidates were the appellant and ASAC O. After considering the matter and

discussing it with the CID Director, the OCEFT Director decided to assign the

appellant to Seattle and ASAC O to Denver. Id. at 103-04 (testimony of the CID

Director).

The CID Director notified the Denver SAC of this determination. Id.

at 58-59 (testimony of the Denver SAC), 101 (testimony of the CID Director).

The Denver SAC adamantly objected to working with ASAC O. She stated that,

with ASAC M out of the picture, her next choice for Denver ASAC would be the

appellant. Id. at 60-62, 66 (testimony of the Denver SAC), 101 (testimony of the

CID Director). The CID Director told the Denver SAC that she would have the

opportunity to express her reservations to the OCEFT Director that afternoon,

before he finalized his decision. Id. at 63 (testimony of the Denver SAC), 101-02

(testimony of the CID Director). However, 45 minutes later, the Denver SAC

received a telephone call from agency headquarters, notifying her that the OCEFT

Director had already made his final decision and had selected the appellant for

Seattle and ASAC O for Denver. Tr., Day 2 at 63-64 (testimony of the Denver

SAC); see W-3 AF, Tab 14 at 115-16.

The appellant filed a complaint with the Office of Special Counsel (OSC),

raising several claims of whistleblower retaliation. IAF, Tab 7 at 4-19. Among

other things, he alleged that the ASAC selection decision was in retaliation for

his disclosing violations of the agency’s relatives policy. 4 IAF, Tab 7 at 4-19.

OSC closed the complaint without taking corrective action, and the appellant filed

an IRA appeal. IAF, Tab 1, Tab 12 at 26.

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

the appellant’s request for corrective action. W3-AF, Tab 31, Initial Decision

(ID). The administrative judge found that the appellant proved that he made a

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

decision. ID at 5-7. Nevertheless, he found that the agency proved by clear and

convincing evidence that it would have taken the same action even in the absence

of the appellant’s disclosure. ID at 7-9.

The appellant has filed a petition for review, disputing the administrative

judge’s analysis of the agency’s affirmative defense. Petition for Review (PFR)

File, Tab 4. The agency has filed a response in opposition to the appellant’s

petition for review, as well as a cross petition for review challenging the

administrative judge’s analysis of the appellant’s case in chief. PFR File, Tab 6.

The appellant has filed a response to the agency’s cross petition for review. PFR

File, Tab 10.

ANALYSIS

To prevail in an IRA appeal before the Board, an appellant must establish a

prima facie case of whistleblower retaliation by proving by preponderant

evidence that he made a protected disclosure that was a contributing factor in a

personnel action taken against him. 5 5 U.S.C. § 1221(e)(1) (2011); Scoggins v.

Although the appellant’s OSC complaint raised multiple distinct claims, the instant

appeal concerns only the ASAC selection decision. W-3 AF, Tab 24 at 2.

The initial decision refers to the Whistleblower Protection Enhancement Act of 2012

(WPEA), Pub. L. No. 112–199, 126 Stat. 1465. ID at 5. With exceptions not pertinent

to this IRA appeal, because the events at issue all occurred before its December 27,

2012 enactment, the WPEA does not apply. See, e.g., Miller v. Federal Deposit

Insurance Corporation, 122 M.S.P.R. 3, ¶ 15, n.5 (2014), aff’d, 626 F. App’x 261 (Fed.

Cir. 2015). Nevertheless, we find that the statutory amendments of the WPEA would be

immaterial to the dispositive issues in this appeal. See Panter v. Department of the Air

Department of the Army, 123 M.S.P.R. 592, ¶ 21 (2016). If the appellant meets

that burden, then the Board shall order such corrective action as it considers

appropriate unless the agency shows by clear and convincing evidence that it

would have taken the same personnel action in the absence of the protected

disclosure. 5 U.S.C. § 1221(e)(1)-(2) (2011); Scoggins, 123 M.S.P.R. 592, ¶ 26.

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

whistleblowing, the Board will consider all of the relevant evidence, including the

following factors: the strength of the agency’s evidence in support of its 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. Carr v. Social Security Administration, 185 F.3d

1318, 1323 (Fed. Cir. 1999); Parikh v. Department of Veterans Affairs, 116

M.S.P.R. 197, ¶ 36 (2011).

The appellant made a protected disclosure that was a contributing factor in the

agency’s decision not to select him for the Denver ASAC position.

As noted above, the agency filed a cross petition for review challenging the

administrative judge’s finding that the appellant established his prima facie case

of reprisal for protected whistleblowing activity. PFR File, Tab 6 at 5-9. A

protected disclosure for purposes of whistleblowing is one that the appellant

reasonably believed evidenced gross mismanagement, a gross waste of funds, an

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

any violation of law, rule, or regulation. 5 U.S.C. § 2302(b)(8)(A) (2011);

Scoggins, 123 M.S.P.R. 592, ¶ 11. A reasonable belief exists if a disinterested

observer with knowledge of the essential facts known to and readily ascertainable

by the appellant could reasonably conclude that the actions of the Government

Force, 22 M.S.P.R. 281, 282 (1984).

evidence one of the categories of wrongdoing listed in section 2302(b)(8)(A).

Scoggins, 123 M.S.P.R. 592, ¶ 11.

We agree with the administrative judge that the appellant disclosed a

violation of the agency’s rule proscribing employees married to each other from

working for the same first-level supervisor. ID at 3, 5; IAF, Tab 14 at 87-90.

Moreover, for the following reasons, we are not persuaded by the agency’s

argument that the appellant lacked a reasonable belief that he was disclosing a

violation of the rule because the violation, which it contends was widely known,

had been remedied at the time of his disclosure. PFR File, Tab 6 at 6. The

agency argues on review that the violation, i.e., married employees serving under

the same first-line supervisor, had been cured a year and a half before the

appellant made his alleged disclosure, leaving him “nothing to blow the whistle

about.” PFR File, Tab 6 at 5. It argues that under the administrative judge’s

rubric an employee could make a protected disclosure “by ‘disclosing’ any rule

violation that ever occurred in the history of the agency.” Id. at 6.

The administrative judge found that, even though the violation itself had

ceased and it was widely known that the couple in question worked for the same

supervisor, the fact that it violated agency policy was not widely known, and the

violation had occurred recently enough that it was reasonable for the appellant to

disclose it. ID at 6. We agree. Regardless of whether the violation had ceased,

its occurrence is not in dispute. Moreover, the statute makes it a prohibited

personnel practice to take or fail to take a personnel action because of “any

disclosure of information by an employee or applicant which the employee or

applicant reasonably believes evidences — (i) a violation of any law, rule, or

regulation.” 5 U.S.C. § 2302(b)(8)(A)(i) (2011). It does not require that the

violation be ongoing nor does it explicitly exclude violations that have ceased.

Id. Therefore, we find that the agency’s arguments provide no basis to disturb the

administrative judge’s findings in this regard.

The administrative judge also correctly found that the appellant’s

disclosure was a contributing factor in the personnel action at issue—the decision

not to select him for the Denver ASAC position. ID at 6-7; see 5 U.S.C.

§ 2302(a)(2)(A)(ii) (2011) (defining “personnel action” to include “promotion”).

The record reflects that the selection was made no later than 4 months after the

relevant officials learned of the appellant’s disclosure, a temporal proximity

sufficient to satisfy the knowledge/timing test. ID at 7; Tr., Day 2 at 131-33

(testimony of the OCEFT Director); see, e.g., Linder v. Department of Justice,

122 M.S.P.R. 14, ¶ 17 (2014) (finding that an interval of approximately 4 months

was sufficient to satisfy the timing prong of the knowledge/timing test). Thus, we

agree with the administrative judge that the appellant made a protected disclosure

that was a contributing factor in the agency’s selection decision, and we deny the

agency’s cross petition for review.

The agency established by clear and convincing evidence that it would have made

the same selection absent the appellant’s protected disclosures.

We now consider the three Carr factors, set forth above, to determine

whether the agency established by clear and convincing evidence that it would

have made the same decision absent the appellant’s disclosure. See Carr,

185 F.3d at 1323. 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 the factors together to determine whether the evidence is clear and

convincing as a whole. E.g., Mithen v. Department of Veterans Affairs,

122 M.S.P.R. 489, ¶ 36 (2015), aff’d, 652 F. App’x 971 (Fed. Cir. 2016) (Table).

Crucial to this analysis, the Board must consider all of the evidence, including

that which fairly detracts from the conclusion that the agency met its burden.

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

The agency’s evidence in support of its decision

The first Carr factor concerns the strength of the agency’s evidence in

support of its decision. Carr, 185 F.3d at 1323. The administrative judge found

that, although the relevant officials knew of the appellant’s history and

connections to Denver, they offered credible reasons for placing him in Seattle

instead. ID at 7. Specifically, the interview panelists, none of whom the

appellant alleges were retaliating against him, unanimously recommended him for

the Seattle position. W-3 AF, Tab 14 at 113-14. We agree with the

administrative judge that this unequivocal recommendation from an impartial

panel lends strong support to the OCEFT Director’s ultimate decision. ID at 7.

Furthermore, the administrative judge accurately recounted the deciding official’s

testimony as to why he agreed with the recommendation. ID at 7-8. Specifically,

the OCEFT Director testified that he was concerned about the quality of training

and supervision available at the Denver office, so he preferred to fill the position

there with an individual who already had prior ASAC experience. Tr., Day 2

at 141-42 (testimony of the OCEFT Director). More specifically, the OCEFT

Director testified that the Denver position was not going to provide the selectee

much experience in “field work, . . . case management, . . . interaction with

agents, [or] interaction with the region,” but this was going to be less of a

problem for ASAC O, who already had extensive experience in these areas. Id.

at 144-45, 149 (testimony of the OCEFT Director). Conversely, the OCEFT

Director testified that the appellant, who lacked prior experience as an ASAC,

would have a better developmental opportunity in Seattle. Id. at 155 (testimony

of the OCEFT Director). Finally, The OCEFT Director testified that he “knew

there had been friction between” the appellant and the Denver SAC in the past,

and he was concerned that this would not be a good environment for a new ASAC

to step into. 6 Id. at 156 (testimony of the OCEFT Director).

The existence of this “friction” between the appellant and the Denver SAC is

corroborated by other testimony. Tr., Day 2 at 34, 68-75 (testimony of the Denver

There is other evidence, however, that detracts from the agency’s position.

Specifically, the appellant testified that he would have needed minimal job

training to take on the ASAC role, particularly in the Denver office, because he

had already been performing “a lot of the same duties” while he was Resident

Agent in Charge in Helena, Montana. Tr., Day 1 at 88-89 (testimony of the

appellant). The CID Acting Director corroborated the appellant’s testimony. He

stated that there was no reason that the appellant could not have transitioned

smoothly into the Denver ASAC role. Id. at 116 (testimony of the CID Acting

Director). In fact, he testified that the appellant was in a better position to take

on the role than ASAC O because the appellant was already familiar with the

Denver region and had established relationships there. Id. at 116-17 (testimony

of the CID Acting Director). Moreover, unlike the situation with ASAC O, the

agency would not have had to pay for the appellant to relocate for the Denver

position. Id. at 117-18 (testimony of the CID Acting Director). The appellant

also gave a different account of his relationship with the Denver SAC. He

testified that there were no issues between them that would have prevented him

from serving as her ASAC. Id. at 182 (testimony of the appellant). He also

testified that whatever friction there was stemmed from the Denver SAC’s failure

to keep his initial disclosure to her in confidence; he did not mention any of the

previous professional disagreements that the Denver SAC cited in her testimony.

Tr., Day 1 at 68-69, 182 (testimony of the appellant); Tr., Day 2 at 34, 68-75

(testimony of the Denver SAC). Finally, the record shows that, contrary to the

OCEFT Director’s stated expectations, ASAC O’s appointment to Denver did not

work out; he was unable to maintain a productive working relationship with the

Denver SAC, and so the agency reassigned him to Seattle a mere 9 months after

his appointment. W-3 AF, Tab 14 at 144; Tr., Day 1 at 123-25 (testimony of the

CID Acting Director).

SAC), 172 (testimony of the Seattle SAC).

Having considered this evidence as a whole, we find no basis to disturb the

administrative judge’s overall assessment of the strength of the agency’s

evidence. Both the CID Acting Director and the OCEFT Director offered

reasonable explanations for their points of view, and it appears that the difference

between them comes down to professional disagreement. That the CID Acting

Director had a different reasonable opinion than did the OCEFT Director does not

seriously undermine the agency’s case. This is especially so considering that the

OCEFT Director’s ultimate decision regarding the appellant was consistent with

the interview panel’s recommendation. Furthermore, although the OCEFT

Director’s decision to deviate from the panel recommendation with respect to

Denver did not work out, it does not follow that the correct course of action

would have been to deviate from the Seattle recommendation as well by placing

the appellant in Denver. 7 The record shows that, when ASAC O left Denver in

July 2011, the agency filled the position with ASAC M, consistent with the

panel’s original recommendation. W-3 AF, Tab 14 at 144. This decision was

also consistent with the OCEFT Director’s stated opinion that the Denver position

should be filled with an experienced ASAC.

On petition for review, the appellant argues that the agency’s evidence in

support of its ASAC selection decisions was not strong. Specifically, he argues

that the OCEFT Director failed to account for the Denver SAC’s preference for

the appellant over ASAC O. PFR File, Tab 4 at 14. The appellant’s theory of the

case is that the CID Director retaliated against him by withholding this

information from the OCEFT Director until it was too late and the selection

decision had already been made. Id. at 9, 12-15. Although the CID Director was

On petition for review, the appellant seeks to reopen discovery, arguing that the

agency should have but failed to provide a memorandum concerning the poor working

relationship between the Denver SAC and ASAC O, which memorandum may also

contain information pertinent to the CID Director’s motive to retaliate. PFR File, Tab 4

at 17-19. Based on the appellant’s description of the information sought, we find that it

would be immaterial to the outcome of the appeal, and we therefore deny the request.

See Russell v. Equal Employment Opportunity Commission , 110 M.S.P.R. 557, ¶ 15

(2009).

not the selecting official, we agree with the appellant that she was involved in the

selection process, and that retaliation through her might be shown under a cat’s

paw theory. See generally Karnes v. Department of Justice , 2023 MSPB 12, ¶ 19.

However, the facts of this case do not support such a finding; only 45 minutes

elapsed between the time that the CID Director learned of the Denver SAC’s

opinion and the time that the Denver SAC learned of the selection decision. W-3

AF, Tab 30 at 12; Tr., Day 2 at 63-64 (testimony of the Denver SAC). This is not

a sufficient span of time to support a conclusion that the CID Director “withheld”

the information from the OCEFT Director. 8 This is especially so considering that

the Denver SAC had planned to speak with the OCEFT Director that very

afternoon. Tr., Day 2 at 60, 63 (testimony of the Denver SAC). It is likely that

the OCEFT Director had already taken the selection action before the

conversation between the CID Director and the Denver SAC even occurred, but in

either case, the record shows that the final selection decision came out earlier

than either of these officials had expected.

Motive to retaliate

Contrary to the administrative judge’s findings on the second Carr factor,

in which he discounted the CID Director’s motive to retaliate against the

appellant, ID at 9, we agree with the appellant that, because she was the subject

The administrative judge credited the OCEFT Director’s testimony that, even if he had

known of the Denver SAC’s opposition to ASAC O, it would have influenced his

decision only “minimally.” ID at 8-9; Tr., Day 2 at 153; (testimony of the OCEFT

Director). However, particularly in light of the clear and convincing evidence standard,

we find the evidence on this point equivocal at best. The fact remains that the OCEFT

Director would have at least considered the Denver SAC’s opinion in making his

selection, Tr., Day 2 at 153-54 (testimony of the OCEFT Director), just as he

considered and deferred to the Kansas City SAC’s preference not to fill the Kansas City

ASAC position at all. On the other hand, the OCEFT Director would have had to weigh

against that consideration the Seattle SAC’s desire to have the appellant in his own

office. Tr., Day 2 at 170-71 (testimony of the Seattle SAC). In any event, this

counterfactual scenario is far less significant in the analysis than the undisputed fact

that the OCEFT Director did not know of the Denver SAC’s preference, and the lack of

evidence that this was caused by the intentional withholding of information.

of his protected whistleblowing disclosure, the CID Director had a significant

motive to retaliate against him, PFR File, Tab 4 at 8-9. See Smith v. General

Services Administration, 930 F.3d 1359, 1366-67 (Fed. Cir. 2019) (outlining that,

when analyzing the second Carr factor, the Board should have considered,

amongst other things, that the disclosures “embarrassed” the management

officials implicated). However, as explained above, regardless of the CID

Director’s motive, and, even if she really thought that by withholding the

information she could disadvantage the appellant, the chronology shows that this

did not and perhaps could not have happened. We have also considered that the

CID Director influenced the selection process prior to her conversation with the

Denver SAC when she discussed the panel recommendation with the OCEFT

Director. Tr., Day 2 at 95-100 (testimony of the CID Director). However, there

is no evidence that any suggestions or recommendations that she made during

these discussions could be considered retaliatory against the appellant.

As for the OCEFT Director himself, we find that a retaliatory motive could

be imputed towards him to the extent that he was a senior official and

representative of the institutional interests of the agency. See Chambers v.

Department of the Interior, 116 M.S.P.R. 17, ¶¶ 3, 69, 71 (2011). However, the

administrative judge found that, if the OCEFT Director had any retaliatory

motive, it was only slight. ID at 9. The appellant does not challenge this finding

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

The agency’s treatment of similarly situated individuals

The third Carr factor concerns evidence that the agency takes similar

actions against employees who are not whistleblowers but are otherwise similarly

situated. The agency identified ASAC O as a similarly situated

non-whistleblower whom it treated similarly to the appellant. Specifically,

ASAC O would have preferred the Seattle position, but the agency selected him

for the Denver position instead. W-3 AF, Tab 19 at 12-13; IAF, Tab 15 at 16, 64.

The agency argues that neither the appellant nor ASAC O got the position that

they preferred; in each case the deciding official made his decision based on what

he believed were the best interests of the agency regardless of the candidates’

personal preferences. W-3 AF, Tab 119 at 12-13. In that regard, we note that the

OCEFT Director encouraged both candidates to apply for the other position,

which they did. W-3 AF, Tab 14 at 121; Tr., Day 1 at 84 (testimony of the

appellant). We further observe that ASAC M, the highest scoring candidate, was

also not selected for the position that he wanted because the OCEFT Director

decided that the agency’s interests would be better served if he remained in

Chicago. Tr., Day 2 at 92-98 (testimony of the CID Director), 136-38 (testimony

of the OCEFT Director). We acknowledge the possibility that the agency treated

the appellant and ASAC O similarly merely because doing so would disadvantage

the appellant. Nevertheless, on balance, we find that the agency’s evidence tends

to show that it has taken similar actions with respect to similarly situated

non-whistleblowers.

The appellant counters with evidence that the agency has used geographical

reassignment to retaliate against two other agency employees for their protected

activity. 9 PFR File, Tab 4 at 15-17. The first of these individuals was a Special

Agent in Baltimore, Maryland, who disclosed violations of the Family and

We recognize that this evidence does not fit within the literal parameters of the third

Carr factor, which concerns the agency’s treatment of similarly situated

non-whistleblowers. See Rickel v. Department of the Navy, 31 F.4th 1358, 1363 (Fed.

Cir. 2022). Nevertheless, we observe that the Carr factors were originally formulated

by a Merit Systems Protection Board administrative judge to address the facts of a

specific case. Rychen v. Department of the Army, 51 M.S.P.R. 179, 184-85 (1991). The

Board and the U.S. Court of Appeals for the Federal Circuit subsequently recognized

that these factors have broad applicability to whistleblower claims and have employed

them as a useful analytical framework for a wide variety of fact patterns. E.g., Carr,

185 F.3d at 1323. Much like the penalty factors in Douglas v. Veterans Administration,

5 M.S.P.R. 280, 305-06 (1981), the Carr factors are not intended to be an exhaustive

list, and Carr should not be read to preclude the Board from considering other relevant

evidence that does not fit neatly within the rubric. See Rickel, 31 F.4th 1358 at 1364

(“In determining whether the agency has carried its burden, the Board considers the

three nonexclusive Carr factors.”). Conversely, not every Carr factor will necessarily

be relevant in every particular case. See id. at 1365-66.

Medical Leave Act of 1993, threatened to file a grievance about the matter, and

was subsequently reassigned, involuntarily, to Seattle. W-3 AF, Tab 16 at 19-23.

The CID Director was one of the officials who concurred in the reassignment.

W-3 AF, Tab 16 at 8; Tr., Day 2 at 84 (testimony of the CID Director). The

affected Special Agent filed a complaint with OSC, which found that the

reassignment was retaliatory, in violation of the Whistleblower Protection Act.

W-3 AF, Tab 16 at 18-31. We have reviewed this evidence, which the agency

does not dispute, and we find that it shows that, in 2010, the SAC in Philadelphia,

Pennsylvania engaged in whistleblower retaliation against this Special Agent.

However, having carefully reviewed OSC’s report and the other relevant

documents, we find no evidence that the CID Director herself acted with

retaliatory animus in that case. Rather, it appears that she and various other

officials approved the Philadelphia SAC’s reassignment request based on the

facially legitimate but pretextual reasons that she was given. W-3 AF, Tab 16

at 4-8. In other words, in that case, it was the CID Director who was the cat’s

paw.

The second employee was ASAC B, who filed an equal employment

opportunity (EEO) complaint after she was not selected for a promotion to the

position of SAC in Dallas, Texas. She named the CID Director as the

discriminating official. Tr., Day 2 at 10 (testimony of ASAC B). The following

month, the CID Director placed ASAC B on a performance improvement plan,

and ASAC B filed another EEO complaint about that action. Id. at 11 (testimony

of ASAC B). Approximately 5 months later, the CID Director proposed

ASAC B’s removal for lack of candor. W3-AF, Tab 15 at 72-75. The OCEFT

Director was the deciding official, and he did not sustain the charge. Id. at 76.

Nevertheless, he involuntarily reassigned ASAC B to agency headquarters in

Washington, D.C. Tr., Day 2 at 18-19 (testimony of ASAC B). Rather than

report to duty in Washington, D.C., ASAC B agreed with the agency that she

would retire. W-3 AF, Tab 15 at 79; Tr., Day 2 at 19-20 (testimony of ASAC B).

Although this series of events may raise an inference of retaliation, in the absence

of a judgment from a tribunal of competent jurisdiction, it is impossible for us to

determine in the context of this IRA appeal whether retaliation in ASAC B’s case

actually occurred. The appellant argues on review that ASAC B filed a lawsuit in

Federal district court, which the agency settled almost immediately. PFR File,

Tab 4 at16; Tr., Day 2 at 20-21 (testimony of ASAC B). However, for reasons

that the Board has previously explained, we will not consider evidence of a

settlement or settlement negotiations in determining the existence or extent of

liability. See Hayden v. U.S. Postal Service, 15 M.S.P.R. 296, 302 (1983), aff’d,

758 668 (Fed. Cir. 1984) (Table). We therefore find that ASAC B’s case is not

competent evidence on whether the agency would have taken the same action in

the appellant’s case notwithstanding his protected whistleblowing.

The appellant also cites to an October 19, 2010 memorandum concerning

OCEFT and CID leadership. W-3 AF, Tab 17 at 4-8, Tab 30 at 17. He argues

that this memorandum shows that the agency, and the CID Director in particular,

have used involuntary reassignments as a tool of retaliation in other cases. W-3

AF, Tab 30 at 17. We have reviewed this memorandum, but we do not agree with

the appellant’s argument. The memorandum seems to show that numerous CID

and other OCEFT employees were unhappy with the climate in OCEFT and felt

that some personnel matters were being handled unfairly. W-3 AF, Tab 17 at 4-8.

However, nowhere in this document are the CID or OCEFT Directors implicated

personally, and there is no discussion of any sort of prohibited personnel practice.

In any event, we find that this vague, unsworn, triple-hearsay document does not

constitute probative evidence of whether the agency committed a prohibited

personnel practice in this case. See Cooper v. United States, 639 F.2d 727, 730,

226 Ct. Cl. 75 (1980) (finding triple hearsay to be “highly unreliable”).

Considering all of the evidence described above, we find that the agency

has shown by clear and convincing evidence that the OCEFT Director would have

made the same decisions even absent the appellant’s protected disclosures. The

OCEFT Director’s stated reasons for making his decision are supported by and

consistent with the other evidence of record. There is little evidence of

retaliatory motive by the OCEFT Director, and there is no evidence to show that,

when he made his decision to promote the appellant to an ASAC position in

Seattle (a position for which the appellant had applied), he was even aware that

this would have been an undesirable outcome for the appellant. Although the

CID Director had significant retaliatory motive, the record shows that she did not

actually influence the ASAC selection decision in any way that she believed

would be disadvantageous to the appellant.

NOTICE OF APPEAL RIGHTS 10

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

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

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

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

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

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

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

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

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

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

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

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

chosen forum.

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

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

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.

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:

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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

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 the 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 competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.