Opinion

Sue_Ellen Dent v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Mar 22, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.6%

explaining that the Board has discretion in 6 deciding whether to dismiss a petition for review for failure to comply with an interim relief order

How later courts described this case

explaining that the Board has discretion in 6 deciding whether to dismiss a petition for review for failure to comply with an interim relief order
explaining that those responsible for the agency’s overall performance may well be motivated to retaliate, even if they are not directly implicated by the disclosures, as the criticism reflects on them in their capacities as managers and employees

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SUE ELLEN DENT, DOCKET NUMBER

Appellant, SF-1221-22-0149-W-2

DEPARTMENT OF VETERANS DATE: March 22, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Christopher D. Vaughn , Esquire, Decatur, Georgia, for the appellant.

Camille D. Stroughter , Esquire, Oakland, California, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

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

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 interpretation of statute or regulation

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. Except as expressly MODIFIED (1) to clarify the scope of the

Board’s jurisdiction in this matter, (2) to supplement the administrative judge’s

analysis of the knowledge/timing test, and (3) to supplement the administrative

judge’s analysis of the second Carr factor, we AFFIRM the initial decision.

BACKGROUND

¶2 On December 29, 2021, the appellant filed an IRA appeal with the Board

alleging, among other things, that the agency had removed her from her position

as a Social Worker during her probationary period because she had made

protected disclosures. Dent v. Department of Veterans Affairs, MSPB Docket No.

SF-1221-22-0149-W-1, Initial Appeal File (IAF), Tab 1 at 6-7, 31-32, Tab 8

at 121. With her initial appeal form, the appellant provided an October 29, 2021

close-out letter from the Office of Special Counsel (OSC). IAF, Tab 1 at 27-28.

Although the appellant initially requested a hearing on the matter, she

subsequently withdrew her request. Id. at 2; Dent v. Department of Veterans

Affairs, MSPB Docket No. SF-1221-22-0149-W-2, Appeal File (I -2 AF), Tab 12

at 4-5.

¶3 Based on the written record, the administrative judge issued an initial

decision granting the appellant’s request for corrective action. I-2 AF, Tab 31,

Initial Decision (ID) at 1, 26. In so doing, the administrative judge explained that

the appellant had identified five alleged protected disclosures; however, she had

only shown by preponderant evidence that she had made two protected

disclosures under 5 U.S.C. § 2302(b)(8), i.e., disclosures 1 and 4. 2 ID at 3-15.

Regarding disclosure 1, the administrative judge found that the appellant had

shown that, between November 6, 2019, and December 19, 2019, she made a

series of disclosures regarding the agency’s improper storage of veterans’

personal health information in an unrestricted folder maintained on a shared

network. ID at 4-11. Regarding disclosure 4, the administrative judge found that

the appellant had shown by preponderant evidence that, on February 6-7, 2020,

she disclosed to agency management personnel the aforementioned privacy

concerns, as well as, among other things, the fact that she had been subjected to

harassment. ID at 11-13. The administrative judge concluded that the appellant

had shown that disclosures 1 and 4 were a contributing factor in her probationary

termination. ID at 15-20. Via footnote, the administrative judge acknowledged

that the appellant had also alleged that she had been subjected to a hostile

working environment, which could amount to a significant change in working

conditions and, therefore, a covered personnel action; however, he found that the

appellant had failed to prove this personnel action. ID at 15 n.6. He thereafter

found that the agency failed to show by clear and convincing evidence that it

would have removed the appellant absent her protected disclosures. ID at 20-26.

By analyzing the merits of the five alleged disclosures identified by the appellant,

IAF, Tab 9 at 4, Tab 11 at 1, the administrative judge implicitly found that the Board

has jurisdiction over the same, ID at 4-15. Similarly, the administrative judge

implicitly found that the Board has jurisdiction over the two alleged personnel actions

in this matter, i.e., the appellant’s probationary termination and her allegation of a

significant change in working conditions. IAF, Tab 5 at 7, Tab 11 at 1; ID at 15 & n.6;

see 5 U.S.C. §§ 2302(a)(2)(A)(iii), (xii). We modify the initial decision to explicitly

find that the Board has jurisdiction over all of these issues and to find that the appellant

exhausted her claims with OSC. IAF, Tab 1 at 27-28, Tab 5 at 33-71; see Chambers v.

Department of Homeland Security, 2022 MSPB 8, ¶¶ 10-11 (explaining the

requirements of exhaustion); see also MaGowan v. Environmental Protection Agency,

119 M.S.P.R. 9, ¶ 5 (2012) (explaining that, in an IRA appeal, the standard for

establishing jurisdiction is a nonfrivolous claim, whereas the standard for establishing a

prima facie case on the merits is preponderant evidence).

The administrative judge ordered both interim relief and corrective action. ID

at 26-28.

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

appellant has filed a response, and the agency has filed a reply. Petition for

Review (PFR) File, Tabs 1, 5-6. In the petition and reply, the agency argues the

following: (1) the administrative judge erred in assessing witness credibility;

(2) the appellant failed to prove that her disclosures contributed to her removal;

and (3) the agency showed by clear and convincing evidence that it would have

removed the appellant absent her disclosures. PFR File, Tab 1 at 4-10, Tab 6

at 4-9.

¶5 Additionally, the appellant has challenged the agency’s certification of

compliance with the interim relief order, and the agency has responded to this

challenge. PFR File, Tab 3 at 4-7, Tab 4 at 4-7.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 Under the Whistleblower Protection Enhancement Act of 2012, an

appellant may establish a prima facie case of retaliation for whistleblowing

disclosures and/or protected activity by proving by preponderant evidence 3 that

(1) she made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in

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

and (2) the whistleblowing disclosure or protected activity was a contributing

factor in the agency’s decision to take a personnel action against her. 5 U.S.C.

§ 1221(e)(1); Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 6 (2015).

¶7 If the appellant makes out a prima facie case, the agency is given an

opportunity to prove, by clear and convincing evidence, 4 that it would have taken

Preponderant evidence is the degree of relevant evidence that a reasonable person,

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

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

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 preponderant evidence. 5 C.F.R. § 1209.4(e).

the same personnel action in the absence of the protected disclosure or activity.

5 U.S.C. § 1221(e)(1)-(2); Webb, 122 M.S.P.R. 248, ¶ 6. In determining whether

an agency has met this burden, the Board will consider the following factors:

(1) the strength of the agency’s evidence in support of its action; (2) the existence

and strength of any motive to retaliate on the part of the agency officials who

were involved in the decision; and (3) any evidence that the agency takes similar

actions against employees who are not whistleblowers but who are otherwise

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

(Fed. Cir. 1999). The Board does not view these factors as discrete elements,

each of which the agency must prove by clear and convincing evidence, but

rather, the Board will weigh the factors together to determine whether the

evidence is clear and convincing as a whole. Phillips v. Department of

Transportation, 113 M.S.P.R. 73, ¶ 11 (2010). In addition, the Board is mindful

that “[e]vidence only clearly and convincingly supports a conclusion when it does

so in the aggregate considering all the pertinent evidence in the record, and

despite the evidence that fairly detracts from that conclusion.” Whitmore v.

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

The appellant’s motion to dismiss for noncompliance with the administrative

judge’s interim relief order is denied as moot.

¶8 The appellant challenges the agency’s certification of compliance with the

interim relief order and requests that the Board dismiss the agency’s petition for

review. PFR File, Tab 3 at 4-7. She contends, among other things, that the

agency (1) failed to provide sworn statements and (2) merely indicated that it

would take certain actions but did not actually complete these actions prior to

submitting the certification. Id. Because we deny the agency’s petition for

review, the issuance of our Final Order renders moot any dispute concerning the

agency’s compliance with the interim relief order; accordingly, we deny the

appellant’s motion as moot. See Guillebeau v. Department of the Navy, 362 F.3d

1329, 1332-33 (Fed. Cir. 2004) (explaining that the Board has discretion in

deciding whether to dismiss a petition for review for failure to comply with an

interim relief order); see also Elder v. Department of the Air Force, 124 M.S.P.R.

12, ¶ 20 (2016) (concluding that the Board’s issuance of a final decision rendered

moot the parties’ dispute concerning the agency’s compliance with the interim

relief order).

¶9 If the appellant believes that the agency is in noncompliance with the

Board’s Final Order, she may file a petition for enforcement in accordance with

the instructions provided below. See Elder, 124 M.S.P.R. 12, ¶ 20.

The agency’s assertions regarding the administrative judge’s witness credibility

determinations do not compel a different outcome.

¶10 The agency argues that the administrative judge erred in analyzing witness

credibility. PFR File, Tab 1 at 5-7, Tab 6 at 4-7. To this end, the agency asserts

the following: (1) the administrative judge erred in assessing the credibility of

agency employee H.F.; (2) the administrative judge did not sufficiently analyze

the credibility of each witness; and (3) the administrative judge’s credibility

determinations are not entitled to deference because the matter was decided based

on the written record. PFR File, Tab 1 at 5-7, Tab 6 at 4-7. We find these

assertions unavailing.

¶11 The agency asserts that the administrative judge found agency witness H.F.

not to be credible “simply because [H.F.] could not initially recall” how she had

stored data relevant to disclosure 1, but later refreshed her recollection. PFR File,

Tab 1 at 6. Contrary to the agency’s assertion, however, the administrative judge

identified several reasons why he found H.F.’s version of events to be less

credible than the appellant’s version of events. ID at 6-9. The agency’s

disagreement with the administrative judge’s reasoned credibility determination

and any factual findings stemming therefrom does not provide a basis to disturb

the initial decision. 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); Broughton v. Department of Health and Human Services,

33 M.S.P.R. 357, 359 (1987) (same).

¶12 The agency generally contends that the administrative judge failed to

provide an “in-depth” assessment of the credibility of each agency witness and

that his erroneous assessment of H.F.’s credibility “had a poisonous and

deleterious effect” that “bled into” his assessments of the other agency witnesses.

PFR File, Tab 1 at 5-7, Tab 6 at 5. It asserts that the administrative judge’s

assessments of the credibility of agency witnesses “were unexplained other than

an outright adoption of the same bias held against [H.F.].” PFR File, Tab 6 at 5.

We disagree and find that the administrative judge’s credibility determinations

were appropriately based on the factors set forth in Hillen v. Department of the

Army, 35 M.S.P.R. 453, 458 (1987). E.g., ID at 22-24. To the extent the agency

asserts that the administrative judge’s credibility determinations are indicative of

bias against the agency, PFR File, Tab 6 at 5, we disagree, see Vaughn v.

Department of the Treasury, 119 M.S.P.R. 605, ¶ 18 (2013) (explaining that there

is a presumption of honesty and integrity on the part of administrative judges that

can only be overcome by a substantial showing of personal bias and that the

Board will not infer bias based on an administrative judge’s case -related rulings).

¶13 Lastly, the agency contends that the administrative judge’s credibility

determinations are not entitled to deference and should be given a “heightened

degree of scrutiny” because the matter was decided based on the written record.

PFR File, Tab 6 at 5-6. When no hearing is held and the administrative judge’s

findings are based solely on the written record, the Board will give those findings

only the weight warranted by the record and the strength of his conclusions. See

Donato v. Department of Defense, 34 M.S.P.R. 385, 389 (1987). Here, however,

the agency has not identified any error with the administrative judge’s credibility

determinations or otherwise provided a basis to disturb any of his findings

stemming therefrom; thus, regardless of the degree of deference given, a different

outcome is not warranted. 5

The agency does not provide a basis to disturb the administrative judge’s

conclusion that the appellant proved that her protected disclosures contributed to

her removal.

¶14 The agency argues that the appellant failed to show that her disclosures

contributed to her removal. PFR File, Tab 1 at 7-8. In this regard, the agency

acknowledges that the decision to remove the appellant was based on several

reports of conduct filed by agency employees regarding the appellant; however, it

avers that the majority of these reports were drafted by nonsupervisory agency

personnel “who were not privy to [the appellant’s] protected disclosures.” Id.

The agency also asserts that the knowledge/timing test “works best when the

‘knowledgeable’ deciding official can be said to be influenced by the recent

protected disclosures.” Id. at 8. We find these assertions unpersuasive.

¶15 An appellant’s protected activity is a contributing factor if it in any way

affects an agency’s decision to take, or fail to take, a personnel action.

See Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 14 (2012). One way

to establish contributing factor is the knowledge/timing test. Wadhwa v.

Department of Veterans Affairs, 110 M.S.P.R. 615, ¶ 12, aff’d, 353 F. App’x 435

(Fed. Cir. 2009). Under this test, an appellant can prove the contributing factor

element through evidence showing that the official taking the personnel action

knew of her protected activity and that the personnel action occurred within a

period of time such that a reasonable person could conclude that the activity was

a contributing factor in the personnel action. Id.

¶16 Actual knowledge on part of the deciding official, however, is not the only

manner by which an appellant may satisfy the knowledge/timing test. Indeed, an

To the extent the agency argues that it was improper for the administrative judge to

decide the matter without holding a hearing, PFR File, Tab 1 at 7, the agency’s

argument is unavailing, see Thomas v. Department of Veterans Affairs, 51 M.S.P.R.

218, 220 (1991) (explaining that an agency has no statutory right to a hearing).

appellant also may satisfy the knowledge prong of the knowledge/timing test by

proving that the official taking the action had constructive knowledge of the

protected disclosure, even if the official lacked actual knowledge. Nasuti v.

Department of State, 120 M.S.P.R. 588, ¶ 7 (2014). An appellant may establish

constructive knowledge by showing that an individual with actual or constructive

knowledge of the disclosure influenced the official accused of taking the

retaliatory action. See Karnes v. Department of Justice, 2023 MSPB 12,

¶¶ 19-20. Indeed, in an IRA appeal, the party before the Board is the agency, not

its individual officials, and lack of knowledge by a particular official is not

dispositive. Nasuti, 120 M.S.P.R. 588, ¶ 7.

¶17 Here, the agency’s assertions do not provide a basis to disturb the

administrative judge’s conclusion that the appellant satisfied the knowledge prong

of the knowledge/timing test. ID at 15-20. For example, the record supports his

findings that agency employees H.F., T.S., and A.I. all (1) had actual knowledge

that the appellant made disclosure 1; (2) had constructive knowledge that the

appellant made disclosure 4; and (3) filed reports of contact that were critical of

the appellant, many of which the agency admittedly relied on in deciding to

terminate the appellant during her probationary period. 6 ID at 16-20. In other

words, the record supports the administrative judge’s implicit conclusion that the

deciding officials had constructive knowledge of the appellant’s protected

disclosures. Id. To the extent the agency challenges any of the administrative

judge’s specific findings in this regard, PFR File, Tab 1 at 7-8, its vague

The probationary termination letter explained that the agency’s Chief of Social Work

Service, K.S., had recommended the appellant’s termination. I -2 AF, Tab 18 at 77-78,

Tab 28 at 29. In making this recommendation, K.S. relied on an evidence file that she

had been provided. E.g., I-2 AF, Tab 28 at 30-31. This file contained 10 reports of

contact critical of the appellant, 9 of which were submitted by H.F., T.S., or A.I., who,

as indicated, had actual or constructive knowledge of both disclosures. PFR File, Tab 1

at 4; ID at 16, 18, 21-22; IAF, Tab 8 at 13-14, 74-93; I-2 AF, Tab 28 at 31. The

remaining report on which K.S. admittedly relied was written by agency employee J.B.,

who had been instructed to complete the report by N.B. ID at 24-25; IAF, Tab 8 at 86.

The agency does not challenge the administrative judge’s conclusion that N.B. had

actual knowledge of disclosure 4. ID at 17.

assertions do not warrant a different outcome, see Tines v. Department of the Air

Force, 56 M.S.P.R. 90, 92 (1992) (explaining that a petition for review must

contain sufficient specificity to enable the Board to ascertain whether there is a

serious evidentiary challenge); see also 5 C.F.R. § 1201.115(a)(2). Thus, we

discern no basis to disturb the administrative judge’s conclusion that the appellant

satisfied the knowledge prong of the knowledge/timing test.

¶18 Insofar as it is undisputed that the appellant worked at the agency for less

than 1 year, we supplement the initial decision to explicitly find that the appellant

also satisfied the timing prong of the knowledge/timing test. IAF, Tab 8 at 20,

121; see Mastrullo v. Department of Labor, 123 M.S.P.R. 110, ¶ 21 (2015)

(explaining that the Board has held that a personnel action taken within

approximately 1 to 2 years of a protected disclosure satisfies the

knowledge/timing test). Accordingly, we find that the appellant satisfied the

knowledge/timing test and, therefore, proved that her protected disclosures were a

contributing factor in her probationary termination.

We discern no basis to disturb the administrative judge’s conclusion that the

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

removed the appellant absent her protected disclosures.

¶19 The agency argues that it satisfied its burden of showing by clear and

convincing evidence that it would have removed the appellant from her position

absent her protected disclosures. PFR File, Tab 1 at 8-9. In this regard, the

agency challenges the administrative judge’s analysis of the three Carr factors.

Id. We find the agency’s arguments in this regard unpersuasive.

The agency’s assertions regarding the first Carr factor are unavailing.

¶20 The agency challenges the administrative judge’s analysis of the first Carr

factor, i.e., the strength of the agency’s evidence in support of its removal action,

by asserting that it presented “unequivocal” evidence in support of its termination

action, i.e., the reports of contact. Id. at 8. We find this challenge unavailing.

¶21 Here, the administrative judge fully considered the reports of contact relied

on by the agency to terminate the appellant, but reasoned, among other things,

that many of the reports were uncorroborated, petty, subjective, or confounding.

ID at 22-23. For example, he reasoned that some of the reports included

subjective assessments of the appellant’s tone and mannerisms, to include stating

that she had a “flat affect.” ID at 23. The administrative judge also reasoned

that, although the appellant had submitted detailed responses to the reports of

contact that cast doubts on the credibility of statements made therein, the agency

had provided “exceedingly little” to rebut the appellant’s responses. ID at 25. In

other words, the administrative judge fully considered the reports relied on by the

agency but found that the overwhelming majority of these reports did not credibly

support the agency’s claimed concerns regarding the appellant’s workplace

conduct. The agency’s general disagreement with this reasoned finding is

unavailing. See Tines, 56 M.S.P.R. at 92. Accordingly, the agency has not

presented a basis to disturb the administrative judge’s conclusion that the

agency’s evidence in support of the appellant’s probationary termination was

“quite weak.” ID at 26. Thus, the first Carr factor weighed against the agency.

See Smith v. Department of the Army, 2022 MSPB 4, ¶¶ 23-26, 31 (reasoning that

the evidentiary record did not support the agency’s proffered explanation for its

decision not to select the appellant for a position, and, therefore, the first Carr

factor weighed against the agency).

The agency’s assertions regarding the second Carr factor do not compel a

different outcome.

¶22 Regarding the second Carr factor, i.e., the existence and strength of any

motive to retaliate on the part of the agency officials who were involved in the

decision, the agency contends that agency officials were not motivated to retaliate

against the appellant because her disclosures concerned “less than egregious

incidents” and “relatively minor infractions and violations” that would not have

negatively impacted agency management beyond corrective action such as the

direction of “a more secured storage of veteran patient data, as well as an

investigation to determine if the [a]ppellant’s harassment claims were viable.”

PFR File, Tab 1 at 8-9, Tab 6 at 8.

¶23 Here, the evidentiary record supports the administrative judge’s finding that

agency officials indirectly involved in the appellant’s termination had strong

motives to retaliate against her; indeed, the appellant’s disclosures reflected

poorly on these employees. ID at 26; see Mangano v. Department of Veterans

Affairs, 109 M.S.P.R. 658, ¶ 30 (2008) (explaining that the officials “involved” in

the action may encompass officials upon whom the proposing or deciding official

relied for information). Additionally, we supplement the administrative judge’s

analysis to find that the agency managerial personnel indirectly involved in the

appellant’s termination also likely harbored retaliatory motives because the

appellant’s disclosures reflected negatively on them as managers and

representatives of the agency’s general institutional interests. To this end, the

appellant’s disclosures concerned, among other things, the improper storage of

the data of approximately 100 veteran patients. ID at 4. This data included

veterans’ full names, addresses, social security numbers, birthdates, phone

numbers, emails, employment information, income, medical diagnoses, and

treatment histories. Id. The improper storage of this private information reflects

poorly on the agency; thus, the disclosure thereof may well have generally

impugned the reputation of agency management resulting in professional

retaliatory motives. See Robinson v. Department of Veterans Affairs, 923 F.3d

1004, 1019 (Fed. Cir. 2019) (explaining that those responsible for the agency’s

overall performance may well be motivated to retaliate, even if they are not

directly implicated by the disclosures, as the criticism reflects on them in their

capacities as managers and employees); see also Chambers v. Department of the

Interior, 116 M.S.P.R. 17, ¶ 69 (2011) (finding that agency managers had a

motive to retaliate because the appellant’s disclosures reflected on them as

representatives of the general institutional interests of the agency).

The agency’s assertions regarding the third Carr factor are unpersuasive.

¶24 Lastly, regarding the third Carr factor, i.e., any evidence that the agency

takes similar actions against employees who are not whistleblowers but who are

otherwise similarly situated, the agency asserts that “[w]ith an employee in a

permanent career-conditional appointment, policy dictates this showing must be

made [but for a probationary employee] less of a showing need be made because

one’s continued employment is tied to the successful completion of the

probationary period.” 7 PFR File, Tab 1 at 9. We interpret this assertion as an

argument that the third Carr factor is inapplicable to this appeal because the

appellant was a probationary employee at the time of her removal. This

argument, however, is misplaced. See, e.g., Chavez v. Department of Veterans

Affairs, 120 M.S.P.R. 285, ¶ 34 (2013) (considering whether two probationary

employees were similarly situated for purposes of the third Carr factor). In any

event, the administrative judge implicitly found that the third Carr factor was

effectively removed from consideration because no evidence regarding valid

comparators had been presented. ID at 26 & n.11; see Soto v. Department of

Veterans Affairs, 2022 MSPB 6, ¶ 18 (explaining that, because the agency bears

the burden of proof, when it fails to introduce relevant comparator evidence, the

third Carr factor is effectively removed from consideration and cannot weigh in

the agency’s favor).

The agency also asserts that “probationers can be terminated for any perceived

deficiency in performance or conduct.” PFR File, Tab 6 at 7. Although a probationary

employee such as the appellant is afforded fewer procedural protections than a tenured

employee, such an employee is protected from whistleblower retaliation. See Baggan v.

Department of State, 109 M.S.P.R. 572, ¶¶ 9-10 (2008) (explaining that, even when the

Board lacks direct jurisdiction over the termination of a probationary employee, an

appellant may request review in an IRA appeal). Accordingly, regardless of the

appellant’s probationary status, it remained the agency’s burden to prove, under the

clear and convincing standard, that it would have terminated her in the absence of her

protected disclosures. See Hugenberg v. Department of Commerce, 120 M.S.P.R. 381,

¶ 19 n.4 (2013) (clarifying that, when the appellant is a probationary employee, the

evidentiary burden on the agency with respect to a whistleblower retaliation claim is no

less than when the appellant is a tenured employee).

¶25 Thus, we discern no basis to disturb the administrative judge’s conclusion

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

have removed the appellant absent her disclosures.

¶26 Accordingly, we affirm the initial decision as modified.

ORDER

¶27 We ORDER the agency to cancel the appellant’s termination and to restore

the appellant effective May 1, 2020. See Kerr v. National Endowment for the

Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no

later than 20 days after the date of this decision.

¶28 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶29 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶30 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶31 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

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

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

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

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

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

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

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

the initial decision on your appeal.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST CONSEQUENTIAL 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 8

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

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

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

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

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

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

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

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.

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:

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. 9 The court of appeals must receive your petition for

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.

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