NOTE: This disposition is nonprecedential.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 Li tigation Branch, Civil Division, United States Department of Ju stice, 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 Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential.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 fr om a final decision of the Merit Systems Protection Board (Board) affirming a decision of the Na tional Credit Union Ad ministration (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 dec ision); 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). TheNotice informed Ms. Considine that her overall performance h ad been found to be unacceptable with respect to critical element s one and two of her position: specifically, the “District Management, Supervision, a nd Problem Resolution” and “Job Related Knowledge and Skills” elements. The Noti ce 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 r egional 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 perform ance. Ms. Considine responded to the notice of proposed removal both or ally and in writing. On November 24, 2008, after considering Ms. Considine’s arguments, t he regional director issued a decision removing her from the Federal Servic e, effective November 28, 2008. Ms. Considine appealed to t he Board on December 29, 2008. In a detailed initial decision, the administrative judge (AJ) determined that NCU A had shown by substantial evidence that it properly removed Ms. Co nsidine from her position for unacceptable performance. The AJ also det ermined that Ms. Considine faile d to prove her affirmative defenses by a preponderance of the evidence. Therefor e, the AJ affirmed NCUA’s action removing Ms. Considine from the Feder al 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 2DISCUSSION Ms. Considine appeals from the Board’s fi nal 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 ev idence.” 5 U.S.C. § 7703(c). Under this standard of review, this court will not ov erturn 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 bor e the burden of sustaining its decision to remove Ms. Considine for unacceptable perform ance 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 crit ical element of her position; and (4) she was gi ven 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, t he AJ found that OPM approved NCUA’s performance appraisal system by letter dat ed December 15, 20 00. Although Ms. Considine now argues on appeal that the OPM letter relat ed to outdated performance standards, she failed to raise this argument in the proceedings before the Board.

2009-3294 3Therefore, 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 element s one and two. Further, although Ms. Considine did not argue that the standards for her position were invalid, t he AJ examined the standards and concluded that they contain ed 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 cont rary, the AJ’s conclusion that NCUA communicated Ms. Considine’s performanc e standards to her is supported by substantial evidence. Turning to the third factor, the AJ observ ed that the Notice issued by Ms. Black provided Ms. Considine with detailed exampl es illustrating the wa ys in which she was not performing up to the “minimally meets” le vel for both elements. He then reviewed the associate regional di rector’s notice of proposed remo val, which provided an in-depth discussion of each credit union examination Ms. Considi ne had worked on and the ways in which her performance on each was deficien t. The AJ further noted that each of Ms. Black, the associate regional director, and the regional director presented testimony evidencing Ms. Considine’s deficient perform ance during the PIP. Ms. Considine, on the other hand, testified primarily about issues unrelated to her job performance and acknowledged that she missed nu merous deadlines. Ultimatel y, the AJ concluded that NCUA’s position was supported by exte nsive documentary evidence and witness testimony, and that its factual account was more persuasive than Ms. Considine’s with

2009-3294 4respect to the few disparities that exist ed. 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 subs tantial 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 no ted 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 pr ovided testimony regarding her efforts. While we agree with Ms. Considine t hat 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 dete rmination that NCUA pr oved by substantial evidence that Ms. Considine had a reasonabl e opportunity to im prove and that NCUA met its burden of sustaining the remova l 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 5appeal she made to the Bo ard; and 3) various whistleblow er 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 NCU A removed her from her position in retaliation for numerous grievances she fil ed 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 i nquiry was whether Ms. Considine had established, by a preponderance of the ev idence, 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 “hig hly unlikely” that NCUA woul d 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 remo val action, their failure to mention any individuals involved in the present removal ac tion, and Ms. Considine’s failure to offer any evidence to the contrary. The grie vances 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 tr eatment 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 remo val was part of a “pa ttern 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 6performance. The administrative judge re versed the decision, finding that NCUA’s performance standards were invalid . The AJ in the present action noted that although the regional director had par ticipated 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 alle gations about actions evidencing a “pattern” were conclusory and related to people not involved in the present removal action, and that she had not present ed 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 dete rmination 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 cont ributing 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 disclo sure of information that an employee reasonably believes evidences “gross mism anagement, a gross waste of funds, an abuse of authority, or a substa ntial and specific da nger 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 al legedly protected disclosures to support her whistleblower defense: 1) the various di sclosures that formed the basis for her 1999

2009-3294 72009-3294 8 Board appeal; 2) complaints she made to t he 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 Low ell, Massachusetts that Ms. Black scheduled during a snowstorm. The AJ found that Ms. Considine failed to establish that any disclos ures made prior to 2000 were “c ontributing factors” to her removal. With respect to Ms. Considine’s complaints about Ms. Black, the AJ found that the complaints could be consi dered a disclosure of “abuse of authority” if Ms. Considine reasonably believed that the disclosure indi cated wrongdoing by Ms. Black. However, the AJ credited testimony from the NCUA about the actual cour se of events that occurred during the examinations, and theref ore 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 pub lic 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 determinati ons 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.