Trevor McCardle v. Equal Employment Opportunity Commission ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TREVOR MCCARDLE, 1 DOCKET NUMBER
Appellant, SF-1221-17-0270-W-2
v.
EQUAL EMPLOYMENT DATE: January 6, 2023
OPPORTUNITY COMMISSION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
1
The Board took official notice that Mr. McCardle died on August 4, 2019, while the
petition for review was pending, and it issued a show cause order that invited the
parties to file a motion for substitution. Petition for Review (PFR) File, Tab 5. In
response to the show cause order, the appellant’s attorney filed a motion for
substitution, which requests that Yolanda Acuna, Mr. McCardle’s sole heir, be
substituted in his place. PFR File, Tab 6. The motion includes a letter of instruction
from Ms. Acuna, a California death record from Lexis-Nexis, and a declaration made
under penalty of perjury from Ms. Acuna. Id. at 6-8. If an appellant dies, the
processing of an appeal will only be completed upon substitution of a proper party.
5 C.F.R. § 1201.35(a). Motions to substitute must be filed with the Board within
90 days after the death of a party except for good cause shown. 5 C.F.R. § 1201.35(b).
The appellant’s attorney filed the motion for substitution on March 23, 2022, which was
more than 90 days after Mr. McCardle’s death. However, in the absence of a timely
substitution of a party, the processing of an appeal may continue if the interests of the
proper party will not be prejudiced. 5 C.F.R. § 1201.35(c). No such prejudice exists
here, and the agency has not opposed the motion; thus, we find it appropriate to
continue with the processing of this appeal. Both Ms. Acuna and Mr. McCardle will be
referred to as “the appellant.”
2
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
Michal B. Shinnar, Esquire and Renn C. Fowler, Esquire, Silver Spring,
Maryland, for the appellant.
Michael J. O’Brien, New York, New York, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in this individual right of action 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
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 a nd 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. We MODIFY the initial decision to
find that the appellant satisfied his prima facie burden concerning his
September 19, 2014 agency-wide email and L.T.’s complaint on his behalf to the
Office of the Inspector General (OIG). We FURTHER MODIFY the initial
decision to find that the agency proved by clear and convincing evidence that it
3
would have taken the same personnel actions against him in the absence of the
email or the OIG complaint filed on his behalf. Except as expressly MODIFIED
herein, we AFFIRM the administrative judge’s decision to deny corrective action
in the initial decision.
BACKGROUND
¶2 The relevant background, as recited in the initial decision, is generally
undisputed. McCardle v. Equal Employment Opportunity Commission , MSPB
Docket No. SF-1221-17-0270-W-2, Appeal File (W-2 AF), Tab 15, Initial
Decision (ID). The appellant was employed by the agency as a Paralegal
Specialist. ID at 4. He filed a complaint with the Office of Special Counsel
(OSC), alleging that the agency retaliated against him for whistleblowing
disclosures and/or protected activity, and he filed a Board appeal after OSC
concluded its investigation. 3 ID at 6-7; McCardle v. Equal Employment
Opportunity Commission, MSPB Docket No. SF-1221-17-0270-W-1, Appeal File
(W-1 AF).
¶3 The administrative judge implicitly found that the Board has jurisdiction
over this matter, and he scheduled a hearing. ID at 8-9; W-1 AF, Tabs 22, 27, 41;
W-2 AF, Tab 2. The appellant subsequently requested a decision on the written
record. ID at 10; W-2 AF, Tab 6. The administrative judge issued an initial
decision in which he denied the appellant’s request for correc tive action. ID
at 10-20. The administrative judge indicated that the only relevant
whistleblowing disclosure or protected activity was a January 2, 2014 OIG
3
The appellant filed several other Board appeals challenging the agency’s decision to
indefinitely suspend him, to continue that indefinite suspension, and to remove him
from Federal service. ID at 4, 6-7, 9; McCardle v. Equal Employment Opportunity
Commission, MSPB Docket Nos. SF-0752-15-0230-I-1, SF-0752-15-0496-I-1, SF-0752-
16-0689-I-3. The administrative judge reversed the indefinite suspension and
continuation of the indefinite suspension actions because the agency failed to meet its
burden of proof, but he upheld the removal action. The parties filed petition for review
submissions in the 0230, 0496, and 0689 matters, which were addressed by the Board in
separate orders.
4
complaint and the appellant’s September 19, 2014 email; he further stated that the
only relevant personnel actions were the agency’s decision to place the appellant
on administrative leave on September 23, 2014, and to require him, on
September 29, 2014, to undergo a medical examination in order to be able to
return to work. ID at 9-10; W-1 AF, Tab 3 at 83-86, Tab 45 at 5; W-2 AF, Tab 12
at 5 n.1. The administrative judge determined, among other things, that the
appellant did not prove by preponderant evidence that he made whistleblowing
disclosures or engaged in protected activity and the agency did not have any
knowledge of the OIG complaint before it took the personnel actions against him .
ID at 10-20. The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply. Petition for Review (PFR) File,
Tabs 1, 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 In order to establish a prima facie case of reprisal under the whistleblower
protection statutes, the appellant must prove by preponderant evidence that (1) he
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
disclosure or protected activity was a contributing factor in the agency’s decision
to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a)(2)(A). 4
Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 6 (2015). If the
appellant makes out a prima facie case, then the agency is given an opportunity to
prove, by clear and convincing evidence, that it would have taken the same
personnel action in the absence of the whistleblowing disclosure or protected
activity. Id.; 5 U.S.C. § 1221(e)(2).
4
During the pendency of this appeal, the National Defense Authorization Act for Fiscal
Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283 (2017), was signed into law on
December 12, 2017. Section 1097 of the NDAA amended various provisions of Title 5
of the United States Code. Our decision in this appeal would be the same under both
pre- and post-NDAA law.
5
The appellant proved by preponderant evidence that his September 19, 2014
agency-wide email contained a whistleblowing disclosure that was a contributing
factor in the agency’s decision to place him on administrative leave and to require
him to obtain a medical examination before he could return to work.
¶5 In his September 19, 2014 agency-wide email, the appellant asserted,
among other things, that someone “doctored” his Official Personnel File (OPF)
“to make [his] 7-month enforcement stint [] look like a 90-day detail.” W-1 AF,
Tab 6 at 94-136. The administrative judge concluded in the initial decision that
the appellant did not have a reasonable belief that he disclosed actions that
evidenced wrongdoing under 5 U.S.C. § 2302(b). ID at 14-20. Significantly, the
administrative judge relied on a July 29, 2013 performance plan certification, in
which the appellant acknowledged that his detail to the Enforcement Unit began
in July 2013, to find that the appellant did not have a reasonable belief that his
detail lasted 7 months. ID at 18. The administrative judge noted that the agency
had a practice of exercising its discretion to have employees perform tasks in
other office sections without a formal detail. ID at 18-20. The administrative
judge discussed the appellant’s contention that the agency issued two Standard
Form (SF) 50s within 2 days which evidenced wrongdoing, but he found that the
agency was properly correcting an earlier mistake. ID at 18-19. On review, the
appellant asserts that the administrative judge improperly applied the reasonable
belief standard and erred when he found that the appellant did not make a
whistleblowing disclosure in this email. PFR File, Tab 1 at 5-6, 9-11. We agree.
¶6 A whistleblowing disclosure is a disclosure of information that an employee
“reasonably believes evidences . . . any violation of any law, rule, or regulation.”
5 U.S.C. § 2302(b)(8)(A)(i). A reasonable belief exists if a disinterested observer
with knowledge of the essential facts known to and readily ascertainable by the
employee reasonably concludes that the actions of the Government evidence
wrongdoing as defined by the whistleblower protection statutes. Lachance v.
White, 174 F.3d 1378 (Fed. Cir. 1999); Scoggins v. Department of the Army,
123 M.S.P.R. 592, ¶ 11 (2016).
6
¶7 The record reflects that the appellant began receiving work from the
Enforcement Unit on May 7, 2013. W-1 AF, Tab 26 at 20. On August 2, 2013,
the agency issued an SF-50 that detailed the appellant to the Enforcement Unit as
an investigator, effective July 28, 2013, and not to exceed November 14, 2013.
Id. at 22. On December 4, 2013, the appellant was still working in the
Enforcement Unit and was arranging coverage with other coworkers for
subsequent weeks in December. Id. at 25. On December 11, 2013, the agency
extended the appellant’s detail to March 3, 2014. W-1 AF, Tab 1 at 154. Just
2 days later, on December 13, 2013, the agency issued an SF -50 that terminated
the appellant’s detail, effective November 15, 2013. W-1 AF, Tab 26 at 24.
¶8 We have reviewed the appellant’s performance appraisal record covering
July 14 to October 14, 2013, which was signed both by him and by the supervisor
of the Enforcement Unit. W-1 AF, Tab 31 at 27-38. Contrary to the
administrative judge’s finding that the appellant knew that the detail began in
July 2013, both the appellant and the Enforcement Unit supervisor stated in their
respective narrative portions of the performance appraisal record that the
appellant’s detail to the Enforcement Unit began in or around June 2013. Id.
at 30, 38. Thus, we find that a disinterested person with knowledge of the
essential facts would construe from these admissions that the appellant began
performing work in the Enforcement Unit in or around June 2013. 5
¶9 Similarly, a disinterested person with knowledge of the essential facts
would conclude that the appellant continued to perform work as part of his detail
in the Enforcement Unit until around December 4, 2013. 6 Indeed, the appellant’s
5
Even if we assumed for the purposes of our analysis that the July 14, 2013 start date
of the appraisal period coincided with the start date of his detail, a different outcome is
not warranted because a July 14, 2013 start date is 2 weeks earlier than the start of the
detail as reflected in the appellant’s OPF.
6
The agency’s decision to issue multiple SF-50s in mid-December 2013 to correct its
own mistake in originally extending the appellant’s detail does not warrant a different
outcome because the record reflects that he continued to work in the Enforcement Unit
7
performance appraisal record for the period immediately following his detail was
dated from December 4, 2013, to September 30, 2014, W-1 AF, Tab 31 at 39-49,
which supports his contention that he worked in the Enforcement Unit after
November 15, 2013.
¶10 This nearly 6-month time frame, from June to December 2013, far exceeds
the July 28 to November 15, 2013 time frame memorialized in the appellant’s
OPF. Under these circumstances, we find that a disinterested observer with
knowledge of the essential facts known to and readily ascertainable by the
appellant would reasonably conclude that his OPF did not correctly identify the
start and end dates of his detail to the Enforcement Unit and the agency’s
apparent manipulation of his SF-50s evidenced some kind of wrongdoing. 7 See,
e.g., Stiles v. Department of Homeland Security, 116 M.S.P.R. 263, ¶ 17 (2011)
(finding that an employee need not prove an actual violation to establish that he
had a reasonable belief that his disclosure met the statutory cr iteria). For these
reasons, we find that the appellant’s September 19, 2014 email constituted a
protected disclosure, and we modify the initial decision in this regard. 8
¶11 We next consider whether the appellant’s whistleblowing disclosure was a
contributing factor in the agency’s decision to place him on administrative leave
and/or to require him to undergo a medical examination. To prove that a
disclosure was a contributing factor in a personnel action, the appellant only need
for almost 3 weeks after the November 15, 2013 end date of the detail identified in his
OPF.
7
On review, the appellant cites 18 U.S.C. § 1001 and 5 C.F.R. § 293.103(b) to support
his contention that he disclosed an agency violation of a law or regulation. PFR File,
Tab 1 at 6. We find that the appellant’s allegations that the agency doctored his OPF so
obviously implicate a violation of a law, rule, or regulation that it was unnecessary for
him to identify any specific law or regulation that he believed was violated. DiGiorgio
v. Department of the Navy, 84 M.S.P.R. 6, ¶ 14 (1999).
8
Because we find that the appellant made a whistleblowing disclosure in his
September 19, 2014 email, we need not address his arguments on review regarding
other alleged disclosures that he made in this email. PFR File, Tab 1 at 7-8.
8
demonstrate that the fact of, or the content of, the disclosure was one of the
factors that tended to affect the personnel action in any way. Carey v.
Department of Veterans Affairs, 93 M.S.P.R. 676, ¶ 10 (2003). The
knowledge/timing test allows an employee to demonstrate that the disclosure was
a contributing factor in a personnel action through circumstantial evidence, such
as evidence that the official taking the personnel action knew of the disclosure
and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure was a contributing factor in
the personnel action. Id., ¶ 11; see 5 U.S.C. § 1221(e)(1).
¶12 The appellant proved that his September 19, 2014 email was a contributing
factor in the agency’s decision to place him on administrative leave on
September 23, 2014, and to require, on September 29, 2014, that he obtain a
medical examination in order to return to work. The knowledge element is
satisfied because his email was sent to the entire agency and the agency officials
who placed the appellant on administrative leave and ordered him to take the
medical examination had knowledge of the email. W-1 AF, Tab 6 at 83-84,
94-98; W-2 AF, Tab 11 at 126-30. In fact, the appellant’s first-level supervisor
specifically referenced his September 19, 2014 email in the notice that required
him to take a medical examination in order to return to work . W-1 AF, Tab 6
at 83. The timing element is satisfied because the agency placed the appellant on
administrative leave and required him to take a medical examination 4 days and
10 days, respectively, after he sent the email. See Mithen v. Department of
Veterans Affairs, 119 M.S.P.R. 215, ¶ 12 (2013) (finding that an interval of less
than 2 weeks between the appellant’s disclosure and the agency’s decision to
detail him established contributing factor under the knowledge/timing test) ;
McCarthy v. International Boundary & Water Commission, 116 M.S.P.R. 594,
¶ 41 (2011) (concluding that a 3-day delay between the disclosure and the
agency’s decision to terminate the appellant is sufficiently proximate that a
reasonable person could conclude that the disclosure was a contributing factor in
9
the termination), aff’d, 497 F. App’x 4 (Fed. Cir. 2012). Accordingly, we
conclude that the appellant has satisfied his prima facie bur den concerning his
September 19, 2014 email.
The appellant proved by preponderant evidence that he was protected from
retaliation by the OIG complaint filed on his behalf and that the OIG complaint
was a contributing factor in the agency’s order that he obtain a medical
examination in order to return to work.
¶13 The record reflects that, on January 2, 2014, agency administrative judge
L.T. submitted a complaint on the appellant’s behalf to an OIG criminal
investigator. 9 W-1 AF, Tab 26 at 17. The OIG complaint stated, among other
things, that the appellant asked her to “raise” the issue of “falsified OPF
documents/entries” concerning the duration of his detail by his second-level
supervisor and other agency officials. Id. The OIG complaint also included
numerous attachments, including correspondence between the appellant and his
coworkers in the Enforcement Unit and the various SF-50s discussed above. Id.
at 18-25.
¶14 In the initial decision, the administrative judge reviewed the declarations
submitted by the appellant’s first- and second-level supervisors, and he concluded
that they did not have any knowledge of the OIG complaint before any of the
personnel actions were taken. ID at 10-12. On review, the appellant asserts that
the whistleblower protection statutes protect him from retaliation because L.T.
filed the OIG complaint on his behalf and the administrative judge erred in his
analysis of the agency officials’ knowledge of this complaint. PFR File, Tab 1
at 12-14.
¶15 The appellant correctly notes that, in Burrowes v. Department of the
Interior, 54 M.S.P.R. 547 (1992), and Duda v. Department of Veterans Affairs,
51 M.S.P.R. 444 (1991), the Board held that the provisions of the whistleblower
9
We discern no error with the administrative judge’s finding that the appellant did not
prove by preponderant evidence that he made any contact with OIG that would
constitute activity protected by 5 U.S.C. § 2302(b)(9)(C). ID at 10, 19-20.
10
protection statutes are not limited to employees who actually made the
whistleblowing disclosures. 10 PFR File, Tab 1 at 10-12. Taken together, these
cases demonstrate that protection under the whistleblower protection statutes
extends to employees who have a relationship with the employee who made a
whistleblowing disclosure or engaged in protected activity. Burrowes,
54 M.S.P.R. at 550-51; Duda, 51 M.S.P.R. at 446-47.
¶16 Burrowes is instructive to our analysis. There, the administrative law judge
appellants alleged that the former Chief Judge, who was acting as their
spokesperson, made statements to Congressional staffers disclosing agency
management and abuse when he distributed their petition to Congress . Burrowes,
54 M.S.P.R. at 551-52. The Board noted that, under Duda, the Chief Judge’s
statements to Congressional staffers would protect the appellants from retaliation
on the basis of the disclosure if he disclosed gross mismanagement or an abuse of
authority on their behalf; however, the Board concluded that the appe llants did
not make a nonfrivolous allegation that the Chief Judge made such a protected
disclosure on their behalf. Id.
¶17 The OIG complaint in this matter stands in contrast to the alleged disclosure
in Burrowes. Pursuant to 5 U.S.C. § 2302(b)(9)(C), “disclosing information to
the [OIG] . . . of an agency” constitutes protected activity. We therefore conclude
that the OIG complaint constitutes protected activity. We further find that a
sufficient relationship exists between the appellant and L.T. such that he is
protected from retaliation as a result of L.T.’s protected activity. Indeed, L.T.
explicitly stated in the OIG complaint that the appellant “asked [her] to raise [th e]
issue of falsified OPF documents/entries” by various agency employees, he
provided her with documentation to forward to OIG in support of his claims, and
L.T. ultimately filed the OIG complaint in which she raised this issue on the
10
Although Burrowes and Duda involved an earlier version of the whistleblower
protection statutes, the parties have not identified, and we are not aware of, any change
in the statutes that would warrant a different result.
11
appellant’s behalf and included the documentation that he provided to her.
W-1 AF, Tab 26 at 17.
¶18 Having determined that the appellant was protected from retaliation on the
basis of the OIG complaint filed on his behalf, we must next evaluate whether the
appellant has proven contributing factor. There is no evidence whatsoever that
the appellant’s second-level supervisor had any notice of the OIG complaint
before she placed him on administrative leave on September 23, 2014. W-2 AF,
Tab 11 at 126-27. We therefore affirm the initial decision in this regard. ID
at 11-12.
¶19 The evidence is more complicated regarding the first-level supervisor’s
knowledge of an OIG complaint before she issued the September 29, 2014 letter
that required him to obtain a medical examination before he returned to work.
The first-level supervisor stated in her declaration that when she sent the
appellant the letter, she “did not know that on January 2, 2014 [L.T.] had
contacted [the OIG] on [the appellant’s] behalf.” W-2 AF, Tab 11 at 129. She
further stated that she “first became aware of [L.T.’s] contact with [OIG] on [the
appellant’s behalf]” in August 2017. Id. at 129-30. However, on September 24,
2014, L.T. sent an email to the appellant’s first-level supervisor and other agency
officials which advised them that she had “corresponded via e-mail with several
members of Congress . . . regarding the escalating [equal employment opportunity
(EEO)] and [w]histleblower retaliation . . . affecting [her] co -workers (including
[the appellant and his September 19, 2014 agency-wide email]).” W-2 AF,
Tab 13 at 17. The Chief Operating Officer responded that same day that she
would forward L.T.’s email to the OIG for appropriate action. Id. at 14. The
following day, on September 25, 2014, L.T. forwarded the Chief Operating
Officer’s response to the first-level supervisor and other agency officials, and she
advised those recipients that “since January 2014,” “official reports were made
and evidence/documentation provided” to the OIG and the OIG “is (and has been)
aware of” the allegations of retaliation for EEO activity and whistleblower
12
disclosures and the allegations described in the appellant’s September 19, 2014
email. Id. at 14-15.
¶20 In contrast to the administrative judge, we find that the first-level
supervisor’s declaration, which narrowly identified when she learned that L.T.
filed the OIG complaint on the appellant’s behalf, is not dispositive on the issue
of knowledge. Rather, we find it more likely than not that, on September 25,
2014, the first-level supervisor knew that the appellant or someone else who had
knowledge of the allegations in his September 19, 2014 email previously filed an
OIG report or complaint that described his allegations in that email in the context
of a claim of retaliation for whistleblowing disclosures or protected activity. We
therefore conclude that the appellant has satisfied the knowledge element.
¶21 Regarding the timing element, L.T.’s September 25, 2014 email predates by
4 days the first-level supervisor’s September 29, 2014 decision to require him to
take a medical examination in order to return to work. Thus, we find that the
timing element is satisfied. Accordingly, we conclude that the appellant has
proven by preponderant evidence that the OIG complaint on his behalf was a
contributing factor in the agency’s decision to require him to obtain a medical
examination before returning to work. The appellant is not entitled to corrective
action because the agency proved by clear and convincing evidence that i t would
have placed him on administrative leave and/or required him to obtain a medical
examination in the absence of his September 19, 2014 email or the OIG complaint
on his behalf. 11
11
For reasons that are unclear, neither party addressed the agency’s clear and
convincing burden in their respective closing submissions, below, despite the fact that
the administrative judge gave notice of that burden. W -1 AF, Tab 41 at 9-10; W-2 AF,
Tabs 11-14. Moreover, the petition for review submissions do not contain any
significant discussion of this issue. PFR File, Tabs 1, 3-4. We further modify the
initial decision to discuss the agency’s burden in this regard.
13
¶22 In determining whether an agency has met its burden by clear and
convincing evidence, 12 the Board considers the following factors: (1) the strength
of the agency’s evidence in support of its actions; (2) the existence and strength
of any motive to retaliate on the part of the agency officials involved in the
decision; and (3) any evidence that the agency takes similar actions against
employees who did not make protected disclosures or who did not engage in
protected activity, but who are otherwise similarly situated. Carr v. Social
Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999); Alarid v.
Department of the Army, 122 M.S.P.R. 600, ¶ 14 (2015). We have considered all
of the pertinent evidence. Whitmore v. Department of Labor, 680 F.3d 1353,
1358 (Fed. Cir. 2012).
¶23 There was strong evidence to place the appellant on administrative leave
and to require him to obtain a medical examination in mid- to
late-September 2014. Importantly, the following events occurred within the
previous 2 weeks: (1) on September 5, 2014, the appellant made specific threats
to a coworker that he wanted to kill someone; (2) the appellant’s “increasingly
hostile, intimidating, disruptive, and unpredictable” behavior; (3) complaints
from the appellant’s coworkers about their fear of his behavior; (4) on
September 23, 2014, the Federal Protective Service inspected his office and
discovered a box cutter in his backpack; and (5) several employees expressed
“concern for their safety and the safety of others.” W-1 AF, Tab 6 at 83, Tab 31
at 132; W-2 AF, Tab 12 at 17.
¶24 The Carr factor describing the existence and strength of the agency’s
motive to retaliate favors the appellant because (1) the September 19, 2014 email
identified by name the relevant agency officials who placed him on administrative
leave and required him to obtain a medical examination, and he made several
12
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.”
5 C.F.R. § 1209.4(e). It is a higher standard than preponderant evidence. Id.14
disparaging comments about other senior agency officials and the agency’s
handling of his EEO matter, and (2) the appellant’s email was referenced in
L.T.’s September 25, 2014 correspondence with the agency officials about the
OIG complaint in the context of a claim of retaliation for whistleblowing
disclosures and/or protected activity. W-1 AF, Tab 6 at 94-98; see Whitmore,
680 F.3d at 1370 (“Those responsible for the agency’s performance overall may
well be motivated to retaliate even if they are not directly implicated by the
disclosures, and even if they do not know the whistleblower personally, as the
criticism reflects on them in their capacities as managers and employees. ”).
¶25 Neither party has identified on review, nor are we aware of, any evidence
regarding the third Carr factor. Although the agency does not have an
affirmative burden to produce evidence concerning each and every Carr factor,
our reviewing court has held that “the absence of any evidence relating to Carr
factor three can effectively remove that factor from the analysis,” but that the
failure to produce evidence “may be at the agency’s peril,” and may imperil the
agency’s overall case. See Whitmore, 680 F.3d at 1374-75. Moreover, when the
agency fails to introduce relevant comparator evidence, the third Carr factor
cannot weigh in favor of the agency. Smith v. General Services Administration,
930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v. Environmental Protection Agency,
908 F.3d 1291, 1299 (Fed. Cir. 2018).
¶26 Our reviewing court has further held that the Carr factors “are merely
appropriate and pertinent considerations 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 whistleblowing. ” Whitmore, 680 F.3d
at 1374. Based on our review of the record, we conclude that the strength of the
agency’s evidence is powerful and persuasive, and it outweighs the other two
Carr factors. Indeed, as discussed above, the agency’s decision to place the
appellant on paid administrative leave and to require him to obtain a medical
examination was based on reports that the appellant began engaging in a pattern
15
of hostile and unprofessional behavior, to include his statement that he was going
to kill someone, and the subsequent discovery of a box cutter in his backpack.
The serious nature of these allegations justifies the agency’s concern about the
appellant’s continued presence in the workplace. We are left with a firm belief
that the agency would have placed the appellant on paid administrative leave and
would have required him to obtain a medical examination absent his
September 19, 2014 email or the OIG complaint on his behalf. Accordingly, we
deny the appellant’s request for corrective action.
NOTICE OF APPEAL RIGHTS 13
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 an d
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
13
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.
16
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 Appea ls 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
17
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. ____ , 137 S. Ct. 1975 (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
18
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. 14 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
14
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.
19
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.