Strader v. Department of Agriculture

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
GARY A. STRADER,
Petitioner,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
__________________________
2011-3137
__________________________
Petition for review of the Merit Systems Protection
Board in consolidated case nos. SF1221090692-W-1 and
SF1221090907-W-1.
__________________________
Decided: April 5, 2012
__________________________
APRIL HOLLINGSWORTH, Hollingsworth Law Office,
LLC, of Salt Lake City, Utah, argued for petitioner. Of
counsel on the brief was PAULA DINERSTEIN, Public Em-
ployees for Environmental Responsibility, of Washington,
DC.
JACOB A. SCHUNK, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
STRADER v. AGRICULTURE 2
Justice, of Washington, DC, argued for respondent. On
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, TODD M. HUGHES, Deputy
Director, and SONIA M. ORFIELD, Trial Attorney.
__________________________
Before NEWMAN, LOURIE, and PROST, Circuit Judges.
PROST, Circuit Judge.
Gary Strader, who was formerly employed as a Wild-
life Specialist with the Wildlife Services branch of the
Animal and Plant Health Inspection Service (“APHIS”)
division of the United States Department of Agriculture
(“USDA” or “agency”), appeals from an order of the Merit
Systems Protection Board (“Board”) holding that the
USDA did not violate the Whistleblower Protection Act
(“WPA”), 5 U.S.C. § 2302(b)(8), when it allowed Mr.
Strader’s term appointment to expire. For the reasons
discussed below, this court affirms.
I. BACKGROUND
Mr. Strader began his employment with Wildlife Ser-
vices in April 2005 as a seasonal employee in Richfield,
Utah. Later that year, Mr. Strader was recruited by
Kevin Lansford, then District Supervisor for Wildlife
Services, for a position as a Wildlife Specialist in the
Wildlife Services office in Ely, Nevada. Wildlife Services
contracts with state agencies to perform certain services
designed to prevent wildlife depredation. In Mr. Strader’s
case, Wildlife Services contracted with the Nevada De-
partment of Wildlife (“NDOW”) to conduct predator
control operations. Mr. Strader’s responsibilities included
tracking and killing coyotes for the protection of mule
deer and elk. On occasion, Mr. Strader was also tasked
with killing other types of wildlife, including mountain
3 STRADER v. AGRICULTURE
lions. NDOW imposed a $3 surcharge on hunting licenses
to fund predator control and game enhancement projects,
including Mr. Strader’s position.
On March 20, 2006, Mr. Strader and two of his fellow
employees, Jim Buhler and Derril Fry, set out with dogs
and snowmobiles to hunt coyotes and mountain lions on
bighorn sheep ranges. Two other Wildlife Services em-
ployees were hunting by plane in the area—Gilbert Te-
moke was piloting the plane and Shane Huseby was
assisting as a gunner. Mr. Fry radioed the plane and,
among other things, advised them that the three men on
the ground had heard a coyote about 500 yards away. Mr.
Fry instructed Mr. Buhler and Mr. Strader to wait for the
plane to arrive, but Mr. Strader took a shot at the coyote
and missed. According to Mr. Buhler and Mr. Fry, Mr.
Strader became angry with and threatened Mr. Fry for
suggesting that he should have waited for the plane to
arrive before shooting.
The plane then directed the ground unit toward
mountain lion tracks. When one of the snowmobiles
broke a belt, Mr. Strader refused to return with a re-
placement belt and then left Mr. Buhler and Mr. Fry to
work elsewhere for the rest of the day. Mr. Buhler and
Mr. Fry continued on snowmobiles and then on foot until
they could no longer proceed because of the depth of the
snow. After returning to their trucks, the two men drove
around the mountain seeking a different angle of ap-
proach. They eventually contacted the plane, the plane
landed, and Mr. Fry briefly took Mr. Temoke’s position in
the plane, thereby enabling Mr. Fry to lead Mr. Buhler on
a new route to the mountain lion tracks when he returned
to the ground. After following the tracks to a canyon, Mr.
Buhler and Mr. Fry claim to have shot two mountain lions
from the ground. Despite the fact that the agency’s
STRADER v. AGRICULTURE 4
permit with NDOW required them to submit a mountain
lion’s complete hide to NDOW, Mr. Buhler and Mr. Fry
claim that they agreed to only decapitate the two moun-
tain lions due to their level of fatigue, adverse conditions,
the lateness of the hour, and concern about getting off the
mountain before nightfall.
That evening, Mr. Buhler stayed at Mr. Strader’s
house, and reported to Mr. Strader that he and Mr. Fry
had killed two mountain lions that day. Mr. Buhler also
told Mr. Strader that the pelts were not recovered, but
Mr. Strader admits that he did not suspect that anything
improper had occurred at the time. According to Mr.
Buhler, Mr. Strader stated that “he was not going to work
in Nevada anymore and was going to find a job some-
where he did not have to work around Derril [Fry].”
Mr. Strader alleges that, over a year later, in Septem-
ber 2007, Mr. Temoke told him that he and Mr. Huseby
shot the two mountain lions from a plane. 1 Mr. Temoke
and Mr. Huseby deny having told Mr. Huseby that they
shot the mountain lions from a plane. In October 2007,
1 The Airborne Hunting Act, 16 U.S.C. § 742j-1,
provides that “[a]ny person who—(1) while airborne in an
aircraft shoots or attempts to shoot for the purpose of
capturing or killing any bird, fish, or other animal; or (2)
uses an aircraft to harass any bird, fish, or other animal;
or (3) knowingly participates in using an aircraft for any
purpose referred to in paragraph (1) or (2); shall be fined
not more than $5,000 or imprisoned not more than one
year, or both.” Notably, the Airborne Hunting Act specifi-
cally does “not apply to any person if such person is
employed by, or is an authorized agent of or is operating
under a license or permit of, any State or the United
States to administer or protect or aid in the administra-
tion or protection of land, water, wildlife, livestock, do-
mesticated animals, human life, or crops . . . .” 16 U.S.C.
§ 742j-1(b)(1).
5 STRADER v. AGRICULTURE
Mr. Strader spent a few days working with Joe Bennett,
the Nevada Wildlife Services East District Supervisor. At
that time, Mr. Strader told Mr. Bennett about the alleged
aerial shooting incident involving the two mountain lions.
According to Mr. Strader, Mr. Bennett angrily denied the
incident and accused Mr. Strader of fabricating the story
and trying to cause trouble.
In October 2008, Mr. Strader complained about the al-
leged aerial shootings to Gary Littauer, Assistant West-
ern Regional Director of Wildlife Services. Mr. Littauer
referred the matter to Agency Employee Relations which
assigned Ken Miller to investigate the allegations. Mr.
Miller interviewed all of the parties involved and obtained
several statements. In approximately mid-December
2008, Mr. Miller drafted a report stating that there was
no evidence to support any of Mr. Strader’s allegations.
At the hearing in this case, Mr. Miller testified that the
primary focus of his investigation was not Mr. Strader’s
allegations, but rather, the investigation of unrelated
allegations that Mr. Temoke had threatened Mr. Bennett.
Mr. Miller also testified that he did not know if shooting
mountain lions from a plane was improper.
Also in October 2008, Mr. Strader complained about
the alleged aerial shootings to Jerry Smith with NDOW.
Mr. Smith also undertook an investigation and in early
January 2009, reached the same conclusions as Mr.
Miller. Specifically, Mr. Smith informed Mr. Littauer that
“there was no evidence to merit any further investigation”
and “the two lion skulls . . . had most likely been disposed
of and were no longer available for inspection.” After
learning from Mr. Littauer that the agency was not going
to take any action regarding the alleged aerial shootings,
Mr. Strader threatened to take his allegations to the
Federal Bureau of Investigations (“FBI”), as well as the
STRADER v. AGRICULTURE 6
media and animal rights groups. According to Mr.
Strader, Mr. Littauer asked him to not contact the FBI
and instead asked him to speak with other Wildlife Ser-
vices officials. Mr. Strader claims that in order to protect
any future investigation, he decided to convince Mr.
Littauer that he would not contact the FBI. However, on
or about February 6, 2009, Mr. Strader filed a complaint
with the FBI.
Mr. Strader claims that on or about March 6, 2009,
Mr. Jensen informed him that he was going to be termi-
nated on June 30, 2009. Mr. Strader alleges that when he
asked Mr. Jensen if he would still have a job after July 1
if he had not made the complaint to the FBI, Mr. Jensen
nodded his head affirmatively. Mr. Strader filed a whis-
tleblower complaint with the Office of Special Counsel
(“OSC”) on March 6, 2009, alleging retaliation for his
disclosures regarding aerial hunting of mountain lions.
In his complaint, Mr. Strader claimed that “[t]he state
director advised me that my job was being eliminated
June 30th if not sooner.” Also in the same complaint, Mr.
Strader claimed that Mr. Jensen told him that he would
still be employed after July 1, 2009, if not for his aerial
hunting allegations. In addition to complaining to OSC,
Mr. Strader sent an email to Diedra Thiesse and Mr.
Jensen on March 16, 2009, stating his belief that he was
“done here June 30th.” However, at the hearing in this
case, Mr. Jensen testified that he never told Mr. Strader
that his job would end as of June 30, 2009, or that his
termination had anything to do with his aerial hunting
allegations. Rather, Mr. Jensen testified that the first
time he told Mr. Strader that his job was being termi-
nated was over the phone on March 16, 2009, and that he
told Mr. Strader that his job would end as of April 9,
2009. Mr. Strader acknowledges that the March 16, 2009,
conversation occurred, but that Mr. Jensen did not tell
7 STRADER v. AGRICULTURE
him the basis for the alleged change in the date of his
termination.
On April 7, 2009, Mr. Strader was injured while pre-
paring to return his work equipment to Mr. Jensen. Mr.
Strader filed a workers’ compensation claim based on the
accident and later filed a second whistleblower complaint
with the OSC, alleging that the agency had interfered
with his workers’ compensation claim and delayed proc-
essing his final pay in retaliation for his disclosures. On
April 22, 2009, the OSC informed Mr. Strader that it was
closing its investigation into his first complaint and that
he could seek corrective action from the Board. Similarly
on June 9, 2009, the OSC closed its investigation into Mr.
Strader’s second whistleblower complaint. Mr. Strader
filed an Individual Right of Action (“IRA”) with the Board
on June 10, 2009, regarding his termination, and on
August 21, 2009, he filed a second IRA alleging retaliation
based on Mr. Jensen’s interference with his workers’
compensation claim. The two IRAs were consolidated for
a hearing on March 11, 12, and 15, 2010, before the
administrative judge. Strader v. Dep’t of Agric., Nos.
SF1221090692-W-1, SF1221090907-W-1, slip op. at 1-2
(M.S.P.B. May 25, 2010) (“Initial Decision”).
On May 25, 2010, the administrative judge found that
Mr. Strader did not make disclosures entitled to protec-
tion under the WPA. Specifically, the administrative
judge found that while Mr. Strader reasonably believed
that shooting mountain lions from a plane was illegal, 2
2 As the administrative judge explained, it is un-
disputed that employees of the Wildlife Services are
“expressly authorized agents of the United States tasked
with the administration or protection of wildlife” and
therefore “it is unclear whether the use of aircraft by such
employees to shoot mountain lions would, in fact, violate
STRADER v. AGRICULTURE 8
Mr. Strader’s belief that his colleagues had engaged in
such activity was not reasonable. Additionally, the ad-
ministrative judge found that it was unlikely that Mr.
Huseby and Mr. Temoke would have confessed to shooting
mountain lions from a plane, and even if they had con-
fessed, Mr. Strader should have recognized that it was a
“tall tale,” especially given the testimony of multiple
expert witnesses that shooting mountain lions from a
plane was next to impossible. Accordingly, the adminis-
trative judge found that Mr. Strader had not made pro-
tected disclosures. Assuming, arguendo, that Mr.
Strader’s disclosures were indeed protected, the adminis-
trative judge found that Mr. Strader effectively estab-
lished that his disclosures were a contributing factor in
the agency’s decision to take a personnel action against
him because he was terminated approximately eighteen
months after his initial disclosure. But the administra-
tive judge went on to find that the agency established by
clear and convincing evidence that it would have termi-
nated Mr. Strader’s position even in the absence of his
disclosures. The administrative judge found that Mr.
Strader’s termination was due to the expiration of his
term appointment, which corresponded with the “long-
expected draw down of state funding for Project 17,” the
predator control project that Mr. Strader was hired to
work on. Id. at 29. Additionally, the administrative
judge found that the “relevant agency officials possessed
little if any motive to retaliate” and that “the agency
the terms of the Airborne Hunting Act.” Initial Decision
at 4. That said, Mr. Littauer testified that Wildlife Ser-
vices operates under a permit from NDOW for aerial
hunting and mountain lions had not, at the time of the
alleged incident, been approved under the permit for
aerial hunting. Mr. Littauer also testified that Mr.
Strader’s allegations, if true, would have represented “a
violation of agency policy at the very least.” Id.
9 STRADER v. AGRICULTURE
demonstrated that its processing of Mr. Strader’s final
pay and 2009 workers’ compensation claim was unaf-
fected by his whistleblowing allegations.” Id.
Mr. Strader petitioned the Board for review and on
March 24, 2011, the Board denied his petition, finding
that it did not meet the Board’s regulatory criteria.
Strader v. Dep’t of Agric., Nos. SF1221090692-W-1,
SF1221090907-W-1, 116 M.S.R.P. 352 (March 24, 2011)
(Table). Thus, the administrative judge’s initial decision
became the final decision of the Board. On May 20, 2011,
Mr. Strader sought review in this court. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(9).
II. DISCUSSION
This court’s review of decisions by the Board in whis-
tleblower and other cases is limited. We will only over-
turn a decision of the Board if it is “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed;
or (3) unsupported by substantial evidence.” 5 U.S.C. §
7703(c). Substantial evidence is “such relevant evidence
as a reasonable mind might accept as adequate to support
a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197,
229 (1938).
A
A “protected disclosure” is a disclosure which “an em-
ployee . . . reasonably believes evidences (i) a violation of
any law, rule, or regulation, or (ii) gross mismanagement,
a gross waste of funds, an abuse of authority, or a sub-
stantial and specific danger to public health or safety.” 5
U.S.C. § 2302(b)(8)(a). To establish a protected disclosure
STRADER v. AGRICULTURE 10
under the WPA, an employee must demonstrate by a
preponderance of the evidence that he disclosed informa-
tion that he reasonably believed evidenced a violation of
any law, rule, or regulation. Id. § 2302(b)(8). A reason-
able belief exists where “a disinterested observer with
knowledge of the essential facts known to and readily
ascertainable by the employee [could] reasonably conclude
that the actions of the government evidence” such wrong-
doing. Lachance v. White, 174 F.3d 1378 (Fed. Cir. 1999).
The employee need not prove an actual violation to sup-
port a reasonable belief. Kahn v. Dep’t of Justice, 618
F.3d 1306, 1315 (Fed. Cir. 2010).
In addition to establishing a protected disclosure, an
employee seeking relief under the WPA must show that
his disclosure was a contributing factor in the adverse
action. 5 U.S.C. § 1221(e)(1). Satisfaction of the “knowl-
edge/timing” test—i.e., whether the official taking the
personnel action knew of the disclosures and took the
personnel action within a period of time such that a
reasonable person could conclude that the disclosure was
a contributing factor in the personnel action—establishes
as a prima facie matter that the disclosure is a contribut-
ing factor to the personnel action. See Kewley v. Dep’t of
Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir.
1998). Here, the parties do not dispute that Mr. Strader
has satisfied the “knowledge/timing” test and thereby
established that his disclosures were a contributing factor
in the agency’s decision to take a personnel action against
him.
If the employee establishes that a protected disclosure
was a contributing factor, the burden shifts to the agency
to establish by clear and convincing evidence that it would
have taken the action even in the absence of the protected
disclosure. 5 U.S.C. § 1221(e)(2); Kewley, 153 F.3d at11 STRADER v. AGRICULTURE
1363. Here, the administrative judge determined that the
agency established by clear and convincing evidence that
it would have terminated Mr. Strader’s position in the
absence of his disclosures. Therefore, even if Mr. Strader
is correct that he made a protected disclosure, he is not
entitled to relief if substantial evidence supports the
administrative judge’s determination that the agency
proved it would have terminated him in the absence of his
disclosures.
In assessing whether an agency has met its burden,
the Board looks at 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 situation. See Carr v. Social Sec.
Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999). Mr.
Strader attacks the evidence and the administrative
judge’s reasoning with respect to all three factors.
B
As noted above, the administrative judge not only
found that there were no protected disclosures here, but
also concluded that even if Mr. Strader’s disclosures were
protected, the agency proved by clear and convincing
evidence that it still would have terminated Mr. Strader
in the absence of his disclosures. On appeal, Mr. Strader
argues that the administrative judge’s determination that
he did not make protected disclosures is unsupported by
substantial evidence. Namely, Mr. Strader contends that
the administrative judge gave undue weight to certain
witnesses’ testimony over others, ignored inconsistencies
in testimony, and disregarded contradictory evidence.
STRADER v. AGRICULTURE 12
For the reasons discussed below, we conclude that sub-
stantial evidence supports the administrative judge’s
determination that the agency proved it still would have
terminated Mr. Strader in the absence of his disclosures.
Accordingly, we need not reach the issue of whether Mr.
Strader in fact made protected disclosures.
The question of whether Mr. Strader’s employment
ended as a result of his aerial hunting allegations appears
to turn, in large measure, on Mr. Strader’s employment
status. In addressing the first Carr factor, the agency
contends that it presented strong evidence to the adminis-
trative judge that Mr. Strader was a term employee
whose employment was limited to the duration of Project
17. On the other hand, Mr. Strader asserts that he was
not a term employee, but rather, a permanent employee.
According to Mr. Strader, the applicable regulation pro-
vides that temporary appointments are for a year or less,
and may be extended for not more than an additional
year. See 5 C.F.R. § 213.104(b)(1) (“Agencies may make
temporary appointments for a period not to exceed 1 year
. . . . Except as provided in paragraph (b)(3) of this sec-
tion, agencies may extend temporary appointments for no
more than 1 additional year (24 months of total ser-
vice).”). If extended beyond twenty-four months, Mr.
Strader asserts that temporary appointments become
permanent. Here, Mr. Strader had been in his position
for four years at the time of his termination and therefore,
argues that he should have been treated as a permanent
employee.
Mr. Strader’s reliance on 5 C.F.R. § 213.104(b)(1) is
unavailing. To be sure, 5 C.F.R. § 213.104(a)(1) explains
that “temporary appointments . . . are made for a speci-
fied period not to exceed 1 year and are subject to the
time limits in paragraph (b) of this section.” However,
13 STRADER v. AGRICULTURE
“[t]ime-limited appointments made for more than 1 year
are not considered to be temporary appointments, and are
not subject to these time limits.” Id. (emphasis added).
Beginning on January 8, 2006, Mr. Strader received a
series of term appointments, not to exceed (“NTE”) thir-
teen months. Because his appointments were for thirteen
months, the time limits in 5 C.F.R. § 213.104(b)(1) do not
apply. 3 Moreover, it is undisputed that all of Mr.
Strader’s appointments “were created to perform predator
management duties pursuant to Project 17.” Initial
Decision at 20. “It is further undisputed that from its
inception in 2005, Project 17 was expressly budgeted as a
‘5-year project,’ ending . . . June 30, 2009.” Id. While Mr.
Strader claims that he was unaware that his job would
end with Project 17 and that agency policy was to offer
additional work to good employees, the administrative
judge noted that on August 24, 2008, Mr. Strader sent an
email to Mr. Bennett seeking a new position and ac-
knowledging that “[t]hese NDOW projects are touchy
deals” and that he “want[ed] a job that is secure.” Id. at
28. For these reasons, substantial evidence supports the
administrative judge’s determination that Mr. Strader’s
tenure was never transformed into a permanent position,
3 Mr. Strader also relies on the testimony of Teres
Culver, a former budget analyst at Wildlife Services. At
the hearing, Ms. Culver testified that after an NTE
employee has been with the agency for two years, NTE
dates are no longer required and even though the NTE
employee is not technically a permanent employee, the
NTE employee is considered and treated like a permanent
employee. However, Ms. Culver’s testimony is contra-
dicted by the fact that throughout his four years of em-
ployment, Mr. Strader continued to receive term
appointments with specific NTE dates.
STRADER v. AGRICULTURE 14
but always remained contingent upon the duration of
Project 17.
It is true that Mr. Strader’s term was allowed to ex-
pire a few months before the end of Project 17. Indeed,
Mr. Strader’s final thirteen-month appointment expired
on April 9, 2009, while Project 17 officially ended on June
30, 2009. The administrative judge, however, relied on
substantial evidence supporting the agency’s explanation
for the gap between these two dates. Mr. Jensen testified
that the agency received funding from the State of Ne-
vada through a reimbursable contract and that the
agency was required to submit reimbursement requests
quarterly. Accordingly, Mr. Jensen wished to complete
the project in time to submit a request for reimbursement
before the end of the quarter. Initial Decision at 21, n.5.
Mr. Bennett testified that the agency ended two other
projects early as well. Id. at 21.
Mr. Strader also argues that even if he were consid-
ered a term employee, he would not have been terminated
absent his disclosures because the agency had new work
for him to do and funding to pay him. Mr. Strader notes
that the $3 surcharge for hunting licenses that funded his
position continued and that the 2010 budget provided for
a new Wildlife Specialist position for a new aerial project
(Project 22), which is the same job that Mr. Strader
performed on Project 17. However, the 2010 budget was
not promulgated until August 2009, while Mr. Strader’s
employment ended in April 2009. What is more, Mr.
Strader’s position was contingent upon NDOW contract-
ing with and giving money to Wildlife Services; NDOW’s
$3 surcharge did not automatically provide funds with
which Wildlife Services could extend Mr. Strader’s ap-
pointment. Although Mr. Strader argues that he could
have been assigned to work as “ground crew” on aerial
15 STRADER v. AGRICULTURE
Project 22, Mr. Bennett and Mr. Jensen testified that no
one has ever been appointed to perform such a specialized
role. Rather, Project 22 funding was used to cover ground
crew work by multiple individuals in different positions.
Additionally, the administrative judge relied on undis-
puted testimony by Mr. Jensen that at least some inter-
mittent wildlife duties associated with aerial Project 22
were already being performed by a retired state employee.
At bottom, substantial evidence supports the administra-
tive judge’s implicit determination that even absent his
disclosures, Mr. Strader would not have been offered a
new position on Project 22.
With regard to the second Carr factor, Mr. Strader
argues that the agency did not prove a lack of retaliatory
motive by clear and convincing evidence. Mr. Strader
contends that even though Mr. Jensen and Mr. Bennett
did not directly participate in the alleged aerial shooting,
they were implicated as managers of the individuals
involved and therefore had a retaliatory motive in allow-
ing Mr. Strader’s term to expire. Mr. Strader also com-
plains that Mr. Miller’s investigation into the alleged
aerial shootings was insufficient and is therefore evidence
of retaliation. Additionally, Mr. Strader argues that his
January 2009 threat to contact the FBI supports the
existence of a retaliatory motive. Finally, Mr. Strader
alleges that Mr. Jensen openly acknowledged during a
March 6, 2009, conversation that Mr. Strader was being
terminated as result of his disclosures.
Substantial evidence, however, supports the adminis-
trative judge’s determination that the agency did not have
a strong retaliatory motive to allow Mr. Strader’s term to
expire. As an initial matter, it is unlikely that either Mr.
Jensen or Mr. Bennett was implicated by Mr. Strader’s
allegations. Unlike Carr, where the “protected disclo-
STRADER v. AGRICULTURE 16
sures related to the management of the office and consti-
tuted criticisms of [one of the managers who was] . . .
eventually removed from the position” he held, Mr.
Strader did not make broad allegations against the
agency or suggest any link between the alleged aerial
shooting and poor management. 185 F.3d at 1322-23.
Nevertheless, Mr. Bennett and Mr. Jensen investigated
Mr. Strader’s allegations several times over. Mr. Miller’s
was just one of the investigations conducted. Moreover,
the record shows that Mr. Miller was an experienced
investigator with twenty years of experience in the mili-
tary as an intelligence officer, an interrogator, and an
investigator. Additionally, Mr. Miller testified that Mr.
Jensen and Mr. Bennett did not direct his investigation
and he was not controlled in any way by the agency. But
even setting Mr. Miller’s findings aside, none of these
inquiries, including one undertaken by NDOW, uncovered
any evidence to support Mr. Strader’s claim.
The timeline of events also supports the administra-
tive judge’s findings with regard to retaliatory animus.
Mr. Bennett and Mr. Jensen learned of Mr. Strader’s
accusations in December 2007, but three months later, in
March 2008, Mr. Strader received the same mid-year
performance appraisal that he had received in prior years,
and his appointment was renewed for another thirteen-
month period. And in August 2008, Mr. Strader thanked
Mr. Bennett for an “award and gifts” he had received in
recognition of his superior performance in hunting coyo-
tes. In response to this evidence, Mr. Strader contends
that it was his February 2009 complaint to the FBI that
triggered the agency’s retaliatory animus. However, the
administrative judge noted that both Mr. Bennett and Mr.
Jensen testified that they were unaware that Mr. Strader
had contacted the FBI until April 8, 2009, the day before
his term expired. Mr. Strader suggests that Mr. Littauer
17 STRADER v. AGRICULTURE
could have informed Mr. Jensen and Mr. Bennett that in
a January 2009 phone conversation, Mr. Strader threat-
ened to contact the FBI. However, there is no evidence in
the record that Mr. Littauer ever told Mr. Jensen or Mr.
Bennett about Mr. Strader’s threat to report the alleged
aerial shootings to the FBI. In fact, Mr. Strader took
affirmative steps to convince Mr. Littauer that he was not
going to report the alleged aerial shootings to the FBI.
While the administrative judge considered Mr. Strader’s
claim that on March 6, 2009, Mr. Jensen indicated to Mr.
Strader that he was being terminated as result of his
aerial hunting allegations, the administrative judge
ultimately found that Mr. Strader’s testimony on the
issue was less credible than Mr. Jensen’s testimony,
especially given that Mr. Strader’s term was renewed the
previous year despite his aerial hunting allegations. This
court has “held that ‘an evaluation of witness credibility is
within the discretion of the Board and that, in general,
such evaluations are “virtually unreviewable” on appeal.’”
Kahn, 618 F.3d at 1313 (citing King v. Dep’t of Health &
Human Servs., 133 F.3d 1450, 1453 (Fed. Cir. 1998)
(quoting Clark v. Dep’t of the Army, 997 F.2d 1466, 1473
(Fed. Cir. 1993))). Mr. Strader notes that deference is
limited to situations where “the administrative judge’s
credibility determination is based on observations of the
demeanor of a testifying witness such that the adminis-
trative judge’s findings were explicitly or implicitly based
on such observation of demeanor.” Haebe v. Dep’t of
Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Regardless,
however, of whether the administrative judge’s credibility
determination here is demeanor based, it is supported by
substantial evidence in the record.
With regard to the third Carr factor, Mr. Strader ar-
gues that there is no evidence of similar action taken
against employees who are not whistleblowers. Mr.
STRADER v. AGRICULTURE 18
Strader is mistaken. As noted by the administrative
judge, the agency took similar action against another
term employee, Bill Fry (not to be confused with Derril
Fry discussed above). Even though there is no evidence
that Bill Fry engaged in any whistleblowing activity, his
term was allowed to expire at the end of his project in
March 2009. Mr. Strader contends that Bill Fry is not an
appropriate comparator because, according to Ms. Culver,
Mr. Jensen did not like Bill Fry and had been seeking to
get rid of him. Yet other evidence, including Mr. Jensen’s
own testimony, contradicts Ms. Culver’s statements and
her credibility on this issue. Accordingly, substantial
evidence supports the administrative judge’s determina-
tion that similar action was taken against a similarly
situated employee who was not a whistleblower.
Lastly, Mr. Strader complains that the agency did not
prove that Mr. Jensen did not interfere with his workers’
compensation claim and final pay. Mr. Strader’s theory is
based on Ms. Thiesse’s testimony that Mr. Jensen in-
structed her “not to remind Gary [Strader] about” the
paperwork. Ms. Thiesse also testified that Mr. Jensen
took Mr. Strader’s file from her, which she claims was
unusual. Additionally, Ms. Thiesse expressed concern
that Mr. Jensen controverted Mr. Strader’s claim with an
attached letter rather than simply checking the box on
the form. She also told Mr. Strader that “I think [Mr.
Jensen]’s trying to make it seem like you never sent it
back.” With respect to his final pay, Mr. Strader notes
that he sent several emails to Mr. Jensen in May 2009
inquiring as to the status of his final payment. On May
18, 2009, Mr. Strader sent another email to Mr. Jensen,
but this time, he copied Mr. Littauer. Mr. Strader’s final
payment was processed that same day, almost a month
after the payment was initially requested. According to
Mr. Strader, Mr. Jensen’s delay in responding to his
19 STRADER v. AGRICULTURE
emails shows that Mr. Jensen interfered with his final
payment.
We conclude, however, that substantial evidence sup-
ports the administrative judge’s determination that Mr.
Jensen did not interfere with Mr. Strader’s workers’
compensation claim and final pay. The record shows that
Mr. Jensen was advised to controvert the claim by a
workers’ compensation specialist, Marquess Commodore.
Ms. Commodore based her advice on the presence of a
number of fraudulent indicators, including the fact that
the injury occurred two days before Mr. Strader’s last day
of employment, that Mr. Jensen had trouble reaching him
after the injury, and that Mr. Strader had filed a number
of previous claims. But irrespective of Ms. Theisse’s
refuted testimony, the record shows that Mr. Strader’s
paperwork was received by the agency, and then timely
forwarded to the Department of Labor on April 30, 2009.
On May 5, 2009, the claim was approved by the Depart-
ment of Labor. Indeed, this timeline of events supports
the administrative judge’s finding that “the agency’s
handling of the appellant’s [workers’ compensation] claim
was unexceptional, and unaffected by his whistleblowing
activity.” Initial Decision at 31.
Mr. Strader’s contention that the administrative
judge erred in finding that Mr. Jensen did not interfere
with his final pay is similarly flawed. Emily Carlson, a
human resources processing assistant, processed Mr.
Strader’s final pay. She testified that at the time of the
processing, she was unfamiliar with any of the individu-
als in Mr. Strader’s supervisory chain. Ms. Carlson also
testified that there was nothing unusual about the proc-
essing of the payment. In fact, the process took approxi-
mately the same time as the processing for another
employee whose appointment lapsed during this same
STRADER v. AGRICULTURE 20
period, Bill Fry. Tellingly, an audit was performed that
resulted in an increase in Mr. Strader’s payment beyond
what he had expected. In sum, substantial evidence
supports the administrative judge’s finding that Mr.
Strader’s allegations did not affect the agency’s processing
of Mr. Strader’s finally payment.
We have also considered Mr. Strader’s remaining ar-
guments and find them unpersuasive. Accordingly, we
hold that the administrative judge’s finding that the
agency proved it would have allowed Mr. Strader’s term
to expire in the absence of his disclosures is supported by
substantial evidence. We therefore affirm the Board’s
conclusion that the agency did not violate the WPA when
it allowed Mr. Strader’s term to expire.
III. CONCLUSION
For the foregoing reasons, the decision of the Board is
affirmed.
COSTS
Each party shall bear its own costs.
AFFIRMED