UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

KERBY C. PHILLIPS,

Appellant,

v.

DEPARTMENT OF THE INTERIOR,

Agency.

DOCKET NUMBER

SF-1221-13-0295-W-1

DATE: August 18, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Kerby C. Phillips, Grants Pass, Oregon, pro se.

Frank S. Wilson, Portland, Oregon, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

denied the appellant’s request for corrective action. Generally, we grant petitions 

such as this one only when: the initial decision contains erroneous findings of 

material fact; the initial decision is based on an erroneous interpretation of statute 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

or regulation or the erroneous application of the law to the facts of the case; the 

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. See 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, and based on the following points and authorities, 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 find that the appellant established a 

prima facie case of retaliation for whistleblowing, we AFFIRM the initial 

decision. 

¶2 The appellant filed an individual right of action (IRA) appeal alleging that 

the agency terminated him during his probationary period as an Engineering 

Equipment Operator in retaliation for his whistleblowing. Initial Appeal File 

(IAF), Tab 1. The appeal was assigned to an administrative judge who found that 

the appellant had exhausted his remedies before the Office of Special Counsel

with regard to some of his alleged disclosures, and had made a nonfrivolous 

allegation that he had made protected disclosures that were a contributing factor 

to his termination. IAF, Tab 13. The administrative judge developed the record, 

including holding a 2-day hearing. See Hearing Transcript (Aug. 1, 2013) (HT 1); 

Hearing Transcript (Aug. 2, 2013) (HT 2). The administrative judge, who heard 

the hearing testimony, retired before she issued an initial decision, and the 

regional office reassigned the case. IAF, Tab 38. The parties agreed that the 

administrative judge to whom the case was reassigned would issue an initial 

decision based on the existing record. IAF, Tab 39. 

¶3 In the initial decision, the administrative judge found that the appellant

failed to prove by preponderant evidence that the four disclosures on which he 
3

had exhausted his administrative remedies constituted protected disclosures. IAF, 

Tab 40, Initial Decision (ID) at 3. The administrative judge found that the 

appellant failed to prove that his disclosure of a breakdown of the articulating 

mower that he was using established a reasonable belief of a substantial and 

specific safety risk. ID at 4. He found that the appellant failed to prove that his 

disclosure during a meeting with his second level supervisor that some of the 

agency’s vehicles lacked radios, that his coworkers did not inform others of their 

location while driving, and that coworkers drove too fast established a reasonable 

belief of a violation of law, rule, or regulation, or a substantial safely risk. ID 

at 4-6. The administrative judge also found that the appellant failed to prove that 

his disclosure about how a coworker operated a road broom established a 

reasonable belief of a substantial safety risk, and failed to show that his allegation 

that a coworker texted while driving was true, thus failing to establish a 

reasonable belief of a violation of the law prohibiting texting while driving. ID 

at 6-10. The administrative judge further found that the appellant failed to show 

that the eleven vague disclosures in an Occupational Safety and Health 

Administration (OSHA) complaint established a reasonable belief of a violation 

of law, rule, or regulation, or a substantial safety risk. ID at 10-13.

¶4 Additionally, the administrative judge found that, even if any of the 

appellant’s disclosures constituted protected whistleblowing, the agency proved 

by clear and convincing evidence that it would have terminated the appellant

absent the disclosures based on the misconduct alleged in the termination letter. 

ID at 14-17. He also found that the appellant’s supervisors had little motivation 

to retaliate. ID at 17-19. 

¶5 In his petition for review, the appellant argues, as he did below, that his 

disclosures established a reasonable belief of a substantial safely risk. He also 

reiterates his assertion that his disclosure that a coworker texted while driving 

established a reasonable belief of a violation of law.
4

¶6 Federal agencies are prohibited from taking, failing to take, or threatening 

to take or fail to take, any personnel action against an employee in a covered 

position because of the disclosure of information that the employee reasonably 

believes to be evidence of a violation of law, rule, or regulation, gross 

mismanagement, a gross waste of funds, an abuse of authority, or a substantial 

and specific danger to public health and safety. 5 U.S.C. § 2302(a)(2), (b)(8); see 

Jenkins v. Environmental Protection Agency, 118 M.S.P.R. 161, ¶ 16 (2012). In 

order to establish a prima facie case of whistleblower reprisal in an IRA appeal, 

the employee must prove, by preponderant evidence, that he made a protected 

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

against him. 5 U.S.C. § 1221(e)(1); Jenkins, 118 M.S.P.R. 161, ¶ 16. The most 

common way of proving that a disclosure was a contributing factor in a personnel 

action is the “knowledge/timing” test. Wadhwa v. Department of Veterans 

Affairs, 110 M.S.P.R. 615, ¶ 12, aff’d, 353 F. App’x 435 (Fed. Cir. 2009). Under 

that test, an appellant can prove the contributing factor element 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.

¶7 If the appellant makes out a prima facie claim of whistleblower reprisal, the 

agency is given an opportunity to prove, 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)(2); Jenkins, 118 M.S.P.R. 161, ¶ 16. In 

determining whether an agency has shown by clear and convincing evidence that 

it would have taken the same personnel action in the absence of whistleblowing, 

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 agency officials who were involved in the decision; and 

(3) any evidence that the agency takes similar actions against employees who are 
5

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

Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999); see Jenkins, 

118 M.S.P.R. 161, ¶ 16.

¶8 We agree with the administrative judge that the appellant failed to prove by 

preponderant evidence that he had a reasonable belief that he was making a 

disclosure protected under the Whistleblower Protection Act for all of his 

disclosures except his disclosure that a coworker texted while driving. As 

explained below, we find that the appellant proved by preponderant evidence that 

he had a reasonable belief that he observed a coworker texting while driving an 

agency vehicle in violation of state law. 

¶9 Overarching the administrative judge’s finding that the appellant failed to 

prove that he made protected disclosures is the administrative judge’s finding that 

there were a number of inconsistencies in the appellant’s testimony that call into 

question the reliability of the appellant’s account of facts, including his ability to 

estimate speeds and distances of vehicles that he alleged were being operated 

unsafely and the width and slope of the sides of a ditch that he alleged were not 

dug properly for six employees to work in safely. ID at 9-12. Because the 

administrative judge’s credibility determinations were not based on the demeanor 

of witnesses, because he was not present at the hearing, which as noted was held 

by a different administrative judge, the Board is free to substitute its own 

credibility findings for those of the administrative judge. See Donato v. 

Department of Defense, 34 M.S.P.R. 385, 389-90 (1987) (stating that where the 

administrative judge’s credibility determinations were not based on the demeanor 

of the witnesses, the Board could substitute its own factual determinations, giving 

the administrative judge’s findings only the weight warranted by the record and 

the strength of his reasoning). Nonetheless, the administrative judge’s credibility 

findings were based on all the evidence of record, including the extensive hearing 

testimony, and we find that there are no other, more persuasive, indicia of 
6

credibility in the record than those relied on by the administrative judge that 

might form a basis to reverse the administrative judge’s credibility determination. 

¶10 Our reexamination of the administrative judge’s finding that the appellant 

did not prove by preponderant evidence that he had a reasonable belief that his 

coworker used his cell phone to text while he was driving a government vehicle 

does not reverse the administrative judge’s credibility findings. Rather, our 

finding examines the determination that the appellant failed to prove that he had a 

reasonable belief that he disclosed that his coworker violated a law by texting

using the proper test to determine reasonable belief. 

¶11 In finding that the appellant failed to prove by preponderant evidence that 

he had a reasonable belief that a coworker was texting while driving a 

government vehicle, and thus violating Oregon law, the administrative judge 

credited the agency’s witness’s testimony denying the conduct described in the 

disclosures. However, the test for protected status is not the truth of the matter 

disclosed but whether it was reasonably believed. See Shannon v. Department of 

Veterans Affairs, 121 M.S.P.R. 221, ¶ 28 (2014); Special Counsel v. Spears, 

75 M.S.P.R. 639, 654 (1997). Therefore, the appellant’s failure to prove that the 

alleged misconduct described in his disclosures occurred is not a valid basis for 

finding that those disclosures are not protected under 5 U.S.C. § 2302(b)(8). 

Rather, to prove that his disclosure is protected, the appellant need only show that 

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

readily ascertainable by him could reasonably conclude that: (1) the alleged 

conduct occurred; and (2) the alleged conduct evidences one of the categories of 

wrongdoing identified in 5 U.S.C. § 2302(b)(8)(A). 

¶12 The appellant testified as follows: on a specific occasion, he was riding 

from a rather remote work site with a coworker who was driving an agency owned 

vehicle. HT 1 at 29. The coworker stopped at a red light and did not move the 

vehicle immediately when the light turned green. Id. The appellant looked over 

at the driver and believed that he saw him using his mobile phone to text. Id. 
7

The driver was “oblivious” that the light had turned green and that traffic was 

moving because he was focused on his phone. Id. As the administrative judge

found, the coworker denied texting. HT 2 at 10. However, he did not remember 

the specific incident that the appellant referenced. Id. at 29. He testified that he

never texts while driving. Id. at 30. Based on the testimony of the appellant and 

the coworker, the administrative judge found that he could not determine whether 

the coworker was in fact texting or simply looking at the phone while stopped 

without using it. ID at 9. 

¶13 We agree with the administrative judge that the record supports a finding 

that the appellant established that a coworker with whom the appellant was riding 

in a government owned vehicle held his phone while the vehicle was stopped at a 

red traffic light. Further, although the administrative judge did not credit the 

appellant’s testimony about the length of time that the coworker was oblivious to 

the fact that the light had turned from red to green, nothing contradicts the 

appellant’s testimony that the coworker failed to move the vehicle for some 

amount of time after the traffic signal turned green. As noted, the coworker 

testified that he did not remember the specific incident. Further, nothing 

contradicts the appellant’s testimony that the coworker remained focused on his 

phone for some interval when he could have moved the truck that he was driving. 

Based on our findings regarding what the appellant observed, and applying the 

disinterested observer standard, we find that the appellant reasonably believed 

that a coworker texted while driving and that the alleged misconduct constituted a 

violation of law or wrongdoing as described in 5 U.S.C. § 2302(b)(8). Moreover, 

in making a disclosure involving a violation of law, rule, or regulation, we note 

that there is no de minimis exception for disclosures falling within the scope of 

5 U.S.C. § 2302(b)(8)(A)(i). See Fisher v. Environmental Protection Agency, 

108 M.S.P.R. 296, ¶ 9 (2008). Under these circumstances, we find that the 

appellant has proven by preponderant evidence that he had a reasonable belief 

that he disclosed a violation of law. 
8

¶14 In addition to applying the wrong evidentiary standard in assessing whether 

the appellant proved that his disclosures were protected, the administrative judge 

failed to make specific findings regarding the contributing factor element. 

Because the record is fully developed, we can make findings on the contributing 

factor element. We find that the appellant established, using the knowledge 

timing test, that his disclosure of a violation of law was a contributing factor to 

his termination. See Wadhwa, 110 M.S.P.R. 615, ¶ 12. 

¶15 The appellant disclosed his reasonable belief that his coworker was 

violating Oregon law by texting while driving on March 29, 2012, in an email to 

the Maintenance Manager. IAF, Tab 4 at 17. Shortly thereafter, on 

April 9, 2012, the appellant’s supervisor, the Engineering Equipment Operator 

Supervisor, issued a decision to terminate the appellant effective that same day. 

IAF, Tab 8 at 302, 314. The appellant addressed his request for reconsideration 

of the termination decision to the Maintenance Manager, and she affirmed the 

termination decision on April 19, 2012. Id. at 302. Thus, the appellant

established that the agency official who affirmed the appellant’s termination 

knew of the whistleblowing disclosure because he addressed his email making the 

disclosure to her. Further, she took the action within 3 weeks of the appellant’s 

disclosure, a period of time such that a reasonable person could conclude that the 

disclosure was a contributing factor in the personnel action. See Rubendall v. 

Department of Health & Human Services, 101 M.S.P.R. 599, ¶ 13 (2006) (a gap 

of less than 6 months between a disclosure and a personnel action is “sufficiently 

proximate” to satisfy the timing prong of the knowledge-timing test), superseded 

on other grounds by statute, Whistleblower Protection Enhancement Act of 2012, 

Pub. L. No. 112-199, 126 Stat. 1465, as stated in Carney v. Department of 

Veterans Affairs, 2014 MSPB 62, ¶ 6.

¶16 Because the appellant met his burden to establish a prima facie case of 

whistleblowing, the burden shifted to the agency to prove by clear and convincing 

evidence that it would have taken the termination action in the absence of the 
9

appellant’s whistleblowing. 2 See Jenkins, 118 M.S.P.R. 161, ¶ 16. The 

appellant’s assertion in his petition for review that the agency failed to meet that 

burden because it failed to show that he engaged in the misconduct that the 

agency gives as the reason for the appellant’s termination is unavailing. We 

agree with the administrative judge that, examining the agency’s evidence under 

the Carr factors, and considering the record evidence as a whole, the agency met 

its burden. See Carr, 185 F.3d 1318, 1323; Whitmore v. Department of Labor, 

680 F.3d 1353, 1368 (Fed. Cir. 2012). 

¶17 The agency’s evidence that the appellant engaged in the conduct that led to 

his termination is strong under Carr factor one, the strength of the agency’s 

evidence. As the administrative judge found, the agency established the 

occurrence of each of the five incidents identified in the termination letter. IAF, 

Tab 8 at 314; ID at 14-17. The record shows though that during a culvertinstallation project, the appellant stood beside the ditch and watched the rest of 

the crew work, even after his supervisor addressed the appellant’s concern that 

working in the ditch was dangerous. ID at 14. Also, the agency established that 

the appellant drove a dump truck in a way that had the potential to damage it, 

specifically, slipping the clutch while attempting to start in a high gear and 

shifting the interlock rear end while the vehicle was moving, and not taking the

 2 The Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. No. 

112-199, § 114(b), 126 Stat. 1465, 1472, amended 5 U.S.C. §1221(e)(2) to provide that 

the Board may not proceed to the clear and convincing evidence test unless it has first 

made a finding that the appellant established his prima facie case of reprisal for 

whistleblowing. The WPEA was effective as of December 27, 2012, Pub. L. No. 

112-199, § 202, 126 Stat. 1465, 1476, and thus is applicable to this appeal that was 

pending before the Board when the statute became effective. The administrative judge

acted inconsistently with the WPEA by reaching the clear and convincing evidence 

stage even after finding that the appellant failed to establish a prima facie case, but this 

error is of no consequence because of our finding that the appellant established a prima 

facie case. Thus, it was, in fact, proper and necessary for the administrative judge to 

determine whether the agency established by clear and convincing evidence that it 

would have terminated the appellant despite his protected activity.
10

advice of his supervisor not to do this. ID at 15. Additionally, the record shows 

that the appellant took four hours to complete what should have been a 1 and a 

half hour assignment of returning equipment to the office when the appellant

realized that he must return it because of bad weather. ID at 16. Further, the 

agency showed that, on one occasion, the appellant left for a project half an hour 

before the rest of the crew but arrived an hour after them, and offered no 

acceptable reason for his delay. ID at 16-17. Finally, regarding the strength of 

the agency’s evidence that the appellant engaged in the misconduct identified in 

the termination letter, the agency showed that the appellant screamed and cussed 

at a coworker who reminded the appellant, as a matter of safety, to turn off the 

brush cutter when others were nearby. ID at 17. 

¶18 Carr factor two is the motive, to retaliate and, as the administrative judge

found, the motive to retaliate was not strong. ID at 18-19. As the administrative 

judge found, most of the appellant’s alleged disclosures involved alleged 

wrongdoing by the appellant’s coworkers and did not accuse the supervisors 

themselves of any misconduct. The appellant’s OSHA complaint might have 

been thought to target the supervisors. However, the supervisors had been 

working on the termination letter before they were aware of the OSHA complaint, 

even though the termination was effected after they learned of the complaint. 

But, persisting in discipline decided upon before learning of protected disclosures 

does not, by itself, transform the discipline into a prohibited personnel practice. 

There is nothing in 5 U.S.C. § 2302(b)(8) that requires a supervisor to change a 

decision once he learns that the employee has engaged in whistleblowing. See 

Charest v. Federal Emergency Management Agency, 54 M.S.P.R. 436, 438 

(1992); Special Counsel v. Hathaway, 49 M.S.P.R. 595, 605 (1991), aff’d, 

981 F.2d 1237 (Fed. Cir. 1992). In any event, the agency was subject to annual 

OSHA inspections, and one was due at the time that the appellant made his 

complaint. ID at 19.
11

¶19 Carr factor three is the comparable treatment of non-whistleblowers. The 

record does not contain evidence that non-whistleblowers had engaged in similar 

conduct but had not had their appointments terminated. Thus, the third Carr

factor is not a relevant consideration in this case. 

¶20 When conducting an assessment of the Carr factors, the Board evaluates all 

the pertinent evidence in determining whether an element of a claim or defense 

has been proven adequately. See Whitmore, 680 F.3d at 1368. A proper analysis 

of the clear and convincing evidence issue requires that all of the evidence be 

weighed together—both the evidence that supports the agency’s case and the

evidence that detracts from it. Shibuya v. Department of Agriculture, 

119 M.S.P.R. 537, ¶ 37 (2013). We agree with the administrative judge that 

considering the agency’s evidence regarding the Carr factors and all of the 

evidence as a whole, the agency established by clear and convincing evidence that 

it would have terminated the appellant absent his whistleblowing. 

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 the United States Court of Appeals for the Federal Circuit to review this 

final decision.

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. See 

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 
12

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

may request review of this final decision by the United States 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 United States 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 United States 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 information about other courts of appeals can be found at their 

respective websites, which can be accessed through 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

If you are interested in securing pro bono representation for an appeal to the 

United States Court of Appeals for the Federal Circuit, you may visit our website 

at http://www.mspb.gov/probono for a list of attorneys who have expressed 

interest in providing pro bono representation for Merit Systems Protection Board 

appellants before the Federal Circuit. The Merit Systems Protection Board 
13

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.

______________________________

William D. Spencer

Clerk of the Board