UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

GEORGE DUGGAN,

Appellant,

v. 

DEPARTMENT OF DEFENSE,

Agency. 

DOCKET NUMBER

SF-1221-14-0544-W-2

DATE: September 13, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

John Ota, Esquire, Alameda, California, for the appellant.

Mark Hostetter, San Jose, California, for the appellant. 

David Gallagher, Fort Belvoir, Virginia, for the agency. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

denied his request for corrective action in his individual right of action (IRA) 

appeal. Generally, we grant petitions such as this one only when: the initial 

decision contains erroneous findings of material fact; the initial decision is based 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

on an erroneous interpretation of statute or regulation or the erroneous application 

of the law to the facts of the case; the administrative judge’s rulings during either 

the course of the appeal or the initial decision were not consistent with required 

procedures or involved an abuse of discretion, and the resulting error affected the 

outcome of the case; or new and material evidence or legal argument is available 

that, despite the petitioner’s due diligence, was not available when the record 

closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. 

§ 1201.115). After fully considering the filings in this appeal, we conclude that 

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 by this Final Order to supplement the contributing factor 

analysis, we AFFIRM the initial decision. 

BACKGROUND

¶2 The appellant, a Senior Auditor with the Defense Contract Audit Agency 

(DCAA), filed a timely IRA appeal challenging several personnel actions that he 

alleged were taken because he made seven alleged protected disclosures. 

Duggan v. Department of Defense, MSPB Docket No. SF-1221-14-0544-W-1, 

Appeal File (W‐1 AF), Tab 1. The appellant exhausted the whistleblower 

complaint procedures with the Office of Special Counsel. W‐1 AF, Tab 3,

Subtab 4c. After discovery and a hearing, the administrative judge issued an 

initial decision denying the appellant’s request for corrective action. Duggan v. 

Department of Defense, MSPB Docket No. SF-1221-14-0544-W-2, Appeal File 

(W‐2 AF), Tab 21, Initial Decision (ID). 

¶3 The appellant has filed a petition for review, arguing that the administrative 

judge mischaracterized the nature of his disclosures, abused his discretion in 

denying his motion to compel discovery and not approving certain witnesses for 

the hearing, and erred in applying the law to the facts of the case. Petition for 

Review (PFR) File, Tab 3. The agency has opposed the petition for review. 
3

PFR File, Tab 5. The appellant filed a reply to the agency’s opposition. PFR 

File, Tab 6. 

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge did not abuse his discretion by denying the appellant’s 

motion to compel discovery and request for additional witnesses at the hearing. 

¶4 The appellant argues that the administrative judge abused his discretion 

in denying, in part, his motion to compel discovery. PFR File, Tab 3 at 28. 

Specifically, the appellant alleges that his document requests sought evidence to 

establish disparate treatment. Id. The Board will not reverse an 

administrative judge’s discovery rulings absent an abuse of discretion. Wagner v. 

Environmental Protection Agency, 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d 

1236 (Fed. Cir. 1993). After reviewing the disputed discovery requests, we find 

that the administrative judge did not abuse his discretion. 

¶5 The appellant argues that the administrative judge should have granted his 

motion to compel regarding document requests 1‐26, which he characterizes as 

seeking documents that referenced him to and from “superiors” and other agency 

officials who are likely to have been involved in the adverse personnel actions 

that are at issue in this case. PFR File, Tab 3 at 28; W‐2 AF, Tab 14 at 8. The 

administrative judge granted the appellant’s motion to compel responses to 

document requests 1‐4 and 7‐8, which concerned documents to and from the 

management officials responsible for the alleged retaliatory personnel actions. 

W‐1 AF, Tab 14 at 29‐35, Tab 25 at 2. 

¶6 The administrative judge did not abuse his discretion by denying the motion 

to compel responses to document requests 11‐12, which requested documents to 

and from a manager who works in the agency’s Internal Review Directorate 

(IRD). In his disclosure on the Government Executive website, the appellant 

accused IRD of covering management malfeasance and of being used to keep 

employee complaints out of the hands of the Inspector General. W‐1 AF, Tab 22,
4

Subtab A‐09. He provided extensive testimony at the hearing concerning his 

belief that IRD treated complaints filed by supervisors differently than complaints 

filed by nonsupervisory employees and failed to recommend discipline when 

supervisors committed misconduct. Hearing Transcript (HT), Volume (Vol.) 1 

at 133‐52. The record also contains extensive documentation concerning the IRD 

investigations that the appellant alleges are relevant to his appeal. W‐1 AF, 

Tab 22, Subtabs H‐29 – H‐37. We find that the appellant’s argument that IRD 

investigations did not result in discipline against supervisory employees is not 

relevant to the issues in this appeal, and the administrative judge did not abuse 

his discretion in denying the appellant’s request for documents from an 

IRD manager. 

¶7 The administrative judge did not abuse his discretion by denying the motion 

to compel responses to document requests 21‐24, which requested documents to 

and from two attorneys who represented the agency in litigation involving the 

appellant. W‐1 AF, Tab 14 at 35. The agency objected to these document 

requests based on attorney-client privilege. Id. We agree that these 

communications are protected by the attorney-client privilege. An appellant can 

be denied discovery of relevant information that is protected by the 

attorney‐client privilege. Grimes v. Department of the Navy, 99 M.S.P.R. 7, 

¶ 8 (2005). 

¶8 The administrative judge did not abuse his discretion in denying the 

appellant’s motion to compel responses to document requests 9‐10, 17‐20, and 

25‐26, which requested documents about the appellant to and from the head of 

the agency, the Regional Director, the appellant’s fourth-level supervisor, and the 

deciding official’s supervisor. W‐1 AF, Tab 14 at 31, 33‐34. In considering the 

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

who were involved in the decisions, the Board must consider evidence of other 
5

officials not directly involved but who may have influenced the decision by a 

retaliatory motive. Whitmore v. Department of Labor, 680 F.3d 1353, 1370 (Fed. 

Cir. 2012). However, there is no indication that any of these managers influenced 

the decision on the proposed suspension or the performance appraisal at issue in 

this appeal. The agency assigned a deciding official for the proposed suspension 

who was not in the appellant’s chain of command and had not been the subject of 

any of his disclosures and complaints. HT, Vol. 9 at 185‐93. The appellant 

requested and received every document referencing his disclosure to the 

Government Executive website. W‐1 AF, Tab 5, Subtabs K‐08 – K‐12, K‐24 –

K‐41. The appellant requested and received emails to and from the managers 

who participated in the personnel actions at issue. W‐1 AF, Tab 25. The 

appellant has failed to show how the additional documents he requested would 

have affected the administrative judge’s findings. See Jones v. Department of 

Health & Human Services, 119 M.S.P.R. 355, ¶ 18 (stating that the Board will not 

find reversible error in an administrative judge’s discovery rulings absent an 

abuse of discretion that prejudiced the appellant’s substantive rights), aff’d, 

544 F. App’x 976 (Fed. Cir. 2013). 

¶9 The administrative judge did not abuse his discretion by denying the 

appellant’s motion to compel responses to document requests 13‐16, which 

requested documents about the appellant to and from the two human resources 

specialists who advised management concerning the personnel action at issue in 

this appeal. W‐1 AF, Tab 14 at 32. The human resources specialists were not the 

subject of any of the appellant’s disclosures, and the record contains no evidence 

that they were otherwise motivated to influence the responsible management 

officials to retaliate against the appellant. Because the administrative judge

granted the appellant’s motion to compel discovery of all the documents 

concerning the appellant to and from the responsible management officials during 

the relevant time period, any documents to or from the human resources 
6

specialists to the responsible management officials already were subject 

to discovery. 

¶10 The appellant also argues that the administrative judge abused his discretion 

by denying his motion to compel discovery for interrogatories 9-16 and document 

requests 28‐37, which he characterizes as seeking evidence concerning the 

treatment of comparators. PFR File, Tab 3 at 28‐29. Document request 28 

sought all documents related to every disciplinary action taken against employees 

in the DCAA Western Region for a 7‐year period. Id. Records concerning 

whether the agency took action in response to similar misconduct by other 

employees who were not whistleblowers could be relevant in determining whether 

the agency met its burden to show by clear and convincing evidence it would 

have taken the same personnel actions against the appellant absent his 

disclosures. McGrath v. Department of the Army, 83 M.S.P.R. 48, ¶ 11 (1999). 

In response to interrogatory 10, the agency provided the appellant with documents 

concerning disciplinary actions taken against DCAA Western Region employees 

for comments similar to those made by the appellant. W‐1 AF, Tab 16 at 5‐6. 

The record contains written decisions in adverse actions taken against five 

employees disciplined, at least in part, for making inappropriate statements. 

W‐1 AF, Tab 20. The administrative judge did not abuse his discretion by 

denying the appellant’s motion to compel discovery seeking this same 

information via additional document requests and interrogatories. 

¶11 The appellant’s interrogatories 11‐17 and document requests 34‐35 sought 

evidence concerning the disposition of investigations by the Department of 

Defense Inspector General and the DCAA’s IRD. W‐1 AF, Tab 14 at 25‐28, 38. 

The appellant argues that his discovery requests concerning cases investigated by 

IRD relate to possible similar cases of discipline. PFR File, Tab 6 at 14. The 

disposition of these investigations is irrelevant to this case; therefore, we find that 

the administrative judge did not abuse his discretion in denying the appellant’s 
7

motion to compel responses to these document requests. 2 Document request 37 

concerns fiscal year 2013 performance awards. Id. at 38. The agency responded 

to the request by stating that there were no responsive documents because it

did not provide performance awards for fiscal year 2013. Id. This response is 

responsive to the appellant’s request. 

¶12 The appellant also argues that the administrative judge abused his discretion 

by denying him certain witnesses at the hearing. PFR File, Tab 3 at 29. The 

appellant requested 17 witnesses. W‐2 AF, Tab 7. The administrative judge 

allowed 11 of those witnesses to testify. 3

 W‐2 AF, Tab 10. The appellant 

objected to being denied the testimony of five witnesses. W‐2 AF, Tab 11. On 

petition for review, the appellant argues that the administrative judge abused his 

discretion in denying his request for four witnesses. 4

 PFR File, Tab 3 at 29. 

¶13 An administrative judge has wide discretion to control the proceedings, 

including holding prehearing conferences for the simplification of issues and 

ruling on exhibits and witnesses. 5 C.F.R. § 1201.41(b). Here, the administrative 

judge properly assessed that the testimony of the denied witnesses would have 

been irrelevant or duplicative of the approved witnesses’ testimony. See 

Benton v. Department of Labor, 25 M.S.P.R. 430, 436 (1984) (stating that an 

administrative judge has wide discretion to exclude witnesses the appellant 

has not shown would offer relevant, material, and nonrepetitious evidence). 

 2 The appellant was allowed to provide extensive testimony at the hearing concerning 

these IRD investigations. HT, Vol. 1 at 133‐52. The record also contains documents 

concerning the specific investigation that is the subject of document request 35. 

W‐1 AF, Tab 22, Subtabs H‐29 - H‐37. Therefore, the appellant has not shown that he 

was prejudiced by the administrative judge denying his motion to compel discovery in 

response to this document request. 

3 Four of the appellant’s 11 witnesses were also on the agency’s witness list. W‐1 AF, 

Tab 20 at 1‐2. 

4 The appellant has abandoned his claim that the administrative judge erred by denying 

his request to have the head of the agency testify at the hearing. PFR File, Tab 3 

at 29‐30. 
8

¶14 The appellant argues that two of the denied witnesses would have testified 

about the lack of discipline for disrespectful employees who were not 

whistleblowers, and the other two witnesses would have “themselves been 

evidence of disparate treatment.” Id. at 29‐30. The record is completely 

developed regarding the issue of disparate treatment. HT, Vol. 4 at 190‐201, 

226‐36 (testimony establishing that there were no comparable cases of 

misconduct because the appellant was the only employee charged with a third 

offense of disrespectful conduct). The parties also stipulated to the fact that no 

employee was disciplined for calling the appellant “unprofessional.” Id. at 237. 

The record, moreover, contains testimony that several managers were not 

disciplined based on complaints about their “bad behavior.” HT, Vol. 9

at 120‐21. The appellant has not established that the testimony of these 

additional witnesses would not have been unduly repetitious. 

The administrative judge appropriately determined that three of the appellant’s

disclosures were not protected whistleblowing. 

¶15 In reviewing the merits of an IRA appeal based on an allegation of 

whistleblower reprisal, the Board must examine whether the appellant proved by 

preponderant evidence that he made protected disclosures under 5 U.S.C. 

§ 2302(b)(8), and that his whistleblowing disclosure was a contributing factor in 

an agency personnel action; if so, the Board must order corrective action unless 

the agency established by clear and convincing evidence that it would have taken 

the same personnel action in the absence of the disclosures. Chavez v. 

Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 17 (2013). An individual 

making a disclosure may be protected from retaliation for whistleblowing based 

on his reasonable belief that his disclosure evidenced one or more of the 

categories of wrongdoing listed in 5 U.S.C. § 2302(b)(8), even when his belief is 

mistaken. Drake v. Agency for International Development, 543 F.3d 1377, 1382 

(Fed. Cir. 2008). The test for determining if an employee’s belief regarding the 
9

disclosed matter is reasonable is whether a disinterested observer with knowledge 

of the essential facts known and readily ascertainable by the employee could 

reasonably conclude that the actions of the agency evidence the wrongdoing 

disclosed. Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999). 

¶16 The appellant alleges that the initial decision mischaracterized his 

disclosures by stating that they all concern DCAA’s access‐to‐records policy. 

PFR File, Tab 3 at 13. The initial decision states that the appellant’s seven 

alleged protected disclosures, during the time that he was part of a team 

examining the financial records of the Environmental Chemical Corporation 

(ECC), all relate to his belief that management was not following the agency’s 

access-to-records policy. ID at 4. The alleged disclosures were identified in the 

initial decision as follows: 

1. At a January 22, 2013, morning meeting the appellant told the 

new Branch Manager that DCAA management was not following its 

access to records policy at the ECC audits; 

2. At an afternoon meeting that same day, he told the Branch 

Manager that her supervisor was not following the denial to access to 

records policy and the Generally Acceptable Government Audit 

Standards (GAGAS); 

3. On February 8, 2013, he told the Branch Manager that it was 

inappropriate for her to attempt to manipulate the written record of 

the January 22, 2013, team meeting to make it appear that he had 

acted inappropriately; 

4. On February 14, 2013, he told the Branch Manager that she had 

wrongly interpreted the GAGAS government audit standards 

requirement of candor in audit communications and disrespectfully 

called him and others “unprofessional,” when in fact his statements 

and actions were consistent with professional standards; 

5. In a May 8, 2013, article on the Government Executive website, 

the appellant discussed shortcomings of DCAA agency leadership 

under the Director who took over in 2008; 

6. In a May 15, 2013, comment on the Government Executive 

website, the appellant rebutted the agency Director's response to the 

May 8, 2013, article on the same website; 
10

7. In an August 29, 2013, e-mail to the Branch Manager and agency 

management the appellant said that the Branch Manager's direct 

order to censor him in a meeting was mismanagement and abuse of 

authority which jeopardized proper oversight of billions of dollars of 

government subcontracts. 

ID at 5‐6. The appellant argues that only two of the disclosures concern the 

access‐to‐records policy. PFR File, Tab 3 at 13-16. Even if the administrative 

judge’s summary of the disclosures was inaccurate, we disagree with the 

appellant’s argument that this reflects a misunderstanding of the nature of the 

disclosures. The initial decision accurately identifies each of the seven alleged 

disclosures. Compare ID at 5‐6, with W‐1 AF, Tab 21 at 5. 

¶17 The appellant also argues that the administrative judge erred by finding 

disclosures three, four, and seven, which the appellant claims concern 

“management abuse,” were not protected disclosures. PFR File, Tab 3 at 14; ID

at 5‐6. For purposes of the Whistleblower Protection Act, an abuse of authority 

occurs when there is an arbitrary or capricious exercise of power by a Federal 

official or employee that adversely affects the rights of any person or results in 

personal gain or advantage to himself or to other persons. Linder v. Department 

of Justice, 122 M.S.P.R. 14, ¶ 15 (2014). The administrative judge appropriately 

found that disclosures three, four, and seven are not protected disclosures of gross 

mismanagement or an abuse of authority as defined by 5 U.S.C. § 2302(b)(8). 

¶18 Disclosure three alleges that the Branch Manager attempted to manipulate 

team meeting minutes. W‐2 AF, Tab 5 at 2; ID at 5. The minutes from the 

meeting were circulated so that the attendees could provide comments. W‐1 AF, 

Tab 22, Subtab A‐03. The Branch Manager, who was one of the attendees, 

commented on items she felt had been left out of the minutes. W‐1 AF, Tab 3,

Subtab 4t at 6. Her comments were not integrated into the minutes, but she 

requested that they be attached. HT, Vol. 4 at 64‐65. Even without the Branch 

Manager’s input, the minutes are consistent with management’s description of the 
11

appellant’s conduct in the notice of proposed suspension. Compare W‐1 AF, 

Tab 22, Subtab A‐02b, with W‐1 AF, Tab 1 at 6‐7. The Branch Manager

testified repeatedly that it was inappropriate to document the appellant’s 

misconduct during the meeting in the minutes. HT, Vol. 4 at 64‐65. The dispute 

over what should and should not be included in the team meeting minutes is a 

philosophical disagreement, and a reasonable person with knowledge of the facts 

readily available to the appellant could not conclude that the Branch Manager’s 

attempt to provide input into the minutes was an arbitrary or capricious exercise 

of power or gross mismanagement. Webb v. Department of the Interior, 

122 M.S.P.R. 248, ¶ 8 (2015) (stating that even under the expanded protections 

afforded to whistleblowers under the Whistleblower Protection Enhancement Act, 

general philosophical disagreements are not protected unless they separately 

constitute a protected disclosure of one of the categories of wrongdoing listed in 

5 U.S.C. § 2302(b)(8)(A)). 

¶19 The appellant also argues that the administrative judge erred by finding that 

disclosure four—that the Branch Manager had wrongly interpreted the GAGAS 

Government audit standards requirement of candor in audit communications and 

disrespectfully called him and others “unprofessional”—was not a protected 

whistleblowing disclosure. ID at 5‐6. The statutory protection for 

whistleblowers is not a weapon in arguments over policy or a shield for 

insubordinate conduct. Webb, 122 M.S.P.R. 248, ¶ 8 (citing O’Donnell v. 

Department of Agriculture, 120 M.S.P.R. 94, ¶ 14 (2013)), aff’d, 

561 F. App’x 926 (Fed. Cir. 2014)). We agree with the administrative judge’s 

conclusion that the appellant’s conduct was insubordinate. ID at 16‐18. 

Moreover, “gross mismanagement” requires that the claimed error in the agency’s 

adoption of or adherence to a policy be a matter that is not debatable among 

reasonable people. White v. Department of the Air Force, 391 F.3d 1377, 1383 

(Fed. Cir. 2004). The appellant’s interpretation of the candor requirement in the 
12

GAGAS is debatable as reflected by the testimony of his fellow DCAA auditors 

who believe that an auditor can fulfill the candor requirement while maintaining a 

respectful demeanor and tone. HT, Vol. 9 at 81‐83, 109‐10, 268‐69. We agree 

with the administrative judge’s finding that this disclosure is not a protected 

disclosure pursuant to 5 U.S.C. § 2302(b)(8). White, 391 F.3d at 1382. 

¶20 Similarly, in disclosure seven, the appellant alleges that he disclosed gross 

mismanagement and an abuse of authority by telling the Branch Manager not to 

censor him during a meeting. W‐1 AF, Tab 22, Subtab A‐17. The appellant 

asked questions during a meeting that his supervisors deemed “inappropriate” for 

the context of the meeting, and he was asked not to ask similar questions during a 

subsequent discussion. Id. A reasonable person with knowledge of the facts 

available to the appellant could not conclude that his supervisors acted arbitrarily 

or capriciously by asking him to “share and use [his insight] in an appropriate 

manner.” Id. We agree with the administrative judge’s conclusion that this 

was not a protected disclosure. Lachance, 174 F.3d at 1381 (stating that a purely 

subjective perspective of an employee is not sufficient for establishing a 

reasonable belief of a protected disclosure under 5 U.S.C. § 2302(b)(8)). 

The appellant proved that his protected disclosures were a contributing factor in 

the personnel actions at issue. 

¶21 The administrative judge found that the four remaining disclosures were 

protected disclosures. ID at 6, 20. Because the administrative judge held a 

hearing, he implicitly found that the appellant made a nonfrivolous allegation that 

his protected disclosures were a contributing factor in the agency’s decisions to 

take personnel actions against him. Mastrullo v. Department of Labor, 

123 M.S.P.R. 110, ¶ 15 (2015). To prove that a disclosure was a contributing 

factor in a personnel action, the appellant only need demonstrate that the fact of, 

or the content of, the protected 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). We find that, because the appellant’s 
13

whistleblower disclosures were cited explicitly in support of the suspension, and 

his performance appraisal also was affected by the tone of his disclosures, he has 

met his burden of proving contributing factor as to those actions. W‐1 AF, Tab 1

at 6‐11, Tab 3, Subtab 4p at 4; Parikh v. Department of Veterans Affairs,

116 M.S.P.R. 197, ¶ 35 (2011) (finding that when specifications in a proposed 

adverse action are grounded in the protected disclosures themselves, the 

disclosures were a contributing factor in the agency’s adverse action decision). 

Additionally, the appellant has met his burden of proving contributing factor for 

the revocation of his telework agreement because that personnel action was the 

result of the lowered performance appraisal. W‐1 AF, Tab 3, Subtab 4o. 

¶22 We modify the initial decision to find that the appellant also has met his 

burden of proving contributing factor regarding his disclosures to the Government 

Executive website concerning his performance rating and the revocation of 

his telework agreement by satisfying the knowledge/timing test. 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. Mastrullo, 123 M.S.P.R. 110, ¶ 18. 

¶23 According to the appellant, he first made contact with the Government

Executive website around March 27, 2013, and his disclosures were first 

published on May 8, 2013. W‐1 AF, Tab 2, Subtabs A‐09 – A‐10; HT, Vol. 7 

at 70‐78. We agree with the administrative judge’s finding that there is no 

evidence that the official responsible for the appellant’s suspension knew about 

his disclosures to the Government Executive website prior to the date that they 

were published. ID at 20. The appellant’s performance rating was signed on 

July 31, 2013, and his telework agreement was revoked on September 3, 2013, 
14

after the managers responsible for those actions became aware of these 

disclosures. W‐1 AF, Tab 3, Subtabs 4o‐4p, Tab 22, Subtab H‐16. Given the 

proximity in time between the appellant’s disclosures to the Government 

Executive website, his performance evaluation, and the revocation of his telework 

agreement, we find that he has demonstrated that those disclosures were a 

contributing factor in those personnel actions by satisfying the knowledge/timing 

test. See Mastrullo, 123 M.S.P.R. 110, ¶ 21 (holding that a personnel action 

taken within approximately 1‐2 years of the appellant’s disclosures satisfies the 

knowledge/timing test). Once an appellant has satisfied the knowledge/timing 

test, an administrative judge must find that the appellant has shown that his 

whistleblowing was a contributing factor in the personnel action at issue even if,

after a complete analysis of all the evidence, a reasonable factfinder could not 

conclude that the appellant’s whistleblowing was a contributing factor in the 

personnel action. Schnell v. Department of the Army, 114 M.S.P.R. 83, 

¶ 21 (2010). 

The administrative judge appropriately found that the agency established by clear 

and convincing evidence that it would have taken the same personnel actions

absent the appellant’s protected disclosures. 

¶24 In determining whether the agency has shown by clear and convincing 

evidence that it would have taken the same personnel action in the absence of the 

whistleblowing, the Board considers the strength of the agency’s evidence in 

support of its personnel action, the strength of any motive to retaliate on the part 

of the agency officials who were involved in the decision, and any evidence that 

the agency takes similar actions against employees who are not whistleblowers, 

but who are otherwise similarly situated. Carr v. Social Security Administration, 

185 F.3d 1318, 1323 (Fed. Cir. 1999). The appellant argues that the 

administrative judge erred in applying the Carr factors and the agency has not 

established by clear and convincing evidence that it would have taken the same 

personnel actions in the absence of the whistleblowing disclosures. 
15

¶25 Specifically, he alleges that the proposed suspension contains false 

information. PFR File, Tab 3 at 3, 18‐20. However, none of the alleged false 

statements identified by the appellant directly relate to his charged misconduct, 

i.e., communicating with his supervisors in an insubordinate and disrespectful 

manner. Id. at 18‐20. The facts the appellant disputes concern the surrounding 

circumstances of the ECC audits. Id. Even if the appellant is correct about the 

errors, those errors are not relevant to whether the agency would have suspended 

him absent his whistleblowing disclosures. 

¶26 As to the first Carr factor, we agree with the administrative judge’s finding 

that the strength of the agency’s evidence in support of the suspension action is 

ample in light of the appellant’s prior discipline for similar misconduct. ID at 19. 

The appellant admits that he interrupted his supervisor repeatedly during a 

meeting and told her that she was incorrect in front of other colleagues. HT, 

Vol. 7 at 169‐72. He also testified that he knew what he was doing displeased 

her, yet he continued to interrupt and dominate the meeting anyway. Id.

at 179‐80. We also agree with the administrative judge’s finding that the 

appellant acknowledged at the hearing that he said virtually everything ascribed 

to him in the proposal notice. ID at 15; HT, Vol. 7 at 169‐81. As found by the 

administrative judge, the tone of the appellant’s email was aggressive, 

derogatory, unprofessional, disruptive, and rude. ID at 18. It is well settled that 

the statutory protections for whistleblowers are not a shield for insubordinate 

conduct. Lachance, 174 F.3d at 1381. The narrative for the appellant’s 

performance appraisal was based in part on these same instances of inappropriate 

conduct toward his supervisors. HT, Vol. 9 at 123. Thus, the strong evidence 

supporting the suspension also supports the performance appraisal, which resulted 

in revocation of the appellant’s telework agreement. 

¶27 Prior to the hearing, the agency rescinded the appellant’s suspension, raised 

his performance evaluation, and reinstated his right to telework. ID at 2 n.1. The 
16

appellant has cited to Rumsey v. Department of Justice, 120 M.S.P.R. 259, ¶ 33 

(2013), for the proposition that rescinding a disciplinary action after an employee 

files a grievance could be considered an admission of a retaliatory motive. We 

do not agree with the appellant’s interpretation of the holding in this case. The 

agency in Rumsey did not rescind a personnel action. The appellant in Rumsey

was the prevailing party in a grievance concerning a personnel action, and the 

agency cancelled that action as a result of the adverse finding. Id. The Board 

found that the agency in Rumsey did not have strong evidence supporting the 

personnel action based, in part, on the finding of a third party. There is no 

similar finding in this appeal. Based on our review of the record, we agree with 

the administrative judge’s finding that the agency presented strong evidence in 

support of the personnel actions at issue in this appeal. ID at 7‐24. 

¶28 The second Carr factor is the strength of any motive to retaliate on the part 

of the agency officials who were involved in the personnel actions. Carr,

185 F.3d at 1323. The Board cannot decide whether the agency has carried its 

burden by clear and convincing evidence by looking only at the evidence that 

supports the conclusion reached. Whitmore, 680 F.3d at 1367-68. In determining 

whether an agency has proven by clear and convincing evidence that it would 

have taken an alleged retaliatory action absent an appellant’s whistleblowing, the 

administrative judge should consider any motive to retaliate on the part of the

agency official who ordered the action, as well as any motive to retaliate on the 

part of other agency officials who influenced the action. Herman v. Department 

of Justice, 119 M.S.P.R. 642, ¶ 16 (2013). Given the appellant’s long history as a 

whistleblower, which is well documented in the record, the agency officials 

responsible for the personnel actions at issue could have had a motive to retaliate 

against him. 

¶29 The third Carr factor is any evidence that the agency takes similar actions 

against employees who are not whistleblowers, but who are otherwise similarly 

situated. Carr, 185 F.3d at 1323. The human resources specialist who advised 
17

the deciding official testified that there were no comparable employees, i.e., other 

employees disciplined repeatedly for disrespectful conduct. HT, Vol. 4 

at 193‐94. There was considerable testimony at the hearing concerning 

disciplinary actions taken against other employees for disrespectful conduct, and 

the reasons those actions were distinguishable from the appellant’s. Id.

at 195‐226. The agency also presented undisputed testimony that other 

employees who received minimally successful performance evaluations had their 

telework agreements revoked. Id. at 179‐80, 204. Considering the appellant 

continued to repeat the same misconduct despite previous suspensions, we agree 

with the administrative judge’s analysis and finding that the strength of the 

agency’s evidence in support of both the suspension and performance appraisal 

outweighs the motive to retaliate. ID at 7‐25. 

¶30 The appellant also argues that the initial decision contains an erroneous 

finding of fact by concluding that the Branch Manager did not call him 

“unprofessional” in response to his first protected disclosure. PFR File, Tab 3 

at 25. We do not agree. The initial decision summarizes the testimony of two 

witnesses who testified that they did not hear the Branch Manager call the 

appellant “unprofessional,” but makes no findings regarding this fact. ID at 8. 

¶31 In sum, we discern no error in the administrative judge’s conclusion that the 

agency proved by clear and convincing evidence that it would have taken the 

personnel actions at issue in the absence of the appellant’s protected 

whistleblowing disclosures. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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 have the right to 

request review of this final decision by the U.S. Court of Appeals for the 

Federal Circuit.
18

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. 

Dec. 27, 2012). If you choose to file, be very careful to file on time. The court 

has held that normally it does not have the authority to waive this statutory 

deadline and that filings that do not comply with the deadline must be dismissed. 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the U.S. Court of Appeals for the 

Federal Circuit or any court of appeals of competent jurisdiction. The court of 

appeals must receive your petition for review within 60 days after the date of this 

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose 

to file, be very careful to file on time. You may choose to request review of the 

Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other 

court of appeals of competent jurisdiction, but not both. Once you choose to seek 

review in one court of appeals, you may be precluded from seeking review in any 

other court. 

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in

title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the 

United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

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, and 11. Additional 
19

information about other 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. 

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 

Merit Systems Protection Board neither endorses the services provided by any 

attorney nor warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board