NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2009-3294 

MARGARET M. CONSIDINE, 

Petitioner, 

v. 

NATIONAL CREDIT UNION ADMINISTRATION, 

Respondent. 

Margaret M. Considine, of Bethlehem, New Hampshire, pro se. 

James R. Sweet, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, for respondent. With him on 

the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, 

and Kenneth M. Dintzer, Assistant Director. 

Appealed from: Merit Systems Protection Board 
NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2009-3294 

MARGARET M. CONSIDINE, 

Petitioner, 

v. 

NATIONAL CREDIT UNION ADMINISTRATION, 

Respondent. 

Petition for review of the Merit Systems Protection Board in PH0432090173-I-1. 

___________________________ 

DECIDED: February 16, 2010 

___________________________ 

Before MICHEL, Chief Judge, PROST and MOORE, Circuit Judges. 

PER CURIAM. 

Margaret Considine appeals from a final decision of the Merit Systems Protection 

Board (Board) affirming a decision of the National Credit Union Administration (NCUA) 

to remove her from her position as a credit union examiner. See Considine v. NCUA, 

No. PH0432090173-I-1 (M.S.P.B. Apr. 22, 2009) (initial decision); Considine v. NCUA, 

No. PH0432090173-I-1 (M.S.P.B. July 4, 2009) (final order denying petition for review). 

For the reasons discussed below, we affirm. 

BACKGROUND 

Ms. Considine worked for NCUA as a credit union examiner at the Region I office 

in Albany, New York. On March 18, 2008, Joanne Black, Ms. Considine’s supervisory 

examiner, sent Ms. Considine a Notice of Unacceptable Performance (Notice). The 
Notice informed Ms. Considine that her overall performance had been found to be 

unacceptable with respect to critical elements one and two of her position: specifically, 

the “District Management, Supervision, and Problem Resolution” and “Job Related 

Knowledge and Skills” elements. The Notice informed Ms. Considine that she was 

being put on a 120-day performance improvement plan (PIP) and that action would be 

initiated to either demote or remove her from the Federal Service if she failed to raise 

her performance for critical elements one and two to a “Minimally Meets” level within the 

120-day period. 

On September 20, 2008, the associate regional director notified Ms. Considine 

that her performance had not improved under the PIP. Therefore, the associate 

regional director proposed to remove Ms. Considine from her position and from the 

Federal Service due to unacceptable performance. Ms. Considine responded to the 

notice of proposed removal both orally and in writing. On November 24, 2008, after 

considering Ms. Considine’s arguments, the regional director issued a decision 

removing her from the Federal Service, effective November 28, 2008. 

Ms. Considine appealed to the Board on December 29, 2008. In a detailed initial 

decision, the administrative judge (AJ) determined that NCUA had shown by substantial 

evidence that it properly removed Ms. Considine from her position for unacceptable 

performance. The AJ also determined that Ms. Considine failed to prove her affirmative 

defenses by a preponderance of the evidence. Therefore, the AJ affirmed NCUA’s 

action removing Ms. Considine from the Federal Service. The AJ’s initial decision 

became final after the Board denied Ms. Considine’s petition for review. See Considine 

v. NCUA, No. PH0432090173-I-1 (M.S.P.B. July 4, 2009). 

2009-3294 2
DISCUSSION 

Ms. Considine appeals from the Board’s final decision, and we have jurisdiction 

under 28 U.S.C. § 1295(a)(9). We must affirm the Board’s decision unless 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). Under this 

standard of review, this court will not overturn an agency decision supported by "such 

relevant evidence as a reasonable mind might accept as adequate to support a 

conclusion.” Lovshin v. Dep’t of Navy, 767 F.2d 826, 844 (Fed. Cir. 1985) (en banc). 

Ms. Considine argues on appeal that NCUA improperly removed her from her 

position. As the AJ observed, NCUA bore the burden of sustaining its decision to 

remove Ms. Considine for unacceptable performance pursuant to the provisions of Title 

5, chapter 43 of the United States Code. To satisfy this burden, NCUA was required to 

prove by substantial evidence that: (1) the Office of Personnel Management [OPM] 

approved its performance appraisal system; (2) Ms. Considine’s performance standards 

were communicated to her; (3) she failed to meet one or more critical element of her 

position; and (4) she was given a reasonable opportunity to improve her performance. 

See Belcher v. Dep’t of the Air Force, 82 M.S.P.R. 230, 231-32 (1999). 

With respect to the first factor, the AJ found that OPM approved NCUA’s 

performance appraisal system by letter dated December 15, 2000. Although Ms. 

Considine now argues on appeal that the OPM letter related to outdated performance 

standards, she failed to raise this argument in the proceedings before the Board. 

2009-3294 3
Therefore, we consider this argument to be waived. See White v. DOJ, 328 F.3d 1361, 

1372 (Fed. Cir. 2003). 

With respect to the second factor, the AJ observed that Ms. Considine testified 

that the performance standards for her position had been communicated to her and that 

she understood critical elements one and two. Further, although Ms. Considine did not 

argue that the standards for her position were invalid, the AJ examined the standards 

and concluded that they contained sufficient detail to allow Ms. Considine to accurately 

measure her performance and improve her performance rating. In view of this evidence 

and the lack of any evidence to the contrary, the AJ’s conclusion that NCUA 

communicated Ms. Considine’s performance standards to her is supported by 

substantial evidence. 

Turning to the third factor, the AJ observed that the Notice issued by Ms. Black 

provided Ms. Considine with detailed examples illustrating the ways in which she was 

not performing up to the “minimally meets” level for both elements. He then reviewed 

the associate regional director’s notice of proposed removal, which provided an in-depth 

discussion of each credit union examination Ms. Considine had worked on and the ways 

in which her performance on each was deficient. The AJ further noted that each of Ms. 

Black, the associate regional director, and the regional director presented testimony 

evidencing Ms. Considine’s deficient performance during the PIP. Ms. Considine, on 

the other hand, testified primarily about issues unrelated to her job performance and 

acknowledged that she missed numerous deadlines. Ultimately, the AJ concluded that 

NCUA’s position was supported by extensive documentary evidence and witness 

testimony, and that its factual account was more persuasive than Ms. Considine’s with 

2009-3294 4
respect to the few disparities that existed. Therefore, the AJ found that NCUA 

presented substantial evidence that Ms. Considine’s performance warranted an 

unacceptable rating on critical elements one and two. In view of the extensive record 

evidence supporting the AJ's conclusion, we find that its determination is supported by 

substantial evidence. 

Finally, with respect to the fourth factor, the AJ observed that Ms. Black gave Ms. 

Considine 120 days to improve, rather than the standard 90 days. Ms. Black also 

offered to provide Ms. Considine with substantial guidance, training, and feedback 

during the PIP, as stated in the Notice. Ms. Considine contended that Ms. Black had 

not, in fact, followed through on these offers. However, the AJ noted that the regional 

director’s removal letter described various ways in which Ms. Black followed through 

with her offers of assistance and that Ms. Black also provided testimony regarding her 

efforts. While we agree with Ms. Considine that the AJ’s decision is based, at least in 

part, on a credibility determination, “the evaluation of and weight to be given to . . . [the] 

evidence in the record are judgment calls that rest primarily within the discretion of the 

Board." Hall v. Dep’t of the Treasury, 264 F.3d 1050, 1060 (Fed. Cir. 2001). Therefore, 

substantial evidence supports the AJ’s determination that NCUA proved by substantial 

evidence that Ms. Considine had a reasonable opportunity to improve and that NCUA 

met its burden of sustaining the removal of Ms. Considine for unacceptable 

performance. 

Ms. Considine also argues that the AJ improperly denied her affirmative 

defenses of retaliatory action. Ms. Considine alleges that NCUA removed her from her 

position in retaliation for: 1) grievances that she filed against her supervisors; 2) a 1999 

2009-3294 5
appeal she made to the Board; and 3) various whistleblower activities. As the AJ 

correctly noted, Ms. Considine had the burden of proving her affirmative defenses by a 

preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2)(iii). 

Ms. Considine first contends that NCUA removed her from her position in 

retaliation for numerous grievances she filed against her supervisors, which date from 

1998 through the first half of 2008. The AJ determined that because NCUA had already 

established a non-retaliatory reason for removing Ms. Considine—namely, her 

unacceptable performance—the relevant inquiry was whether Ms. Considine had 

established, by a preponderance of the evidence, that her performance was a “mere 

pretext” for the removal. See Haddon v. Exec. Residence, 313 F.3d 1352, 1359 (Fed. 

Cir. 2002). The AJ found it “highly unlikely” that NCUA would have taken any retaliatory 

action towards Ms. Considine based on her grievances filed prior to 2005, due to their 

remoteness in time from the present removal action, their failure to mention any 

individuals involved in the present removal action, and Ms. Considine’s failure to offer 

any evidence to the contrary. The grievances filed from 2005 to 2008 involved 

allegations against Ms. Black. However, the AJ found that Ms. Considine failed to show 

that any similarly-situated NCUA employee had received better treatment with respect 

to performance issues and that there was no evidence from which he might infer 

retaliatory intent. The AJ’s analysis of the record on this point is sound, and his 

determination is supported by substantial evidence. 

Next, Ms. Considine contends that her removal was part of a “pattern of reprisal” 

by NCUA in retaliation for a prior appeal she made to the Board. Ms. Considine’s prior 

appeal involved a May 1999 decision to remove her from her position for unacceptable 

2009-3294 6
performance. The administrative judge reversed the decision, finding that NCUA’s 

performance standards were invalid. The AJ in the present action noted that although 

the regional director had participated in Ms. Considine’s prior appeal, Ms. Black and the 

associate regional director had not been involved. Further, the AJ found that timing 

considerations weighed against retaliatory action, that her allegations about actions 

evidencing a “pattern” were conclusory and related to people not involved in the present 

removal action, and that she had not presented evidence of any similarly-situated 

employees that were better treated regarding performance issues. We cannot say that 

the record evidence cited by the AJ is not "such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion.” Lovshin, 767 F.2d at 844. 

Therefore, the AJ’s determination is supported by substantial evidence. 

Lastly, Ms. Considine argues that she was removed in reprisal for whistleblowing 

activities. As the AJ correctly recognized, to prove a claim for whistleblowing an 

employee must show by a preponderance of the evidence that she made a protected 

disclosure and that the disclosure was a contributing factor in the personnel action 

being appealed. Horton v. Dep’t of the Navy, 66 F.3d 279, 282-83 (Fed. Cir. 1995). A 

protected disclosure includes any disclosure of information that an employee 

reasonably believes evidences “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). The employee bears the burden of showing that a protected 

disclosure has been made. Horton, 66 F.3d at 282. 

Ms. Considine relies on three sets of allegedly protected disclosures to support 

her whistleblower defense: 1) the various disclosures that formed the basis for her 1999 

2009-3294 7
2009-3294 8

Board appeal; 2) complaints she made to the regional director regarding Ms. Black’s 

conduct during Ms. Considine’s examination of two credit unions; and 3) complaints she 

made to NCUA’s central office regarding a mandatory meeting in Lowell, Massachusetts 

that Ms. Black scheduled during a snowstorm. The AJ found that Ms. Considine failed 

to establish that any disclosures made prior to 2000 were “contributing factors” to her 

removal. With respect to Ms. Considine’s complaints about Ms. Black, the AJ found that 

the complaints could be considered a disclosure of “abuse of authority” if Ms. Considine 

reasonably believed that the disclosure indicated wrongdoing by Ms. Black. However, 

the AJ credited testimony from the NCUA about the actual course of events that 

occurred during the examinations, and therefore concluded that Ms. Considine could 

not have reasonably believed that Ms. Black engaged in wrongdoing. Finally, the AJ 

determined that Ms. Considine could not have reasonably believed that the Lowell 

meeting evidenced a “specific danger to public health or safety” because, among other 

reasons, Ms. Black authorized Ms. Considine to stay overnight at a hotel in Lowell to 

ensure her well-being. The AJ’s determinations as to Ms. Considine's whistleblower 

claims are based on ample record evidence and permissible credibility determinations 

and, therefore, are supported by substantial evidence. 

For the foregoing reasons, we affirm the final decision of the Board. 

COSTS 

No costs.