NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

HARROLL INGRAM,

Petitioner

v.

DEPARTMENT OF THE ARMY,

Respondent

______________________

2018-2415

______________________

Petition for review of the Merit Systems Protection 

Board in No. AT-1221-17-0498-W-1.

______________________

Decided: June 12, 2019

______________________

HARROLL INGRAM, Sanford, FL, pro se. 

 KRISTIN MCGRORY, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by JOSEPH H.

HUNT, STEVEN JOHN GILLINGHAM, ROBERT EDWARD 

KIRSCHMAN, JR. 

 ______________________

Before NEWMAN, SCHALL, and DYK, Circuit Judges.
2 INGRAM v. ARMY

PER CURIAM.

DECISION

Harroll Ingram petitions for review of the initial decision of the administrative judge (“AJ”) of the Merit Systems 

Protection Board (“Board”) in Ingram v. Department of the 

Army, No. AT-1221-17-0498-W1, 2018 MSPB LEXIS 2553, 

*1 (M.S.P.B. July 9, 2018) (App. 3–26). The AJ’s initial decision became the final decision of the Board on August 13, 

2018. In his initial decision, the AJ denied claims by Mr. 

Ingram that the Department of the Army (“agency”) had 

retaliated against him in various respects for his having 

engaged in protected whistleblowing activity. We affirm.

DISCUSSION

I.

At all times relevant to this appeal, the agency employed Mr. Ingram as a Computer/Systems Engineer with 

its Program Executive Office for Simulation, Training, and 

Instrumentation in Orlando, Florida. On May 18, 2017, 

Mr. Ingram filed an Individual Right of Action (“IRA”) appeal with the Board. In it, he alleged that, in retaliation 

for protected whistleblowing activity, the agency took certain personnel actions against him. He claimed that these 

included unfairly low performance appraisals for two consecutive years (2014 and 2015) and moving him from his 

position as a lead engineer with the Medical Simulation 

Training Center (“MSTC”) team to a non-lead engineer position with the Veterans Health Administration (“VHA”) 

projects team. App. 3–4. On July 9, 2018, following a hearing conducted by video conference, the AJ rendered his initial decision, rejecting Mr. Ingram’s claims. As noted, on 

August 13, 2018, the AJ’s initial decision became the final 

decision of the Board.
INGRAM v. ARMY 3

2014 Performance Evaluation

In his initial decision, the AJ determined first that Mr. 

Ingram had failed to show by a preponderance of the evidence that his prior protected whistleblowing activity was 

a contributing factor in his lower than expected 2014 performance rating. App. 11–12, 14–15. The AJ arrived at 

this finding for several reasons. First, the AJ noted that 

Tony Marton, the official responsible for Mr. Ingram’s 2014 

performance appraisal, testified that he became aware of a 

prior (2009) IRA appeal by Mr. Ingram after Mr. Ingram 

was assigned to the MSTC team. App. 12. In that regard, 

the AJ noted that it appeared that Mr. Ingram was assigned to Mr. Marton’s team sometime between July 25, 

and October 3, 2011. Id. The AJ further noted that the 

record indicated that Mr. Marton issued the 2014 performance evaluation on January 6, 2015, more than three full 

years after the date on which Mr. Ingram was assigned to 

the MSTC team. “The Board has indicated,” the AJ stated, 

“that a period of three years between the protected activity 

and the personnel action is too long a gap to infer a causal 

connection between an appellant’s protected whistleblowing activity and a personnel action.” Id. (citing Salinas v. 

Dep’t of the Army, 94 M.S.P.R. 54, ¶ 10 (2003)). The AJ 

pointed out that, under these circumstances, Mr. Ingram 

could not rely on the “knowledge/timing test” to establish 

that his prior whistleblowing activity was a contributing 

factor in the evaluation he received for the 2014 performance year. Id.1 In addition, the AJ found that there was 

 

1 The knowledge/timing test allows an employee to 

demonstrate that a protected activity was a contributing 

factor in a personnel action through circumstantial evidence, such as evidence that the official taking the personnel action knew of the protected activity, and that the 

personnel action occurred within a period of time such that 

a reasonable person could conclude that the protected 
4 INGRAM v. ARMY

no evidence to suggest that the whistleblowing activity at 

issue was personally directed at Mr. Marton. The AJ also 

found that Mr. Ingram had failed to present evidence suggesting that Mr. Marton had any personal desire or motive 

to retaliate against him based upon his protected whistleblowing, which was primarily directed at the actions of the 

former Program Manager for the MSTC. App. 13. Finally, 

the AJ found that, despite Mr. Ingram’s arguments to the 

contrary, the evidence suggested that several higher-ranking individuals, none of whom appeared to have been implicated by Mr. Ingram’s whistleblowing activity, reviewed 

Mr. Marton’s assessment of Mr. Ingram’s contributions 

and concluded either that the assessment was accurate, or 

that any inaccuracies in the assessment were too minor to 

have effected Mr. Ingram’s overall performance rating. 

App. 14. 

2015 Performance Evaluation

The supervisor on Mr. Ingram’s 2015 performance rating was Vanette Johnson. The AJ found that, when Ms. 

Johnson issued Mr. Ingram’s 2015 performance evaluation 

in January of 2016, she did so within a year of her discovery 

that Mr. Ingram previously had filed IRA appeals against 

the agency. Under these circumstances, the AJ concluded 

that Mr. Ingram established that “he engaged in protected 

activity and, pursuant to the knowledge/timing test, such 

activity was a contributing factor in Johnson’s decision regarding [Mr. Ingram’s] 2015 performance evaluation.” 

App. 15–16 (citing Scoggins v. Dep’t of the Army, 123 

M.S.P.R. 592, ¶25 (2016)). The AJ also concluded, however, that the agency had established by clear and convincing evidence that it would have taken the same action even 

in the absence of Mr. Ingram’s protected whistleblowing activity. App. 16; see Carr. v. Soc. Sec. Admin., 185 F.3d 

 

activity was a contributing factor in the personnel action. 

See 5 U.S.C. § 1221(e)(1).
INGRAM v. ARMY 5

1318, 1322 (Fed. Cir. 1999) (citing 5 U.S.C. § 1221(e) & 

Kewley v. Dep’t of Health and Human Servs., 154 F.3d 

1357, 1364 (Fed. Cir. 1998)). First, the AJ found that it did 

not appear that Ms. Johnson was personally implicated in 

any of Mr. Ingram’s protected whistleblowing activity and 

that the record contained no evidence indicating that she 

had a motive to retaliate against Mr. Ingram. App. 16. 

Second, the AJ noted that, as had been the case with Mr. 

Marton and the 2014 performance evaluation, higher 

agency officials who were not involved in Mr. Ingram’s 

whistleblowing allegations concurred with the ratings Ms. 

Johnson gave Mr. Ingram. Id. at 16–17. Finally, the AJ 

stated that “perhaps the strongest evidence in support of 

the agency’s decision concerning the personnel action resulting from [Mr. Ingram’s] rating for the 2015 performance year is the fact that, even if Johnson had given [Mr. 

Ingram] the ratings he believed he deserved with respect 

to the elements he complained about to [the Office of Special Counsel], his [Overall Contribution Score] for that year 

would not have changed.” Id. at 17.

Reassignment from the MSTC Team 

to the VHA Projects Team

Finally, the AJ considered Mr. Ingram’s claim that his 

transfer from the MSTC team to the VHA projects team 

was in retaliation for his protected whistleblowing activity. 

App. 18–19. In that regard, the AJ concluded that Mr. Ingram had failed to show by a preponderance of the evidence 

that his transfer to a different position was a “personnel 

action” subject to the Whistleblower Protection Act. Id. at 

19. In arriving at that conclusion, the AJ found that Mr. 

Ingram had failed to establish that his reassignment from 

the MSTC team to the VHA projects team resulted in a significant change in his duties, responsibilities, or working 

conditions. Id. at 18; see 5 U.S.C. § 2302(a)(2)(A) (defining 

“personnel action” as, inter alia, “any other significant 

change in duties, responsibilities, or working conditions”); 

see also Holderfield v. M.S.P.B., 326 F.3d 1207, 1209 (Fed. 
6 INGRAM v. ARMY

Cir. 2003). In addition, the AJ found that although Mr. 

Ingram “claimed that his assignment to the VHA projects 

team affected his promotion potential, . . . other than his 

bare assertion, he presented very little evidence to support 

his contention that his reassignment affected his promotion potential.” App. 18.

Based upon his findings and conclusions, the AJ denied 

Mr. Ingram’s request for corrective action. App. 18. After 

the AJ’s initial decision became the final decision of the 

Board, Mr. Ingram timely petitioned for review. We have 

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

II.

Our scope of review in an appeal from a decision of the 

Board is limited. Specifically, we must affirm the Board’s 

decision unless we find it to be arbitrary, capricious, an 

abuse of discretion, or otherwise not in accordance with 

law; obtained without procedures required by law, rule, or 

regulation having been followed; or unsupported by substantial evidence. 5 U.S.C. § 7703(c); Miller v. Fed. Deposit 

Ins. Corp., 818 F.3d 1361, 1365 (Fed. Cir. 2016). 

“Substantial evidence is ‘such relevant evidence as a 

reasonable mind might accept as adequate to support a 

conclusion.’” Crawford v. Dep’t of the Army, 718 F.3d 1361, 

1365 (Fed. Cir. 2013) (quoting Consolidated Edison Co. v. 

NLRB, 305 U.S. 197 (1938)). The standard “is not what the 

court would decide in a de novo appraisal, but whether the 

administrative determination is supported by substantial 

evidence on the record as a whole.” Id. (quoting Parker v. 

U.S. Postal Serv., 819 F.2d 1113, 1115 (Fed. Cir. 1987)).

Finally, regarding factual determinations, we have stated 

that credibility determinations by administrative judges 

are “virtually unreviewable.” Hambsch v. Dep’t of the 

Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986).
INGRAM v. ARMY 7

III.

We have considered all of the arguments raised by Mr. 

Ingram on appeal. Having done so, we see no error in the 

Board’s final decision. Mr. Ingram has pointed us to no 

legal error on the part of the AJ. Rather, he challenges 

various factual findings by the AJ and, in some instances, 

credibility determinations by the AJ. In neither case, however, has Mr. Ingram shown reversible error in the AJ’s 

thorough and well-reasoned initial decision, which we have 

described above. In short, the AJ did not err in denying 

Mr. Ingram’s claim for corrective action.

CONCLUSION

For the foregoing reasons, the final decision of the 

Board is affirmed.

AFFIRMED

COSTS

Each party shall bear its own costs.