Case: 21-1560 Document: 22 Page: 1 Filed: 08/31/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SARAH MURRAY, PH.D.,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2021-1560
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-1221-18-0518-W-2.
______________________
Decided: August 31, 2021
______________________
SARAH MURRAY, APO, 09180 AE, Germany, pro se.
MATTHEW JUDE CARHART, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., FRANKLIN E.
WHITE, JR.
______________________
Before MOORE, Chief Judge, PROST and TARANTO, Circuit
Judges.
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2 MURRAY v. ARMY
PER CURIAM.
Sarah J. Murray petitions for review of the Merit Sys-
tems Protection Board’s (“Board”) decision sustaining her
termination of employment by the Department of the Army
(“Army”) for unprofessional conduct during a probationary
trial period. See Murray v. Dep’t of the Army, No. DA-1221-
18-0518-W-2 (M.S.P.B. Oct. 5, 2020) (decision available at
App. 7–59 1). We affirm.
BACKGROUND
On January 11, 2016, the Army hired Ms. Murray as a
Supervisory Nurse, stationed at the U.S. Army Institute of
Surgical Research, Burn Center & Clinical Division, Fort
Sam Houston, Texas. App. 8. Ms. Murray’s employment
was subject to a three-year probationary period, ending
January 10, 2019, to allow for “an adequate period of time
to fully evaluate [her] ability to complete a research cycle
and/or to fully evaluate [her] contribution and conduct.”
App. 8–9. As a Supervisory Nurse, Ms. Murray was ex-
pected “to maintain working relationships and a healthy
work environment,” among other responsibilities. App. 9.
On March 13, 2018 (within the probationary period),
Ms. Murray’s supervisor, Major Thomas G. Robinson, As-
sistant Deputy Commander of Nursing, issued a letter to
Ms. Murray terminating her employment. App. 60–61; see
App. 10. Major Robinson’s letter informed Ms. Murray
that “[o]n several occasions” she had “demonstrated inap-
propriate, discourteous, and/or unprofessional behavior to-
wards supervisors and coworkers” and that her conduct
“ha[d] caused disruption in the workplace.” App. 60. The
letter noted that Ms. Murray had been previously coun-
seled regarding her behavior but that her “ability to handle
stressful situations in a professional manner has not
1 “App.” refers to the appendix filed with the Army’s
response brief.
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MURRAY v. ARMY 3
improved.” App. 60. The letter concluded that “the inade-
quacies” of Ms. Murray’s conduct “demonstrate a breach of
minimally acceptable standards for a Supervisory Nurse”
and that Ms. Murray had not demonstrated “fitness for
continued employment” in that role. App. 60.
Ms. Murray subsequently filed a complaint with the
U.S. Office of Special Counsel (“OSC”) alleging that the
Army terminated her employment in retaliation for pro-
tected whistleblowing disclosures. See App. 67. On July 3,
2018, OSC issued a closure letter informing Ms. Murray
that it had terminated its inquiry into her complaint of re-
taliation. See App. 67–68.
Ms. Murray then initiated an individual right of action
(“IRA”) appeal before the Board requesting corrective ac-
tion under the Whistleblower Protection Act of 1989 and
the Whistleblower Protection Enhancement Act of 2012.
See App. 7–8. Like her OSC complaint, Ms. Murray’s IRA
appeal alleged that the Army terminated her employment
in reprisal for protected whistleblowing. See App. 10–11.
The administrative judge assigned to the case found that
Ms. Murray had “established a prima facie case of whistle-
blowing retaliation.” App. 29 (emphasis omitted). But the
administrative judge further found that the Army had “met
its burden of producing clear and convincing evidence . . .
that it would have terminated [Ms. Murray’s employment]
absent her protected disclosures and activity” and denied
Ms. Murray’s request for corrective action on that basis.
App. 50. The administrative judge’s initial decision be-
came the final decision of the Board. See App. 51, 55.
Ms. Murray now petitions for review of the Board’s de-
cision. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
DISCUSSION
Our review of Board decisions is limited. Whiteman v.
Dep’t of Transp.,
688 F.3d 1336, 1340 (Fed. Cir. 2012). A
final decision of the Board must be affirmed unless it is
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4 MURRAY v. ARMY
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c); see also Potter v. Dep’t of Veterans Affs.,
949 F.3d 1376, 1379 (Fed. Cir. 2020). We review the
Board’s legal determinations de novo and its factual find-
ings for substantial evidence. Archuleta v. Hopper,
786 F.3d 1340, 1346 (Fed. Cir. 2015). Substantial evidence
is “such relevant evidence as a reasonable mind might ac-
cept as adequate to support a conclusion.” Consol. Edison
Co. v. NLRB,
305 U.S. 197, 229 (1938).
If an agency employee establishes as a prima facie case
that a protected disclosure contributed to her removal, the
burden shifts to the agency to establish by clear and con-
vincing evidence that it would have taken the removal ac-
tion even in the absence of the protected disclosure.
5 U.S.C. § 1221(e)(2); see Kewley v. Dep’t of Health & Hum.
Servs.,
153 F.3d 1357, 1363 (Fed. Cir. 1998). In assessing
whether an agency has met its burden, the Board considers
three 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 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 situ-
ated. See Carr v. Soc. Sec. Admin.,
185 F.3d 1318, 1323
(Fed. Cir. 1999). But “Carr does not impose an affirmative
burden on the agency to produce evidence with respect to
each and every one of the three Carr factors to weigh them
each individually in the agency’s favor.” Whitmore v. Dep’t
of Labor,
680 F.3d 1353, 1374 (Fed. Cir. 2012). Rather,
“[t]he factors are merely appropriate and pertinent consid-
erations for determining whether the agency carries its
burden of proving by clear and convincing evidence that the
same action would have been taken absent the whistle-
blowing.”
Id. The “absence of any evidence” relating to one
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MURRAY v. ARMY 5
factor “can effectively remove that factor from the analy-
sis.”
Id.
Here, Ms. Murray challenges the evidence and the
Board’s reasoning with respect to the Carr factors. 2 See
Appellant’s Br. 2–6. But, as discussed below, we see no ba-
sis to disturb the Board’s decision, which properly applied
the Carr framework and addressed each factor in detail in
view of the record before the Board. See App. 29–50.
First, substantial evidence supports the Board’s find-
ing that factor one “strong[ly]” weighed in the Army’s favor
in that Ms. Murray “engaged in multiple hostile and un-
professional encounters with agency employees in public
areas of the hospital.” App. 43. In support, the Board re-
lied on testimony from multiple witnesses, including
Ms. Murray, Major Robinson, Major Laura Kraemer (who
worked in the Army’s Department of Education), and Mi-
chael (Mika) Barba (a clinical nurse specialist). See, e.g.,
App. 30–35, 37–38. For example, Major Kraemer contem-
poraneously documented that Ms. Murray “verbally as-
sault[ed] and attack[ed] [her]” with respect to a training
session and testified that Ms. Murray’s conduct concerning
the training session was “completely unprofessional.”
App. 32. The Board found Major Kraemer’s testimony to
be “credible, unbiased, and consistent with her earlier writ-
ten account of the confrontation.” App. 33. The Board fur-
ther found Ms. Murray’s denial of this “unprofessional
confrontation” with Major Kraemer “not credible.”
App. 33. As another example, the Board credited
Ms. Barba’s testimony concerning Ms. Murray’s unprofes-
sional behavior in the workplace. App. 34. And the Board
could “discern no hostility by Kraemer or Barba which
could have precipitated [Ms. Murray’s] conduct.” App. 39.
Indeed, the Board found that “[w]ith respect to
2 We have also considered Ms. Murray’s “Memoran-
dum in Lieu of Oral Argument” (ECF No. 20).
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6 MURRAY v. ARMY
[Ms. Murray’s] unprofessional confrontations with her co-
workers, none were with a person who was the subject of
her protected disclosures or who [Ms. Murray] claimed
treated her poorly because of her whistleblowing activity.”
App. 39.
Second, substantial evidence supports the Board’s find-
ing with respect to factor two of “only mild” or “only mod-
erate” indications of retaliatory motive. See App. 45, 48.
For example, the Board “considered [that] Robinson was
relatively new to the organization and was generally una-
ware of [Ms. Murray’s] [protected] disclosures and activity”
and “found credible Robinson’s testimony that he only con-
sidered [Ms. Murray’s] misconduct occurring while he was
her supervisor [in taking removal action].” App. 45–46. As
another example, the Board credited Major Robinson’s tes-
timony that he had already decided on removal before
learning of Ms. Murray’s protected activity. App. 48. In-
deed, it appears that the Board’s finding of even “some” re-
taliatory motive was based only on Ms. Murray’s “criticism
of management” “in general.” App. 46.
Third, the Board found that factor three was “not a sig-
nificant factor in this [case]” because there was “no evi-
dence to show that [similarly situated] employees engaged
in similar misconduct and were not similarly terminated
during their probationary periods.” App. 50. On appeal,
Ms. Murray argues that this factor instead should have fa-
vored her because Lieutenant Colonel Robin Smith (who
was a supervisor in the Burn Center) displayed “far worse
[conduct than Ms. Murray] for a longer period of time but
. . . was not a whistleblower and was not removed.” Appel-
lant’s Br. 4. But the Board relied on the undisputed fact
that “Smith was an active-duty member of the military and
[Ms. Murray] was a probationary civilian employee” to
properly conclude that “[Ms. Murray] and Smith are not
similarly situated.” App. 50; see Carr,
185 F.3d at 1327
(certain employees not similarly situated where the
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MURRAY v. ARMY 7
different employee groups “were supervised under sepa-
rate chains of command”).
The Board then “[w]eigh[ed] the three Carr factors”
and concluded, primarily on the “strong basis” of factor one,
that the Army had met its burden of producing clear and
convincing evidence that it would have terminated
Ms. Murray’s employment even absent her protected dis-
closures and activity. App. 50. As discussed, substantial
evidence supports the Board’s analysis of each factor. And
it was not improper for the Board to have based its conclu-
sion in this case on the strength of factor one given its find-
ings with respect to the other two factors. See Whitmore,
680 F.3d at 1374. Accordingly, we conclude that the
Board’s ultimate determination under the Carr factors is
in accordance with the law and supported by substantial
evidence.
CONCLUSION
We have considered Ms. Murray’s remaining argu-
ments but find them unpersuasive. For the reasons above,
we affirm the Board’s decision.
AFFIRMED
COSTS
No costs.
