UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ANITA FAY THOMAS,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

AT-0752-14-0008-I-1

DATE: September 6, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

LaKesha B. Shahid, Montgomery, Alabama, for the appellant.

Tsopei T. Robinson, Montgomery, Alabama, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

affirmed the agency’s removal action. Generally, we grant petitions such as this 

one only in the following circumstances: the initial decision contains erroneous 

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

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

interpretation of statute or regulation or the erroneous application of the law to 

the facts of the case; the administrative 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. 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, 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 and AFFIRM the initial 

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

¶2 Prior to her removal, the appellant was an Employment Specialist 

(Coordinator), GS-0301-12, at the Montgomery, Alabama, Veterans Affairs 

Regional Office (VARO). Initial Appeal File (IAF), Tab 5 at 4. 2 The appellant 

was removed based on three charges: (1) improper possession of protected 

information (13 specifications), (2) misuse of position, and (3) unauthorized 

disclosure of private information.3 Id. at 22-27, 58. She filed this appeal. IAF,

Tab 1. After holding a hearing, the administrative judge sustained all three 

charges, determined that the agency established that a nexus existed between the 

proven charges and the efficiency of the service, and found that the appellant 

failed to prove her several affirmative defenses. IAF, Tab 31, Initial Decision 

 

2 When citing to IAF, Tab 5, we refer to the page numbers generated by the Board’s 

e-Appeal system (e.g., here, we cite to IAF, Tab 5 at 4 of 332).

3

The agency proposed the appellant’s removal based on the three sustained charges and 

two additional charges, lack of candor and failure to follow instructions 

(2 specifications). IAF, Tab 5 at 22-27. The agency’s deciding official found that these 

additional charges were unsubstantiated and did not sustain them. Id. at 58.
3

(ID) at 5-48; IAF, Tab 25 at 3-11.

4

 Finally, the administrative judge found that 

the agency considered the relevant factors and the penalty of removal did not 

exceed the tolerable limits of reasonableness, and he thus affirmed the agency’s 

removal action. ID at 49-57. The appellant has filed a petition for review. 

Petition for Review (PFR) File, Tab 3.

The administrative judge properly sustained the first charge, improper possession 

of protected information.

¶3 On review, the appellant challenges the administrative judge’s findings of 

fact regarding the first and primary charge, improper possession of protected 

information. Id. at 9-10. The appellant had previously served as a Staff Assistant

in the Office of the Assistant Director of VARO. IAF, Tab 14, Ex. B at 2. She 

was reassigned to the Employment Coordinator position in the Vocational 

Rehabilitation and Employment Division (VR&E) on September 25, 2011. IAF, 

Tab 5 at 5. On May 17, 2012, P.S., a VARO employee, reported to then-Director 

R.R. that the first page of a final agency decision (FAD) in an EEO complaint 

that she had filed had been discovered on a color printer within the VR&E area.

Id. at 12-13. The agency determined that the appellant had recently accessed the 

Human Resources data files and had used the color printer that week. Id. at 7, 

13-14. An examination of the appellant’s computer revealed a collection of 

“emails and documents from her many years working in the Director’s Office that 

may be inappropriate for her to maintain.” Id. at 7-8. Based on this finding, the 

agency convened an administrative investigation board (AIB), which ultimately 

concluded that the appellant had obtained and misused information pertaining to 

several agency employees, including P.S. Id. at 9-10, 17-20. The agency 

identified 13 groups of documents that the AIB determined had been improperly 

 

4

The appellant does not challenge the administrative judge’s findings regarding 

harmful procedural error and age discrimination on review, and we do not disturb those 

findings.
4

saved to the appellant’s computer. Id. at 22-25. These groups of documents 

formed the basis for the 13 specifications of the charge. Id. 

¶4 The administrative judge found that the agency proved all specifications of 

the charge. ID at 5-21. The appellant conceded that the documents were saved to 

her computer, and, absent any evidence to suggest that someone else had saved 

them, the administrative judge found that the agency established that the 

appellant had saved them to her computer. ID at 6. The administrative judge 

found that the appellant’s retaining the documents potentially violated a number 

of regulations and policies pertaining to information management, computer 

security, and ethical conduct. ID at 6-8. He then described each group of 

documents included in the charge, concluding that at least one of the documents 

described in each group contained protected information. ID at 8-13.

¶5 The appellant’s arguments on review challenge the agency’s final element 

of proof, which was that the appellant did not need the protected information she 

possessed to fulfill her official duties. ID at 13. The administrative judge’s 

finding for this element relied upon his assessment of the appellant’s credibility 

when she testified about her reasons for saving the documents. ID at 13-21. He

found significant discrepancies between the testimony that the appellant gave at 

the hearing and the testimony she had given to the AIB. He pointed out that, 

during the hearing, the appellant testified that she saved the documents while 

performing her duties as a Staff Assistant, whereas her testimony before the AIB 

suggested that she was stockpiling documents to use in support of corruption

allegations against agency management or for the purpose of supporting her own 

potential EEO complaints. ID at 15, 17. 

¶6 The administrative judge closely assessed the credibility of the appellant’s 

testimony pursuant to the factors in Hillen v. Department of the Army, 

35 M.S.P.R. 453, 458 (1987). The administrative judge found that portions of the 

appellant’s hearing testimony supported the proposition that she had testified 

truthfully during the AIB, and that she had a stronger incentive to shade her 
5

testimony and justify her actions at the Board hearing. ID at 18-19. The 

administrative judge also considered the appellant’s demeanor. ID at 19-20. He

concluded that her hearing testimony had not been completely forthright and that 

she shaded her testimony to place her actions in the light most beneficial to her 

legal position. ID at 20. 

¶7 The Board must give deference to an administrative judge’s credibility 

determinations when they are based, explicitly or implicitly, on observing the 

demeanor of witnesses testifying at a hearing; the Board may overturn such 

determinations only when it has “sufficiently sound” reasons for doing so. Haebe

v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Sufficiently 

sound reasons include findings that are incomplete, inconsistent with the weight 

of the evidence, and do not reflect the record as a whole. Faucher v. Department 

of the Air Force, 96 M.S.P.R. 203, ¶ 8 (2004). The appellant has not offered any 

such reasons that would justify overturning the administrative judge’s finding . 

Accordingly, we will not disturb his findings.

The administrative judge properly sustained the second charge, misuse of 

position.

¶8 The appellant argues that the administrative judge failed to consider the 

unique facts surrounding the charge that she had misused her position. PFR File, 

Tab 3 at 10-11. The charge arises from the appellant’s accessing and retaining

documents while she was a Staff Assistant in the Director’s office, including a 

metrics worksheet that she later used in her personal EEO complaint based on her 

nonselection for the Human Resources Specialist position. IAF, Tab 5 at 14-15, 

25, Tab 6 at 244-45. The appellant admits that she provided her attorney with the

metrics worksheet, but she asserts that she had no other choice because the 

agency failed to produce it during the investigation of her EEO complaint. PFR 

File, Tab 3 at 11.

¶9 The administrative judge found the circumstances here similar to those in 

Williams v. Social Security Administration, 101 M.S.P.R. 587 (2006). ID
6

at 22-24. In Williams, the appellant used his access to the agency’s computer 

systems to print workload reports for the employees in his office, and he gave 

unredacted copies to his attorney for use in his EEO complaint. Williams,

101 M.S.P.R. 587, ¶ 3. When his attorney offered those reports as evidence 

during a hearing before the Equal Employment Opportunity Commission (EEOC), 

the EEOC administrative judge sustained the agency’s objection that releasing the 

reports violated the Privacy Act and confiscated them. Id., ¶ 4. The agency 

subsequently removed Williams for failure to comply with the rules and 

regulations regarding the authorized access and disclosure of Social Security 

systems and records and violations of the agency’s Standards of Conduct. Id.,

¶ 5. Although an arbitrator mitigated the removal to a 90-day suspension, he 

nevertheless found that Williams had improperly accessed and disclosed the 

documents in question, though not for personal gain. Id., ¶ 6. When the Board 

considered the case on review, it affirmed the arbitrator’s decision, explaining 

that the documents had been obtained improperly. Id., ¶ 13 (citing O’Day v. 

McDonnell Douglas Helicopter Company, 79 F.3d 756, 763-64 (9th Cir. 1996)); 

cf. Gill v. Department of Defense, 92 M.S.P.R. 23, ¶ 22 (2002) (finding that the 

agency did not prove that the appellant’s disclosure of documents to an EEO 

counselor violated the Privacy Act because, among other things, the EEO 

counselor was acting within the scope of her duties and needed the disclosed 

records to perform her duties).5 The administrative judge here found that the 

 

5

In Smith v. Department of Transportation, 106 M.S.P.R. 59 (2007), the Board reached 

the same conclusion based on somewhat similar circumstances. The Board later 

reversed its published decision in Smith after the EEOC non-concurred with the Board’s 

findings. Smith v. Department of Transportation, MSPB Docket No. AT-0752-05-0901-

E-1, Final Order (Apr. 25, 2012); Smith v. LaHood, EEOC DOC 0320080085, 2012 WL 

1076119 (Mar. 21, 2012). Smith is distinguishable from the instant case, however. In 

Smith, the EEOC drew an adverse inference against the agency because it had not 

obeyed the Commission’s order to produce comparator evidence on the penalty. Smith, 

2012 WL 1076119 at *5-6. In addition, in Smith, the appellant came across the 
7

appellant, like Williams, had not obtained the metrics worksheet through proper 

channels and had instead used her access to agency documents to improperly copy 

the document from the Director’s inbox. ID at 23. He pointed out that she could 

have asked her attorney to advise the agency where to find the documents or

sought the information therein through testimony of the interview panel. ID

at 23-24. The administrative judge concluded that the agency proved that the 

appellant misused her position. ID at 24.

¶10 On review, the appellant seeks to distinguish Williams from her case. She 

argues that she first sought to obtain the worksheet through official channels

while her complaint was under investigation but that the agency claimed that it 

could not locate the document. PFR File, Tab 3 at 10-11. For that reason, she 

argues, the agency’s hands are unclean and she had no other option but to use her 

access to the agency’s computer systems to obtain the worksheet. Id. at 11. Even 

assuming misconduct by agency personnel during the EEO investigation, we find 

that the appellant nevertheless misused her position to obtain the metrics 

worksheet. Had her complaint proceeded to a hearing, she could have deposed 

the persons on the interview panel about their hiring decision or called such 

persons as witnesses to obtain the information on the worksheet. Additionally, 

during the AIB, the appellant admitted her wrongful motivation in obtaining the 

worksheet, which is key evidence that she understood the impropriety of her 

actions. IAF, Tab 5 at 18, Tab 6 at 240-41, 244-45. Accordingly, we find that 

the administrative judge properly sustained the charge.

The appellant failed to establish that the agency retaliated against her based on 

prior EEO activity.

¶11 The appellant asserts that the administrative judge incorrectly concluded 

that she failed to show that the agency retaliated against her for prior EEO 

 

documents in the course of his official duties. No such circumstances exist here or in 

Williams, and thus we find Williams to be applicable.
8

activity. PFR File, Tab 3 at 15-16; ID at 31-39. To establish a claim of EEO 

reprisal, an appellant must show that the prohibited consideration was at least a 

motivating factor in the personnel action at issue. Pridgen v. Office of 

Management and Budget, 2022 MSPB 31, ¶¶ 21-22.

¶12 The administrative judge found that the appellant established that she 

engaged in protected activity by filing an EEO complaint based upon her 

nonselection as a Human Resources Specialist. ID at 33. He also found that the 

deciding official was aware of her protected activity when she made the decision 

to remove her. Id. Based on a thorough review of the record, however, he 

concluded that the appellant failed to prove that her EEO activity was a 

motivating factor in the removal decision. ID at 38.

¶13 On review, the appellant argues that the administrative judge failed to give 

due weight to her testimony regarding her meeting with the deciding official 

shortly after the deciding official became the Acting Director of VARO to report 

retaliation by her supervisor, C.H., for EEO activity. 6 PFR File, Tab 3 at 15; 

HCD 2 (testimony of the appellant). The appellant explains that the 

administrative judge acknowledged that she met with the deciding official but 

stressed that there was no testimony as to what was discussed in the meeting. 

PFR File, Tab 3 at 15; ID at 33 n.16. She asserts that she gave the deciding 

official a spreadsheet documenting the retaliatory activity during the meeting. 

PFR File, Tab 3 at 15. Even considering the deciding official’s testimony that 

such a meeting may have occurred and that she might have seen the spreadsheet, 

HCD 1 (testimony of L.W.), the appellant has not shown that the administrative 

 

6

The appellant asserts that the administrative judge “incorrectly stated in his decision 

that the deciding official had no knowledge of the appellant’s prior EEO activity.” PFR

File, Tab 3 at 15. We find, to the contrary, that the administrative judge found that the 

deciding official was aware of the appellant’s protected EEO activity when she made 

the removal decision. ID at 33. Knowledge of activity, however, does not necessarily 

mean it was a motivating factor.
9

judge incorrectly characterized the nature of the meeting. ID at 33 n.16. The 

deciding official’s testimony shows that her recall of the meeting was tenuous and 

uncertain. HCD 1 (testimony of L.W.). As the administrative judge pointed out, 

the appellant did not submit the spreadsheet for the record. ID at 33 n.16. Her 

failure to submit the spreadsheet weakens her claims about the nature of the 

meeting because it was within her ability to provide supporting documentation. 

Based in part on demeanor evidence, the administrative judge also foun d that her 

assertions regarding the meeting were less than credible. ID at 20. Her argument 

is thus unavailing.

¶14 The appellant further argues that the proposing and deciding officials may 

have known about and been influenced by her prior EEO activity, even absent 

their direct involvement in that activity. PFR File, Tab 3 at 15. She argues that 

the incoming Acting Director may have been briefed about employees that the 

management perceived to be troublemakers. Id. She points to her testimony that 

R.R., a previous Director, once told her that he had heard she was a “giant killer,” 

a comment suggesting to her that such briefings occurred. PFR File, Tab 3 at 15; 

HCD 2 (testimony of the appellant). The appellant additionally points to 

testimony that R.R. threatened her job and that of another employee if they 

reported him for wrongdoing. PFR File, Tab 3 at 15-16; HCD 1 (testimony of 

L.F.); HCD 2 (testimony of the appellant). The appellant’s argument here is 

purely speculative. She has not shown that R.R. exercised any influence over or 

had contact with the proposing or deciding officials after his departure. 

Therefore, we find that these assertions do not provide a basis for disturbing the 

initial decision.

¶15 The appellant also asserts that the record contains “direct” evidence of 

retaliatory motive based on the removal proposal notice’s references to her EEO 

activity in the second charge (misuse of position) and to the monetary settlement 
10

of her EEO complaint in a specification of the first charge.

7

 PFR File, Tab 3 

at 16. The administrative judge considered the agency’s reliance on the 

appellant’s disclosure of protected information during the course of pursuing her 

EEO complaint as circumstantial evidence of retaliation. ID at 35, 38. The 

administrative judge explained in detail why the record as a whole did not support 

a finding that the agency’s action was motivated by her protected EEO activity. 

ID at 33-39.

¶16 We agree with the administrative judge’s finding that the agency intended 

to hold the appellant accountable for violating rules and regulations regarding the 

proper access and use of protected information within the agency’s possession 

and control. ID at 34. We concur with the administrative judge’s conclusion that 

she failed to meet her burden of establishing that her protected EEO activity was 

a motivating factor in the agency’s decision to remove her. ID at 38.

8

The appellant did not establish that her protected disclosures were a contributing 

factor in the agency’s decision to remove her.

¶17 The appellant asserted reprisal for whistleblowing disclosures as an 

affirmative defense, arguing that she had submitted the documents saved on her 

hard drive as part of protected disclosures to a former Director and to agency 

investigators. IAF, Tab 1 at 6, Tab 14 at 10-11, Tab 25 at 3-5. The 

administrative judge found that the appellant proved that she made protected 

 

7

The second charge states that the appellant “admitted to using [her] access as a 

Director’s Office staff member to access and save nonpublic information on [her] 

computer for use in [her] personal EEO case and to show corruption within the 

[agency].” IAF, Tab 5 at 25. The third specification of the first charge states that the 

appellant “saved to [her] computer . . . confidential Merit Promotion documents related 

to a Human Resources Specialist position for which [she] applied . . . [and] presented 

this information to [her] attorney in connection with [her] personal EEO Complaint for 

nonselection, which led to a monetary settlement with the Agency.” Id. at 22.

8 Because we discern no error with the administrative judge’s motivating factor 

analysis, we do not reach the question of whether discrimination or retaliation was a 

“but-for” cause of the removal action. See Pridgen, 2022 MSPB 31, ¶ 20-22, 29-33.
11

disclosures but did not establish that those disclosures contributed to the agency’s 

removal decision. ID at 39-48. On review, the appellant asserts that the 

administrative judge improperly decided the issue of contributing factor. PFR

File, Tab 3 at 11-14.

¶18 To establish an affirmative defense of reprisal for whistleblowing

disclosures, an appellant must show by preponderant evidence that she made a 

protected disclosure under 5 U.S.C. § 2302(b)(8) and that her protected disclosure

was a contributing factor in the agency’s personnel action.9Shibuya v. 

Department of Agriculture, 119 M.S.P.R. 537, ¶¶ 19-20 (2013); see Alarid v. 

Department of the Army, 122 M.S.P.R. 600, ¶ 12 (2015) (stating that a prohibited 

personnel practice affirmative defense in a chapter 75 appeal that independently 

could form the basis of an individual right of action appeal must be analyzed 

under the burden-shifting scheme set forth in 5 U.S.C. § 1221(e)). One way of 

establishing contributing factor is the knowledge/timing test, which is se t forth in 

5 U.S.C. § 1221(e)(1). Alarid, 122 M.S.P.R. 600, ¶ 13. Under that test, an 

appellant can prove the contributing factor element through evidence that the 

official taking the personnel action knew of the protected 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. 

5 U.S.C. § 1221(e)(1); Alarid, 122 M.S.P.R. 600, ¶ 13. Even if the appellant fails 

to satisfy the knowledge/timing test, the appellant may establish contributing 

factor through other evidence, such as that pertaining to the strength or weakness

of the agency’s reasons for taking the personnel action, whether the 

whistleblowing was personally directed at the proposing or deciding officials, and 

 

9 We have reviewed the relevant legislation amending the whistleblower protection 

statutory scheme that was enacted during the pendency of this appeal and have 

concluded that it does not affect the outcome of the appeal, nor does it affect the 

relevant holdings of the case law cited in this Final Order.
12

whether those individuals had a desire or motive to retaliate against the appellant. 

Alarid, 122 M.S.P.R. 600, ¶ 13 n.6.

¶19 Here, the appellant specifically alleged that she had made various 

disclosures regarding misconduct by the former Director, R.R. IAF, Tab 1 at 6, 

Tab 14 at 10-11. The appellant testified that she made these disclosures by email 

to another former Director, M.W. HCD 2 (testimony of the appellant); IAF,

Ex. L. The appellant submitted a copy of an email message to M.W. dated 

April 27, 2012, in which she accused R.R. of various acts of misconduct 

pertaining to misuse of his government cell phone and credit card and of the 

agency canteen fund, as well as claiming that he failed to take action against an 

employee alleged to have committed misconduct, forced the appellant to buy

items for the office using her personal credit card, and provided an agency 

manager with an accommodation and handicapped parking space without 

supporting medical documentation. IAF, Tab 14, Ex. L. The email also stated 

that five employees, including the appellant herself and P.S., had filed EEO 

complaints during the prior year. Id. In June and July 2012, the appellant also 

discussed these and other allegations of wrongdoing with an investigative team

led by the agency’s New Orleans Regional Director. IAF, Tab 14, Ex. J. The 

appellant testified that she gave the team documents showing that P.S.’s EEO 

complaint had a basis in fact, that the agency had failed to comply with a posting 

requirement contained within the EEOC’s order issued for P.S.’s complaint, and 

that her supervisor had discriminated against employees on three different

occasions without suffering any consequences. HCD 2 (testimony of the 

appellant). The team documented several of the appellant’s allegations in its 

report. IAF, Tab 14, Ex. J.

¶20 Based on this evidence, the administrative judge found that the appellant

showed that she had made “at least some” protected disclosures. ID at 45. The 

administrative judge found, for example, that the disclosures the appellant made 

to M.W. and the investigative team regarding R.R.’s misuse of his agency cell 
13

phone and travel card were protected, based on the fact that she had personally

observed the misconduct and knew the pertinent rules and regulations. ID

at 45-46. He found, however, that the appellant failed to establish that either the 

proposing or deciding official knew about her disclosures during the relevant 

period. ID at 46. Although the appellant provided a letter of support to the 

deciding official from M.W., in which M.W. mentioned that she had reported 

“serious” allegations of misconduct by R.R., the administrative judge found that 

she failed to show that M.W. had informed either the proposing or deciding 

official about the actual content of her disclosures. Id.; IAF, Tab 14, Ex. I. The 

administrative judge found no evidence that either the proposing or deciding 

official knew about the appellant’s disclosures to the investigative team or had 

seen the team’s final report, or that any of the investigators had contacted the 

proposing or deciding official. ID at 46. The administrative judge thus 

concluded that the appellant failed to establish that the proposing or deciding 

officials had either actual or constructive knowledge of the disclosures.

10

 Id.

¶21 The administrative judge assigned significant weight to two facts. First, the 

documents the appellant allegedly saved for purposes of reporting 

mismanagement and corruption do not specifically relate to the disclosures she

made to M.W. or to the investigative team; second, her AIB testimony did not 

establish any linkage between the documents and her disclosures. ID at 46-47; 

IAF, Tab 6 at 519-20. Instead, the documents pertain to other matters, including 

the appellant’s personal EEO complaint, her promotion to Employment Specialist, 

 

10 The administrative judge also considered the possibility that the proposing and 

deciding officials might have perceived the appellant as a whistleblower ba sed on her 

general allegations that she had participated in an agency investigation conducted by 

the New Orleans Regional Director and that she retained agency documents alleging her 

intention to report mismanagement and corruption. ID at 48 n.27. He found, however, 

that she had never alleged that she was perceived as a whistleblower. Id.
14

and agency investigations of other employees. 11 IAF, Tab 5 at 22-25. We thus 

concur with the administrative judge’s finding that the appellant failed to prove 

that her disclosures regarding R.R. contributed to the agency’s decision to remove 

her.

¶22 On review, the appellant asserts that the administrative judge’s findings are

erroneous. PFR File, Tab 3 at 11-14. She explains that the deciding official, who 

was Acting Director when she was removed, initially testified that she did not 

know the appellant and had acted solely based on the contents of the evidence 

file, but she later testified that she “probably did” meet with the appellant prior to 

the proposed removal. Id. at 13; HCD 1 (testimony of L.W.). She further 

explains that the deciding official told her during the meeting that she did not 

want to hear anything about what the previous Director might have done. PFR

File, Tab 3 at 13. The appellant asserts that the deciding official had actual

notice of her disclosures, and given the timing of the meeting—3 months before 

the initial notice of proposed removal—she established under the 

knowledge/timing test that her disclosures contributed to the agency’s removal 

action.

12

 Id. at 13-14.

¶23 The appellant’s argument relies upon speculation. As discussed supra, the 

deciding official did not testify extensively regarding her discussion with the 

 

11 We find that the EEO activity the appellant raises on review did not concern 

remedying an alleged violation of 5 U.S.C. § 2302(b)(8), and thus it is appropriately 

addressed supra in the discussion of the appellant’s allegations of retaliation for EEO 

activity, rather than under the framework set forth in 5 U.S.C. § 1221(e). See 5 U.S.C. 

§ 2302(b)(9)(A); Edwards v. Department of Labor, 2022 MSPB 9, ¶¶ 10-13, 20, 22-23

(reaffirming that allegations of retaliation for exercising a Title VII right do not fall 

within the scope of section 2302(b)(8) or section 2302(b)(9)(A)(i)), aff’d, No. 2022-

1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023); Mattison v. Department of Veterans 

Affairs, 123 M.S.P.R. 492, ¶ 8 (2016).

12 The agency’s first proposal notice was rescinded, as were the decision letters 

resulting from it, and the appellant was removed based on the second proposal notice. 

IAF, Tab 5 at 22-27, 58-61, Tab 14, Exs. W, GG-II, KK.
15

appellant during the meeting, and we found that, in her testimony regarding the 

meeting, she sounded uncertain as to what had transpired. HCD 1 (testimony of 

L.W.). The appellant did not submit the spreadsheet she alleges to have shown 

the deciding official. ID at 33 n.16. Accordingly, we find that the appellant has 

not offered any basis for us to disturb the administrative judge’s finding.

The Board need not determine whether the agency could have established by clear 

and convincing evidence that it would have removed the appellant absent her 

protected disclosures.

¶24 The appellant argues on review that the agency failed to establish by clear 

and convincing evidence that it would have removed her anyway because the 

agency was already under scrutiny and her own whistleblowing would further 

damage its reputation. PFR File, Tab 3 at 14-15. The administrative judge, 

however, did not reach this issue because he did not need to do so after finding 

that the appellant failed to establish that the deciding official had actual or 

constructive knowledge of her protected disclosures. ID at 48; see Clarke v. 

Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 & n.10 (2014), aff’d, 

623 F. App’x 1016 (Fed. Cir. 2015). The appellant’s argument is thus unavailing.

The agency considered the relevant factors and exercised management discretion 

within tolerable limits of reasonableness.

¶25 Normally, the Board will review an agency-imposed penalty only to 

determine if the agency considered all the relevant factors and exercised 

management discretion within tolerable limits of reasonableness. Douglas v. 

Veterans Administration, 5 M.S.P.R. 280, 306 (1981). If the Board sustains all of 

the charges, the agency’s penalty determination is entitled to deference and 

should be reviewed only to determine whether it is within the parameters of 

reasonableness. Payne v. U.S. Postal Service, 72 M.S.P.R. 646, 650 (1996). In 

addition, when all charges are sustained, the Board may mitigate the agency’s 

original penalty to the maximum reasonable penalty only when it finds the 
16

agency’s original penalty to be too severe. Lachance v. Devall, 178 F.3d 1246, 

1260 (Fed. Cir. 1999).

¶26 The appellant argues that the penalty was unduly harsh. She points out that 

the agency initially proposed her removal on five charges but only sustained three 

of those charges. PFR File, Tab 3 at 17; IAF, Tab 5 at 58. She asserts that the 

reduction in the number of charges would require the agency to reduce the

penalty. PFR File, Tab 3 at 17. She further asserts that the deciding official 

failed to consider the mitigating circumstances in determining the penalty, 

including a lack of prior discipline in 27 years of service, the performance awards 

she had received, and her good work ethic. Id. at 17-18. She additionally asserts 

that the deciding official failed to consider that she was subject to a hostile work 

environment in retaliation for her EEO activities and that the hostile work 

environment affected her health to the point that she qualified for disability 

retirement payments under Social Security.

13

 Id. at 18.

¶27 All of these matters were thoroughly addressed in the initial decision. ID

at 49-56.14 Id. We agree and find that the appellant has not shown any material 

error in the initial decision.

 

13 The appellant appended to her petition for review a February 25, 2016 award letter 

from the Social Security Administration and correspondence, dated March 5, 2016, 

from the Office of Personnel Management approving her application for disability 

retirement. These documents are dated after the close of the record before the 

administrative judge but before the issuance of the initial decision. Even accepting that 

they meet the standard for “new” evidence, we find that the information they contain is 

not of sufficient weight to change the outcome.

14 In sustaining the agency’s penalty, the administrative judge rejected the appellant’s 

claim that she was subjected to a harsher penalty than similarly situated employees 

were. ID at 52-56. As discussed supra, on review, the appellant challenges the 

administrative judge’s finding that her testimony was less than credible regarding the 

more lenient penalties assessed upon employees who committed more serious 

misconduct than hers, but we discern no reason to disturb the administrative judge’s 

well-reasoned credibility findings. PFR File, Tab 3 at 19. 

In adjudicating the appellant’s disparate penalty claim, the administrative judge cited to 

the standard for assessing such a claim set forth in Woebcke v. Department of Homeland 
17

NOTICE OF APPEAL RIGHTS15

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

 

Security, 114 M.S.P.R. 100, ¶ 20 (2010), and Villada v. U.S. Postal Service, 

115 M.S.P.R. 268, ¶ 10 (2010). ID at 52. In Singh v. U.S. Postal Service, 2022 MSPB 

15, ¶¶ 9-18, the Board overruled Woebcke and Villada to the extent they held that broad 

similarity between employees was sufficient to shift the burden to the agency to explain 

the difference in treatment, allowed for a seemingly limitless universe for potential 

comparators, and construed the consistency of the penalty factor to be the sole outcome 

determinative factor. We reinstated the former legal standard for analyzing disparate 

penalty claims: whether the agency knowingly and unjustifiably treated employees who 

engaged in the same or similar offenses differently. Id., ¶¶ 10, 13-14. Although the 

administrative judge did not have the benefit of Singh when he issued the initial 

decision, we find that he properly determined that the appellant failed to make an initial 

showing that the agency treated similarly situated employees differently and thus did 

not establish her disparate penalty claim. ID at 56.

15 Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
18

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. 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, 10, and 11. 

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

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

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

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and tha t such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 
19

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on 

race, color, religion, sex, national origin, or a disabling condition, you may be 

entitled to representation by a court-appointed lawyer and to waiver of any 

requirement of prepayment of fees, costs, or other security. See 42 U.S.C. 

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

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

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 
20

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.16 The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

 

16 The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
21

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. 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, 10, and 11. 

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

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

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

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

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

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board