UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

FROYLAN MENDIOLA,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBERS

SF-1221-13-0440-W-1

SF-0752-13-0436-I-1

DATE: September 21, 2015

THIS ORDER IS NONPRECEDENTIAL1

Acrivi Coromelas, Esquire, Anne Richardson, Esquire, Barbara Enloe 

Hadsell, Esquire, and Mary T. Ross, Esquire, Pasadena, California, for 

the appellant.

Ronald P. Ackerman, Esquire, Culver City, California, for the appellant.

Amy L. Dell, San Diego, California, for the agency.

Janet W. Muller, Chula Vista, California, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

REMAND ORDER

¶1 The agency has filed a petition for review of the initial decision in these 

individual right of action (IRA) and removal appeals, which ordered corrective 

action in the IRA appeal, reversed the appellant’s removal, and found that the 

appellant proved his affirmative defenses of whistleblower reprisal and 

retaliation for protected equal employment opportunity (EEO) activity. For the 

reasons discussed below, we GRANT the agency’s petition for review, VACATE 

the initial decision, and REMAND the case to the regional office for further 

adjudication in accordance with this Order.

BACKGROUND

¶2 The appellant was a GS-12 Border Patrol Agent (BPA) with the agency’s

Office of Border Control’s Murrieta Station (Murrieta) in Temecula, California. 

Mendiola v. Department of Homeland Security, MSPB Docket No. SF-0752-13-

0436-I-1, Initial Appeal File (IAF), Tab 7 at 25-26. On April 16, 2012, he filed a 

complaint with the Department of Justice (DOJ) alleging that other law 

enforcement agencies were engaging in racial profiling against individuals of 

Hispanic/Latino descent and that his superiors were supporting such activity. 

IAF, Tab 14, Exhibit (Ex.) Y. 2

 In particular, the appellant alleged as follows: 

(1) in response to his allegation that deputy sheriffs from the Riverside County 

Sheriff’s Department were engaging in racial profiling, his watch commander, 

Field Operations Supervisor V.J.,

3 ordered the appellant’s patrol group to arrest 

every alien that was turned over to Border Patrol by other law enforcement 

agencies, regardless of whether the alien was likely to abscond; (2) on March 25, 

 2 On April 1, 2012, the appellant sent an email to agency attorney C.C. making many of 

the allegations that he subsequently raised in his DOJ complaint. See IAF, Tab 14, 

Ex. W. In his email, the appellant stated that he would file a complaint with DOJ if the 

agency did not “rectify” the racial profiling matter. Id. at 005.

3 V.J. was the appellant’s second-level supervisor. See IAF, Tab 34, Hearing 

Transcript, Day 1 (HT1) at 140, lines 11-19 (testimony of H.V.). 
3

2012, V.J. ordered the appellant to alter an arrest report to conceal racial 

profiling by the U.S. Forest Service; (3) on April 9, 2012, Supervisory BPA 

H.V. 4 told the appellant’s patrol group that he expected them to “go out there and 

catch ‘bodies’”; and (4) on April 15, 2012, a coworker informed the appellant 

that Murrieta’s lead management official, Patrol Agent in Charge W.D., told his 

counterparts at other agencies that Border Patrol could “pick up any and all of 

their aliens.” Id. at 1-2.

¶3 On May 9, 2012, the appellant filed an addendum to his DOJ complaint

alleging that, on May 7, 2012, he witnessed Acting Supervisory BPA R.D. direct 

a subordinate to falsify an arrest report. IAF, Tab 14, Ex. AA. On May 20, 

2012, the appellant filed another complaint with DOJ alleging that he had been 

harassed by one of his coworkers because of his opposition to racial profiling

and that management officials had refused to take any corrective action against 

the coworker. Id., Ex. CC.

¶4 On June 6, 2012, H.V. assigned the appellant to ride with canine handler 

J.M., whose vehicle was not equipped with a rack for the appellant’s assigned 

rifle. IAF, Tab 7 at 103 (written statement of H.V.). The appellant objected to 

the assignment and retrieved his rifle from the armory, as well as the keys to his 

assigned sedan; however, H.V. told the appellant that he would not be allowed to 

take his rifle out to the field that day and instructed him to return the rifle and 

keys. Id. at 104. The appellant refused to do so and a standoff ensued, with the 

appellant telling H.V., “[I]f you want [the rifle] that bad, if you don’t want me to 

take it out to the field, you can take it and put it back yourself.” IAF, Tab 36, 

Hearing Transcript, Day 2 (HT2) at 103, lines 1-2 (testimony of the appellant). 

H.V. stated that he was “not prepared to do that” and reassigned the appellant to 

“inside duties,” at which point the appellant returned the rifle. HT2 at 103,

lines 3, 5-7; IAF, Tab 7 at 105 (written statement of H.V.).

 4 H.V. was the appellant’s immediate supervisor. See HT1 at 140, lines 8-10; 

HT1 at 142, lines 21-24 (testimony of H.V.).
4

¶5 H.V. reported the incident to V.J., who spoke with the appellant the 

following day and discussed the Employee Assistance Program with him. IAF, 

Tab 7 at 90, 94 (written statement of V.J.) According to V.J., the appellant 

replied, “I’m fine and I don’t mean to imply any violence in telling you this but I 

also have personal guns at home, just so you’ll know.” Id. at 94. V.J. then asked 

the appellant if he was trying to tell him “something more” than that he owned 

guns, and the appellant denied any other meaning. Id. at 94-95.

¶6 H.V., V.J., the appellant, and three other employees who witnessed the 

June 6, 2012 standoff incident submitted written accounts of the incident to 

W.D. 5 Id. at 90-108. On June 7, 2012, W.D. forwarded the statements to Chief 

Patrol Agent P.B., along with a memorandum in which W.D. recommended that a

fitness-for-duty examination (FFDE) be conducted on the appellant to determine 

his mental stability to perform the duties of a law enforcement officer. Id. at 89.

On June 13, 2012, the agency revoked the appellant’s authority to carry a 

Government-issued firearm, IAF, Tab 14, Ex. JJ, and the appellant filed a 

complaint with DOJ regarding that action, see id., Ex. KK-005. 

¶7 On June 15, 2012, the appellant filed a complaint with the Disclosure Unit 

of the Office of Special Counsel (OSC) alleging that H.V.’s June 6, 2012 order 

denying him access to his rifle and the agency’s subsequent revocation of his 

authority to carry a Government-issued firearm constituted retaliation for his 

whistleblowing activity. IAF, Tab 14, Ex. KK. The appellant raised the 

following disclosures in his OSC complaint: his DOJ complaints of April 16, 

May 20, and June 13, 2012; his May 9, 2012 addendum to his April 16, 2012

complaint; and his report to his command staff in September 2010 that H.V. had 

ordered him to deny a prisoner medical treatment. Id. at 005-006; see IAF, Tab 

14, Exs. G, I (memoranda from the appellant regarding the 2010 incident). In 

 5 Those employees were Supervisory BPA J.H., Assistant Patrol Agent in Charge W.M., 

and R.D. See IAF, Tab 7 at 96 (statement of J.H.), 101-02 (statement of W.M.), and 

107-08 (statement of R.D.).
5

July 2012, OSC’s Disclosure Unit forwarded the appellant’s complaint to its 

Complaints Examining Unit. IAF, Tab 14, Ex. MM.

¶8 After reviewing the written accounts of the June 6, 2012 incident, Division 

Chief for Operational Support K.R. issued an order on August 13, 2012,

instructing the appellant to undergo a general FFDE. IAF, Tab 7 at 81-83; HT1 

at 115, lines 8-15 (testimony of K.R.). Following that examination, K.R. issued 

an order on September 20, 2013, directing the appellant to undergo a psychiatric 

FFDE. IAF, Tab 7 at 79-80. The appellant then amended his OSC complaint to 

allege that the agency ordered him to undergo the FFDEs in reprisal for his 

whistleblowing activity.

6

 See IAF, Tab 14, Ex. VV-001. Later, A.M. conducted 

a psychiatric FFDE of the appellant and concluded that he could not safely and 

efficiently perform all of the duties of his position. IAF, Tab 7 at 69. 

Consulting psychiatrist P.P. reviewed the results of the appellant’s psychiatric 

FFDE and concurred with them. Id. at 74.

¶9 Based on the medical reports of A.M. and P.P., on February 22, 2013, the 

agency proposed removing the appellant for inability to perform the essential 

duties of his position due to a medical condition. Id. at 41-43. While the 

proposed removal was pending, OSC terminated its inquiry into the appellant’s 

allegations and issued a closure letter dated March 15, 2013, and notice of Board 

appeal rights. IAF, Tab 14, Ex. XX. Following a response to the proposed 

removal by the appellant, IAF, Tab 7 at 30-40, the deciding official sustained the 

charge, and the appellant was removed effective April 23, 2013, id. at 25-29.

 6 Although the record does not include any submissions to OSC from the appellant 

referencing the FFDEs, OSC’s February 22, 2013 letter advising the appellant of its 

preliminary decision to close its inquiry into his whistleblower complaint states that he 

alleged that the agency ordered him to undergo the FFDEs in reprisal for his 

whistleblowing activity. See IAF, Tab 14, Ex. VV-001. Thus, the appellant evidently 

amended his OSC complaint after the agency issued the FFDE orders to add a claim of 

reprisal based on those orders.
6

¶10 On April 30, 2013, the appellant filed a Board appeal challenging his 

removal and the agency’s order directing him to undergo a psychiatric FFDE. 

IAF, Tab 1 at 3; see IAF, Tab 20. He requested a hearing. IAF, Tab 1 at 2. On 

his Board appeal form, he raised claims of whistleblower reprisal and retaliation 

for protected EEO activity (assisting a coworker in his EEO complaint against 

the agency).

7

 Id. at 4-6. The regional office docketed the appellant’s claims as 

separate IRA and removal appeals. IAF, Tab 2; Mendiola v. Department of 

Homeland Security, MSPB Docket No. SF-1221-13-0440-W-1, Initial Appeal 

File (W-1 IAF), Tab 3. The administrative judge joined the appeals for hearing 

purposes. IAF, Tab 8.

¶11 Following a hearing, the administrative judge granted the appellant’s 

request for corrective action in his IRA appeal, reversed the appellant’s removal, 

and ordered the appellant reinstated to duty. IAF, Tab 31, Initial Decision (ID). 

Regarding the IRA appeal, the administrative judge found that the agency 

ordered the appellant to undergo the FFDE in retaliation for his whistleblowing 

activities and protected EEO activity. ID at 2-13, 25 n.21. Regarding the 

removal appeal, the administrative judge found that the agency failed to prove 

the charge, ID at 13-20, and that the appellant proved his affirmative defenses,

ID at 20-25. 8

 7 The appellant also checked the box on the appeal form indicating that he was raising 

an affirmative defense of race discrimination. IAF, Tab 1 at 7. During the hearing, the 

administrative judge stated, “[T]he affirmative defense of retaliation based on national 

origin, which I guess was attached to the original appeal, has been withdrawn.” HT1 at 

4, lines 22-24. The record does not indicate that the appellant raised a claim of national 

origin discrimination, however. Thus, it appears that the administrative judge intended 

to say that the appellant had withdrawn his affirmative defense of race discrimination.

8 At the beginning of the hearing, the administrative judge stated that, prior to going on 

the record, “the appellant clarified that the only affirmative defense was retaliation for 

protected prior EEO activity.” HT1 at 4, lines 17-19. Nonetheless, the administrative 

judge analyzed the affirmative defense of retaliation for “protected whistleblowing 

activity” in the initial decision. See ID at 25. On remand, the administrative judge 

should clarify whether the appellant is raising an affirmative defense of whistleblower 

reprisal.
7

¶12 The agency has filed a petition for review of the initial decision. Mendiola

v. Department of Homeland Security, MSPB Docket No. SF-1221-13-0440-W-1, 

Petition for Review (PFR) File, Tab 1. The appellant has filed a response in 

opposition to the petition for review, and the agency has filed a reply to the 

appellant’s response. PFR File, Tabs 10, 12.

ANALYSIS

The Appellant’s IRA Appeal 

The applicable legal standards

¶13 The Board has jurisdiction over an IRA appeal if the appellant has 

exhausted his administrative remedies before OSC and makes nonfrivolous 

allegations that: (1) he engaged in whistleblowing activity by making a 

protected disclosure; and (2) the disclosure was a contributing factor in the 

agency’s decision to take or fail to take a personnel action. 9

 Yunus v. 

Department of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). The 

appellant bears the burden of showing that he exhausted his remedies before 

OSC, and the Board’s jurisdiction is limited to the issues he raised before OSC. 

Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 14 (2004); see Sazinski v. 

Department of Housing & Urban Development, 73 M.S.P.R. 682, 685 (1997)

(holding that the scope of an IRA appeal is limited to those disclosures raised 

before OSC).

¶14 After establishing the Board’s jurisdiction in an IRA appeal, the appellant 

then must establish a prima facie case of whistleblower retaliation by proving by 

preponderant evidence that he made a protected disclosure that was a 

contributing factor in a personnel action taken against him. 5 U.S.C. 

§ 1221(e)(1); Mattil v. Department of State, 118 M.S.P.R. 662, ¶ 11 (2012). A 

 9 It is undisputed that the agency’s order directing the appellant to undergo a psychiatric 

FFDE constitutes a personnel action pursuant to 5 U.S.C. § 2302(a)(2)(A)(x). PFR File, 

Tab 1 at 25.
8

protected disclosure is a disclosure that an appellant reasonably believes 

evidences a violation of any law, rule, or regulation, gross mismanagement, a 

gross waste of funds, an abuse of authority, or a substantial and specific danger 

to public health or safety. 5 U.S.C. § 2302(b)(8)(A); Chambers v. Department of 

the Interior, 515 F.3d 1362, 1367 (Fed. Cir. 2008). A reasonable belief exists if 

a disinterested observer with knowledge of the essential facts known to and 

readily ascertainable by the appellant could reasonably conclude that the actions 

of the Government evidence one of the categories of wrongdoing listed in section 

2302(b)(8)(A). Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).

¶15 A protected disclosure is a contributing factor if it affects an agency’s 

decision to take a personnel action in any way. Dorney v. Department of the 

Army, 117 M.S.P.R. 480, ¶ 14 (2012). The most common way of proving the 

contributing factor element is the “knowledge/timing test.” Chavez v. 

Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 27 (2013). Under that test, 

an appellant can prove that his disclosure was a contributing factor in a 

personnel action through evidence that the official taking the personnel action 

knew of the whistleblowing disclosure 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. Id. Once an appellant has 

satisfied the knowledge/timing test, he has demonstrated that a protected 

disclosure was a contributing factor in a personnel action. Gonzalez v. 

Department of Transportation, 109 M.S.P.R. 250, ¶ 20 (2008).

¶16 If the appellant makes out a prima facie case of whistleblower retaliation, 

the Board shall order such corrective action as it considers appropriate unless the 

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

same personnel action in the absence of the protected disclosure. 5 U.S.C. 

§ 1221(e)(1)-(2); Chambers v. Department of the Interior, 116 M.S.P.R. 17, ¶ 12 

(2011). 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 
9

to be established; it is a higher standard than the “preponderance of the 

evidence” standard. Sutton v. Department of Justice, 94 M.S.P.R. 4, ¶ 18 (2003), 

aff’d, 97 F. App’x 322 (Fed. Cir. 2004); 5 C.F.R. § 1209.4(e). Evidence only 

clearly and convincingly supports a conclusion when it does so in the aggregate 

considering all the pertinent evidence that fairly detracts from that conclusion. 

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

It is unclear what disclosures are at issue in this appeal.

¶17 During the proceedings below, the administrative judge did not direct the 

appellant to identify the disclosures at issue in his IRA appeal, and it is unclear 

what those disclosures are. In response to a question on the appeal form asking 

him to identify each disclosure, the appellant listed only his April 16, 2012 DOJ 

complaint. IAF, Tab 1 at 11. In his prehearing submission, however, the 

appellant indicated that his whistleblowing activity also included his April 1, 

2012 email to C.C., the May 9, 2012 addendum to his April 16, 2012 DOJ 

complaint, his DOJ complaint of May 20, 2012, his June 5, 2012 email to H.V. 

and V.J. forwarding an email that contained a newspaper article about racial 

profiling, and his OSC complaint. IAF, Tab 14 at 6-7, Exs. W, AA, CC, FF, KK. 

Further, in response to a question on the appeal form asking for a chronology of 

the events concerning the action that the appellant claimed was based on 

whistleblowing, he also referenced his August 7, 2012 memorandum to P.B. 

complaining of ongoing harassment, and he specifically noted that he submitted 

the memorandum 1 week before K.R.’s order directing him to take a general 

FFDE. See IAF, Tab 1 at 12; Tab 14, Ex. QQ.

¶18 Not only are we unable to determine exactly what disclosures are at issue in 

this IRA appeal based on the appellant’s submissions, but the administrative 

judge’s findings regarding the appellant’s protected disclosures also are

inconsistent and unclear. In the initial decision, the administrative judge found 
10

that the appellant’s complaints to C.C., 10 DOJ, and OSC in early 2012 disclosing 

what he believed to be racial profiling at Murrieta constituted protected activity 

under 5 U.S.C. § 2302(b)(8). ID at 11. The administrative judge then stated that 

these complaints occurred “from April 1 to June 5, 2012,” and that “the last 

protected disclosure” took place 1 day before H.V.’s order prohibiting the 

appellant from taking his assigned rifle with him on an assignment. ID at 11. As 

noted above, however, the appellant filed his OSC complaint 9 days after H.V.’s 

June 6, 2012 order directing him not to take his rifle with him on an assignment. 

See IAF, Tab 14, Ex. KK. Moreover, as previously mentioned, the order was one 

of the alleged instances of whistleblower reprisal that the appellant cited in his 

OSC complaint and, thus, predated the OSC complaint. See id. at 005. 

Therefore, we find that the administrative judge’s statement indicating that the 

last protected disclosure occurred on June 5, 2012, is inconsistent with his 

finding that the appellant’s OSC complaint was one of the protected disclosures 

at issue in his IRA appeal.

¶19 In light of the administrative judge’s statement regarding the date of the last 

protected disclosure and the timing of the appellant’s OSC complaint, it appears 

that the administrative judge was not referring to that complaint as “the last 

protected disclosure.” Based on our review of the record, it seems that the 

administrative judge was instead referring to the appellant’s June 5, 2012 email 

to H.V. and V.J. regarding the newspaper article about racial profiling. See IAF, 

Tab 14, Ex. FF. Thus, the administrative judge appears to have determined that 

the appellant’s June 5, 2012 email was one of the protected disclosures at issue 

in this appeal.

¶20 As previously stated, however, the scope of an IRA appeal is limited to 

those disclosures raised before OSC. Sazinski, 73 M.S.P.R at 685. The record 

indicates that the appellant did not identify either his June 5, 2012 email or 

 10 The administrative judge apparently was referring to the appellant’s April 1, 2012 

email to C.C. IAF, Tab 14, Ex. W.
11

another disclosure that the administrative judge found protected—his April 1, 

2012 email to C.C.—in his OSC submissions. In that regard, we note that the 

appellant did not raise either of those emails as a disclosure in the complaint he 

filed with OSC’s Disclosure Unit,

11 IAF, Tab 14, Ex. KK, nor is there any 

indication in the record that he subsequently raised those emails as disclosures

before OSC’s Complaints Examining Unit.

12 Thus, it appears that the appellant 

did not exhaust his administrative remedy before OSC regarding either of those 

emails.

¶21 Due to the lack of clarity regarding the appellant’s disclosures and the other 

adjudicatory errors in the initial decision, which are discussed further below, it is 

necessary to remand the IRA appeal for further adjudication and issuance of a 

new initial decision. On remand, the administrative judge should issue an order 

directing the appellant to identify each disclosure at issue in this appeal and 

show that he exhausted his administrative remedy before OSC regarding each 

alleged protected disclosure. Once the appellant makes such a showing, the 

administrative judge should determine which disclosures are protected and 

clearly identify those disclosures in the new initial decision.

 11 The appellant did include his April 1, 2012 email to C.C. in the supporting 

documentation he faxed to OSC’s Disclosure Unit on June 18, 2012, in conjunction 

with his OSC complaint. IAF, Tab 14, Ex. KK-009. Even assuming, however, that 

submitting the email to OSC’s Disclosure Unit was tantamount to raising the email as a 

disclosure, making disclosures to OSC’s Disclosure Unit does not satisfy the exhaustion 

requirement under 5 U.S.C. § 1214(a)(3). See Mason v. Department of Homeland 

Security, 116 M.S.P.R. 135, ¶ 16 (2011). Although OSC’s Disclosure Unit forwarded 

the appellant’s complaint to the Complaints Examining Unit in July 2012, the record 

does not indicate that it also provided the Complaints Examining Unit any of the 

supporting documentation that the appellant faxed to the Disclosure Unit on June 18, 

2012. See IAF, Tab 14, Ex. MM.

12 OSC’s February 22, 2012 letter advising the appellant of its preliminary decision to 

close its inquiry into his complaint identifies various disclosures that the appellant 

apparently raised with OSC after filing his OSC complaint in June 2012; however, 

neither the appellant’s April 1, 2012 email to C.C. nor his June 5, 2012 email to H.V. 

and V.J. are among those disclosures. See IAF, Tab 14, Ex. VV.
12

The administrative judge’s contributing factor analysis is incomplete.

¶22 An initial decision must identify all material issues of fact and law, 

summarize the evidence, resolve issues of credibility, and include the 

administrative judge’s conclusions of law and his legal reasoning, as well as the 

authorities on which that reasoning rests. Spithaler v. Office of Personnel 

Management, 1 M.S.P.R. 587, 589 (1980). Given his decision to grant the 

appellant’s request for corrective action in his IRA appeal, the administrative 

judge evidently concluded that the appellant established the contributing factor 

element of his whistleblower reprisal claim. He did not explicitly make such a 

finding in the initial decision, however. Moreover, although the administrative 

judge seems to have determined that the appellant proved contributing factor 

pursuant to the knowledge/timing test, the analysis of the contributing factor 

element of the appellant’s claim in the initial decision directly addresses only the 

timing prong of that test. See ID at 11 (finding that the timing of the appellant’s 

complaints to C.C., DOJ, and OSC clearly satisfied the knowledge/timing test for 

demonstrating that those disclosures were a contributing factor in the FFDE 

order inasmuch as the order was issued within a period of time such that a 

reasonable person could conclude that the disclosures were a contributing 

factor).

¶23 Consistent with Spithaler, after the administrative judge identifies the 

appellant’s protected disclosures on remand, he should make explained findings 

regarding the contributing factor element of the appellant’s whistleblower claim. 

If he determines that the appellant established contributing factor pursuant to the 

knowledge/timing test, then he should make explained findings regarding both 

prongs of the test and directly address the agency’s argument that the knowledge 

prong of the test has not been satisfied because, according to the agency, none of 

the agency officials involved in the decision to issue the FFDE order knew of the 

appellant’s protected disclosures. PFR File, Tab 1 at 26, 32.
13

The administrative judge applied an incorrect standard in assessing the 

strength of the agency’s evidence in support of its action.

¶24 Once an appellant establishes a prima face case of whistleblowing, the 

burden shifts to the agency to prove by clear and convincing evidence that it 

would have taken the same personnel action in the absence of the appellant’s 

whistleblowing. See Jenkins v. Environmental Protection Agency, 118 M.S.P.R. 

161, ¶ 16 (2012). In determining whether an agency has met this burden, the 

Board will consider the following factors: (1) the strength of the agency’s 

evidence in support of its action; (2) the existence and strength of any motive to 

retaliate on the part of the agency officials who were involved in the decision; 

and (3) any evidence that the agency takes similar actions against employees 

who are not whistleblowers but who are otherwise similarly situated. Carr v. 

Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). The 

Board does not view these factors as discrete elements, each of which the agency 

must prove by clear and convincing evidence. Rather, the Board will weigh the 

factors together to determine whether the evidence is clear and convincing as a 

whole. Lu v. Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015).

¶25 The administrative judge did not explicitly apply the Carr factors in 

determining whether the agency met the clear and convincing evidence burden, 

nor did he mention the Carr factors during the proceedings below. See, e.g.,

IAF, Tab 20 (order advising parties of the applicable burdens of proof). 

Nonetheless, the initial decision indicates that the administrative judge did 

consider the first two Carr factors inasmuch as he found that K.R.’s decision to 

issue the FFDE order was based on “scant” evidence and was motivated by 

retaliation for the appellant’s whistleblowing activity. ID at 12-13.

¶26 In assessing the strength of the agency’s evidence in support of its action, 

the administrative judge stated that an FFDE is appropriate generally when an 

agency “has a reasonable belief, based on objective evidence, that: (1) an 

employee’s ability to perform essential job functions will be impaired by a 
14

medical condition; or (2) an employee will pose a direct threat due to a medical 

condition.” ID at 11 (citing Harris v. Postmaster General, EEOC Appeal No. 

0120050086, 2007 WL 788176 (Mar. 6, 2007)).

¶27 The administrative judge found, in essence, that the agency failed to meet 

either prong of the above standard. Regarding the first prong, the administrative 

judge found that there was no evidence that the appellant’s ability to perform his 

duties was impaired by a medical condition. ID at 12. As for the second prong, 

the administrative judge stated that a belief that an employee poses a direct 

threat due to a medical condition may not be based on evidence indicating that 

the employee has been rude, hostile, or disrespectful to a supervisor or that he 

“exhibited irrational behavior” when he “rudely interrupted, confronted and 

refused to obey” his supervisor. ID at 12 (citing Cerge v. Secretary of Homeland 

Security, EEOC Appeal No. 0120060363, 2008 WL 559447 (Feb. 20, 2008); 

Whiting v. U.S. Postal Service, EEOC Appeal No. 01A14923, 2003 WL 

21145527 (May 8, 2003)).

¶28 The administrative judge erred in applying the above standard in assessing 

the strength of the agency’s evidence. The Office of Personnel Management’s 

regulations set forth at 5 C.F.R. part 339, subpart C, govern an agency’s 

authority to require a medical examination. Moe v. Department of the Navy, 

119 M.S.P.R. 555, ¶ 10 (2013). When an employee occupies a position that is 

subject to medical standards or physical requirements, 5 C.F.R. § 339.301(b)(3)

authorizes an agency to order a medical examination whenever there is a direct 

question about the employee’s continued capacity to meet the physical or 

medical requirements of the position. Under 5 C.F.R. § 339.301(e)(1), an agency 

may order a psychiatric examination (including a psychological assessment) 

when the result of a current general examination that the agency has the 

authority to order under section 339.301 indicates no physical explanation for 

behavior or actions that may affect the safe and efficient performance of the 

individual or others.
15

¶29 As a BPA, the appellant was subject to physical requirements and medical 

standards, including psychological standards. See IAF, Tab 11 at 26-27. 

Therefore, we find that the administrative judge should have applied the 

standards set forth at 5 C.F.R. § 339.301 in evaluating the strength of the 

agency’s evidence in support of its FFDE order.

The administrative judge seemed to find that agency officials had a motive 

to retaliate against the appellant because they were mentioned in the 

appellant’s disclosures without first determining that those officials knew 

about the disclosures.

¶30 When applying the second Carr factor, the Board will 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 officials who influenced the decision. 

See Carr, 185 F.3d at 1326. In the initial decision, the administrative judge 

noted that H.V., V.J., R.D., and W.D. were mentioned in the appellant’s 

disclosures, and he found that their statements summarizing the June 6, 2012 

incident, as filtered through W.D., led directly to the ordering of the FFDEs. ID 

at 11. The administrative judge further found that H.V.’s June 6th order was 

motivated by retaliation for the appellant’s protected whistleblowing activity and 

that K.R.’s decision to order the FFDEs, which, the administrative judge found,

relied exclusively on W.D.’s “excessive extrapolation and speculation,” similarly 

resulted from such motivation. ID at 12 n.7 (citing Staub v. Proctor Hospital, 

131 S. Ct. 1186, 1194 (2011)).

¶31 Although his analysis of the second Carr factor is not entirely clear, the 

administrative judge seemed to find that the agency officials who submitted the 

statements that K.R. considered in ordering the FFDE had a motive to retaliate 

against the appellant because they were mentioned in his disclosures. The 

administrative judge then apparently imputed their retaliatory motive to K.R. so 

as to conclude that the FFDE was motivated by the appellant’s whistleblowing 

activity. ID at 11-12 & n.7. As noted above, however, the administrative judge 

did not address the issue of whether the agency officials who provided the 
16

statements regarding the June 6, 2012 incident knew about the pertinent

disclosures. The officials clearly would not have had any motive to retaliate 

against the appellant for those disclosures if they were unware of them. Thus,

we find that the administrative judge erred by finding a retaliatory motive on the 

part of agency officials because they were mentioned in the appellant’s 

disclosures without first determining that those officials were aware of the 

disclosures.

The administrative judge did not address the third Carr factor.

¶32 In finding that the agency did not meet its clear and convincing evidence 

burden, the administrative judge did not consider the third Carr factor—the 

treatment of similarly situated nonwhistleblowers. See ID at 11-13. During the 

proceedings below, the appellant stated that the agency treated another BPA who 

was not a whistleblower differently by granting that employee’s request to take 

his own vehicle on patrol when the employee objected to riding with J.M. IAF, 

Tab 14 at 16-17. The administrative judge should have addressed this argument 

in analyzing whether the agency satisfied its clear and convincing evidence 

burden.

¶33 On remand, if the administrative judge finds that the appellant established a 

prima facie case of whistleblower reprisal, he then must determine whether the 

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

have ordered the psychiatric FFDE absent the appellant’s protected disclosures. 

In analyzing that issue, the administrative judge should apply each of the Carr

factors, reconsider the record as a whole, and make thoroughly reasoned findings 

that address both the evidence supporting his conclusions and any contradictory 

evidence.

The Board lacks the authority to review the appellant’s claim of retaliation 

for his prior protected EEO activity.

¶34 As noted above, the administrative judge found that the agency ordered the 

appellant to submit to the FFDE in retaliation for his participation in EEO
17

complaints filed by another agency employee. ID at 21. Such retaliation is a 

prohibited personnel practice under 5 U.S.C. § 2302(b)(9)(B). When the agency 

issued the order for the psychiatric FFDE, the Board lacked jurisdiction to 

consider an appellant’s claim that a personnel action was taken as a result of a 

prohibited personnel practice described at 5 U.S.C. § 2302(b)(9)(B). Although 

the Whistleblower Protection Enhancement Act of 2012 (WPEA) expanded the 

Board’s jurisdiction in IRA appeals to include claims of retaliation based on 

activity protected by section 2302(b)(9)(B), the WPEA did not become effective 

until after the agency issued the FFDE order, and the Board has held that this 

change in the law has no retroactive effect. See Hooker v. Department of 

Veterans Affairs, 120 M.S.P.R. 629, ¶¶ 9-15 (2014). Consequently, we find that 

the Board does not have the authority to review the appellant’s claim that the 

agency issued the FFDE order in retaliation for his prior EEO activity. 

Therefore, the administrative judge should not have addressed the merits of that 

claim in the initial decision in the IRA appeal.

The Appellant’s Removal Appeal

The administrative judge applied an incorrect standard in analyzing 

whether the agency proved its charge.

¶35 In considering whether the agency proved its charge, the administrative 

judge stated that, in order to remove an employee for inability to perform the 

essential duties of his position due to a medical condition, the agency must 

establish a connection between that condition and “observed deficiencies in 

performance or conduct, or a high probability of hazard when the condition may 

result in injury to the employee or others because of the kind of work the 

employee does.” ID at 13 (quoting Spencer v. Department of the Navy, 

73 M.S.P.R. 15, 21 (1997)).

¶36 Applying this standard, the administrative judge found that the agency 

presented no evidence that the appellant was deficient in the performance of his 

duties at any time prior to his termination and noted that the agency did not, in 
18

its proposal or decision letter, make any allegation or conclusion that the 

appellant presented a high probability of hazard because he had a disabling 

condition that may result in injury to himself or others because of the kind of 

work he does. ID at 16. The administrative judge acknowledged that A.M.’s

psychiatric report did make such a conclusion, inasmuch as A.M. stated that the 

appellant represented a potential threat of harm to himself or others. Yet, the 

administrative judge found that this conclusion “seem[ed] to be entirely 

unsupported by the rest of the report . . . .” ID at 16, 18. The administrative 

judge therefore found that the agency failed to prove by preponderant evidence

its charge of inability to perform the essential duties of a position due to a 

medical condition. ID at 20.

¶37 In Slater v. Department of Homeland Security, 108 M.S.P.R. 419, ¶ 11

(2008), the Board overruled Spencer and other Board cases to the extent that they 

applied the “high probability of hazard” standard. The Board held that this

standard is not appropriate in evaluating an employee’s fitness to perform the 

duties of a position, for positions with medical standards or physical 

requirements or positions subject to medical evaluation programs. Id., ¶¶ 7, 11. 

The Board held, moreover, that to justify disqualification from such a position 

based upon a medical condition alone, 13 the agency must show that the condition 

itself is disqualifying, its recurrence cannot be ruled out, and the duties of the 

position are such that a recurrence would pose a reasonable probability of 

substantial harm. Id., ¶ 11; see 5 C.F.R. § 339.206.

¶38 As previously noted, the appellant’s position had medical standards and 

physical requirements. See IAF, Tab 11 at 26-27. Consequently, we find that,

pursuant to Slater, the administrative judge should have applied the standard set 

forth in 5 C.F.R. § 339.206 in determining whether the agency proved its charge. 

 13 The Board in Slater explained that a removal as medically disqualified is equivalent 

to a removal for inability to perform for medical reasons. Slater, 108 M.S.P.R. 419, 

¶ 7.
19

¶39 Because the administrative judge applied an incorrect legal standard in 

analyzing whether the agency proved its charge, we find it appropriate to remand 

the appellant’s removal appeal for further adjudication. On remand, the 

administrative should apply the standard set forth in 5 C.F.R. § 339.206 in 

determining whether the agency proved its charge and issue a new initial 

decision, giving appropriate consideration to any additional relevant evidence 

that is developed on remand. See Viana v. Department of the Treasury, 

114 M.S.P.R. 659, ¶ 8 (2010). As previously mentioned, he also should clarify 

whether the appellant is raising an affirmative defense of whistleblower reprisal

in the removal appeal. To the extent appropriate, the initial decision may 

incorporate the administrative judge’s previous findings concerning the 

appellant’s affirmative defenses. See id.

ORDER

¶40 For the reasons discussed above, we REMAND this case to the regional office 

for further adjudication and issuance of a new initial decision in accordance with 

this Remand Order.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board