UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

RAM CHATURVEDI,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

DA-1221-11-0471-W-4

DATE: April 15, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

Stephen M. Kohn, Esquire, Washington, D.C., for the appellant.

Kenneth S. Carroll, Dallas, Texas, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review and the agency has filed a cross 

petition for review of the initial decision, which denied corrective action in the 

appellant’s individual right of action (IRA) appeal. Generally, we grant petitions 

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

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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

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 

neither party has established any basis under section 1201.115 for granting the 

petition or cross petition for review. Therefore, we DENY the petition for review 

and the cross petition for review and AFFIRM the initial decision, which is now 

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

¶2 On September 30, 2007, the agency appointed the appellant to a Physician 

position under a temporary appointment not to exceed September 29, 2010, in the 

Interventional Radiology Department (IR) at the North Texas Health Care 

System. W-1 File,

2 Tab 5, Subtab 4b. Effective January 20, 2010, the agency 

terminated his appointment before its scheduled expiration date based on seven 

allegations of misconduct. W-1 File, Tab 5, Subtabs 4, 4c-4d. 

¶3 After exhausting his administrative remedies with the Office of Special 

Counsel, the appellant filed this appeal. The administrative judge convened a 

hearing and issued an initial decision that found that the appellant established 

jurisdiction over the appeal and proved that he made protected disclosures that 

were a contributing factor in a personnel action. Initial Decision (ID) at 14-21. 

She determined, however, that the agency established by clear and convincing 

 2

 This appeal was dismissed without prejudice three times. The file for MSPB Docket 

No. DA-1221-11-0471-W-1 will be referred to as the W-1 File. The labels “W-2 File”

and “W-3 File” refer to the files in MSPB Docket Nos. DA-1221-11-0471-W-2 and DA1221-11-0471-W-3, respectively. The term “Initial Decision” refers to the initial 

decision issued on March 28, 2014, under MSPB Docket No. DA-1221-11-0471-W-4.
3

evidence that it would have taken the same personnel actions absent any protected 

whistleblowing. ID at 21-34. The appellant petitions for review of the initial 

decision 3 and the agency cross petitions for review. PFR File, Tabs 4, 8. We 

address the appellant’s petition for review first.

¶4 The administrative judge determined that four personnel actions were at 

issue in this appeal: the termination of the appellant’s appointment on 

January 20, 2010; his negative performance evaluation in October 2009; and “the 

agency’s disciplinary actions,” which appear to refer to a written counseling in 

August 2009, and a proposed letter of reprimand, never effected, in 

September 2009. ID at 13-14; see W-1 File, Tab 1, Subtabs 3-4, 8, 11. The 

agency presented evidence that other employees at the appellant’s duty station 

raised a steady stream of complaints about his attitude towards them, particularly 

towards nurses4 and other “subordinates,” and about his interactions with 

patients. W-1 File, Tab 14, Subtab 15; HT at 151-52. Dr. M.G., Service Chief of 

Radiology and the appellant’s first-level supervisor, testified that he spoke with 

the appellant about this and issued the written counseling in August 2009, when 

the appellant’s behavior did not improve. HT at 153, 189-92; W-2 File, Tab 9, 

Subtabs 11, 24. Dr. M.G. also testified that he proposed to reprimand the 

appellant in September 2009, when the appellant took leave without obtaining 

approval from a supervisor. HT at 68-72; W-2 File, Tab 9, Subtab 14. Dr. M.G.

never issued the proposed reprimand. 

¶5 Dr. M.G. testified that he gave the appellant a negative rating in 

October 2009, based on the appellant’s performance under the performance 

 3 The appellant also submits extensive excerpts from the hearing transcript. Petition for 

Review (PFR) File, Tab 3. We have not considered this submission because the record 

includes a complete copy of the transcript. Evidence that is already a part of the record 

is not new. Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980).

4

 Dr. M.G., Service Chief of Radiology, testified that the appellant “had berated 

[nurses] publically in front of patients” for the issues he raised in his protected 

disclosures. Hearing Transcript (HT) at 39-40.
4

standard relating to “Personality, Team Player, and Ethical Standards” because of 

the appellant’s inability to get along with his coworkers or to improve his 

interpersonal relationships despite repeated attempts to address concerns about 

the appellant’s behavior towards others in the hospital. HT at 212; W-3 File, 

Tab 14 at 35-36. He explained that he had rated the appellant more positively in 

this critical element in past years because he tended to be lenient, but his 

supervisors had instructed him to reduce the leniency of his grading to afford 

greater weight to the more important critical elements and to “increase the 

spread” of ratings among employees. HT at 92-93.

¶6 Dr. M.G. testified that he requested to terminate the appellant early 

because: his negative interactions with staff continued; Dr. M.G. had received 

complaints from several other physicians who no longer wished to refer their 

patients to the appellant; one employee requested a transfer out of the department 

because of the appellant’s behavior and another threatened to involve his union in 

the conflict between the appellant and staff; nurses complained about the 

appellant’s apparent indifference to or disregard for pain suffered by patients 

during his procedures; several patients did not want the appellant to perform their 

procedures; and the appellant received very poor evaluations from resident 

doctors.

5

 HT at 94-110, 154, 215-34, 236-54; W-1 File, Tab 5, Subtabs 4e-4n; 

W-2 File, Tab 9, Subtabs 35-40; W-3 File, Tab 14 at 100, 114-20. 

¶7 When an appellant shows by preponderant evidence that he made a 

protected disclosure which was a contributing factor in the decision to take a 

personnel action, the Board will order corrective action unless the agency shows 

by clear and convincing evidence it would have taken the same action absent any 

whistleblowing. Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, 

¶ 25 (2014). Clear and convincing evidence “is that measure or degree of proof 

 5 In fact, after receiving a poor evaluation from an anonymous resident, the appellant 

inquired as to what type of punitive action would be appropriate to prevent disgruntled 

residents from retaliating against physicians. W-3 File, Tab 14 at 120; HT at 202-03. 
5

that produces in the mind of the trier of fact a firm belief as to the allegations 

sought to be established.” 5 C.F.R. § 1209.4(d). It is a higher standard than 

preponderant evidence. Id. 

¶8 In determining whether an agency has met its burden, the Board will 

consider all of the relevant factors, including the following, which are known as 

the Carr 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 the 

agency officials who were involved in the decision; and (3) any evidence that the 

agency takes similar actions against employees who are not whistleblowers but 

who are otherwise similarly situated. Carr v. Social Security Administration, 

185 F.3d 1318, 1323 (Fed. Cir. 1999); Parikh v. Department of Veterans Affairs, 

116 M.S.P.R. 197, ¶ 36 (2011). The Board must consider all the pertinent record 

evidence in making this determination, both evidence that supports the agency’s 

case and evidence that detracts from it. See Whitmore v. Department of Labor, 

680 F.3d 1353, 1368 (Fed. Cir. 2012); see also Rumsey v. Department of Justice, 

120 M.S.P.R. 259, ¶ 30 (2013).

¶9 The agency presented extensive documentary evidence and hearing 

testimony and, after considering both the agency’s and the appellant’s evidence,

the administrative judge determined that the agency met its clear and convincing 

evidence burden. ID at 21-34. The administrative judge based her finding on 

several factors. First, the agency’s evidence in support of its actions was strong

and was bolstered by the credibility of the agency’s witnesses and by the 

appellant’s demeanor while testifying. ID at 31-32. Second, aside from the 

evidence that satisfied the knowledge/timing test, there was no evidence of any 

retaliatory motive. She found that the agency welcomed the appellant’s 

complaints because it did not want to have bad nurses; it only needed more 

specific facts so it could investigate the allegations and correct any problems it 

discovered. ID at 32-33. She also found that the manager who allegedly 

retaliated against the appellant gave him a positive performance rating and a 
6

bonus after he began making his disclosures. ID at 33. Third, she found that 

there was no evidence considering any similarly-situated employees. Id. 

¶10 On review, the appellant contends that the administrative judge overlooked 

impeachment evidence that undercut her finding that the agency had strong 

evidence in support of its action. PFR File, Tab 4 at 22-23. The appellant 

correctly points out that only one nurse, Nurse S.L., testified that he behaved 

inappropriately towards IR nurses, and he argues that her testimony was based on 

gossip and snooping and she was worried that she was going to get fired as a 

result of his disclosures and thus had reason to be biased against him. PFR File, 

Tab 4 at 22-23; HT at 340. The appellant asserts that all of the other witnesses 

presented testimony that “completely impeached the [agency’s] allegation that 

[the appellant’s] conduct towards the nurses was improper.” PFR File, Tab 4

at 23.

¶11 The administrative judge did not overlook the testimony to which the 

appellant refers. She discussed it in the initial decision and implicitly found that 

it did not undercut the agency’s evidence of the appellant’s improper behavior 

towards the nurses in his own department. ID at 25-28. Doctor M.M., Doctor 

V.V., and Technician J.T. testified that they had a high opinion of the appellant’s 

clinical skills and professionalism, but they all worked in different departments 

and had not observed how the appellant behaved towards the IR nurses. HT 

at 320-28, 365-72, 376-87. Doctor N.E., one of the appellant’s former 

supervisors, also had a high opinion of him and worked in the IR, but she 

generally only knew about the end results of his procedures and not the means of 

accomplishing the procedures or the details of what occurred during the 

procedures. HT at 112-22. The fact that these witnesses did not observe if the 

appellant engaged in objectionable behavior is entitled to little probative value 

given that they had little opportunity and capacity to observe the events in 

question. See McGowan v. Veterans Administration, 30 M.S.P.R. 221, 223 (1986)

(testimony of certain witnesses was not probative because they were not present 
7

to witness the entire incident in question); see also Social Security Administration

v. Long, 113 M.S.P.R. 190, ¶¶ 33-34 (2010) (the opportunity to observe the event 

in question is a factor in determining credibility) (citing Hillen v. Department of 

the Army, 35 M.S.P.R. 453, 458 (1987)), aff’d, 635 F.3d 526 (Fed. Cir. 2011). 

Moreover, the appellant’s own testimony does not outweigh the testimony of 

Nurse S.L. because the administrative judge found that his testimony was not 

credible. See McGowan, 30 M.S.P.R. at 223. The Board must give deference to 

an administrative judge’s credibility determinations when they are based, 

explicitly or implicitly, on the observation of 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). Here, the administrative judge explicitly 

relied on witness demeanor as one of the factors in making her credibility 

determinations. ID at 31-32. Thus, because the appellant has not proffered a 

sufficiently sound reason for disturbing the administrative judge’s credibility 

determinations, we must defer to them.

¶12 Dr. M.G. testified that, although he had been fielding ongoing complaints 

about the appellant’s behavior for some time, “[T]he thing that broke the camel’s 

back was the disregard for patients’—for severe patient pain.” HT at 258-59. 

This statement refers to two incidents in December 2009.6

 One involved a patient 

who suffered an allergic reaction to a dye the appellant injected during a 

procedure. It appears that the appellant continued the procedure rather than 

managing the patient’s reaction before continuing the procedure. HT at 215-34; 

W-1 File, Tab 5, Subtabs 4e, 4h. In the second incident, when another patient, 

Patient T., screamed in apparent pain during a procedure, the appellant continued 

 6

 Dr. M.G. testified about several other similar incidents during the same time period, 

HT at 240-58, but these two incidents appear to be the most important in Dr. M.G.’s 

decision to terminate the appellant’s appointment.
8

the procedure without attending to the patient’s pain. HT at 239-44; W-1, Tab 5, 

Subtabs 4f, 4h-4j. 

¶13 On review, the appellant asserts that the evidence in support of the agency’s 

version of the two events that triggered his termination was weak, and was 

entirely rebutted by his own testimony that his conduct of the procedures was 

appropriate, ethical, and consistent with the highest standards of care. PFR File, 

Tab 4 at 26. The appellant contended below that the patient was in no danger and 

that he stopped the procedure and administered an antihistamine when the patient 

reported “a little itch or whatever.” HT at 598-600. We find these arguments

unpersuasive. In fact, the record reflects that the patient’s throat had begun to 

close. HT at 219; W-1 File, Tab 5, Subtabs 4e at 1, 4h at 2. 

¶14 The appellant justified the second incident by stating that the patient was in 

no danger, the procedure would not cause severe pain, and Patient T.’s screaming 

was not necessarily related to any actual pain. HT at 587-92. Patient T. was an 

elderly patient with dementia and he was known to scream with little provocation, 

but his reputation for screaming does not mean he was incapable of feeling pain 

and this was a painful procedure. HT at 240-41, 721. Patient T.’s protests during 

the procedure were loud enough to upset patients waiting for their procedures in 

the holding room. HT at 241; W-1 File, Tab 5, Subtabs 4j-4k. It is unclear how 

the appellant could be so certain Patient T. was not experiencing any pain, 7 and 

he does not appear to have considered the disruptive or downright frightening 

effect on waiting patients. Dr. M.G. testified, “It’s inhumane to do a procedure 

 7

 The appellant claimed for the first time during cross-examination that he administered 

local anesthetic at the beginning of the procedure but merely failed to document it in 

the medical record. HT at 719-27. However, in an affidavit submitted with his appeal 

and in his testimony on direct examination, he stated that he had local anesthetic 

administered at the end of the procedure when the patient’s incision was sewn shut; he 

further stated that he made an intentional decision not to administer sedation or 

anesthetic at the beginning of the procedure because he believed that the risks 

outweighed the benefits. Compare HT at 490-92, with HT at 720; see HT at 737-38; see 

also W-1 File, Tab 1, Subtab D at 3-4. 
9

on an elderly demented person and—who is yelling loud enough to prevent 

somebody else in the next-door room from having their procedure, and still 

withhold the pain medication and the sedation.” HT at 244. 

¶15 In any event, the administrative judge found that the appellant’s version of 

events was not credible explicitly based, in part, on his demeanor. ID at 31-32. 

Her findings are entitled to deference absent a “sufficiently sound” reason for 

overturning them. See Haebe, 288 F.3d at 1301. The appellant has proffered no 

such reason.

¶16 The appellant also alleges on review that the agency’s case against him is 

weak because it relied primarily on hearsay evidence. PFR File, Tab 4 at 27-32. 

It is well-settled law that relevant hearsay evidence is admissible in 

administrative proceedings. Luten v. Office of Personnel Management, 

110 M.S.P.R. 667, ¶ 12 (2009). The probative value of hearsay evidence may, in 

appropriate circumstances, be outweighed by other evidence of record, including 

an appellant’s hearing testimony. See Luten, 110 M.S.P.R. 667, ¶ 12; see also

Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83-87 (1981) (assessment of 

the probative value of hearsay evidence necessarily depends on the circumstances 

of each case). Hearsay must be evaluated on a case-by-case basis to determine if 

it is inherently truthful and more credible than the evidence offered against it. 

Vojas v. Office of Personnel Management, 115 M.S.P.R. 502, ¶ 13 (2011); Long, 

113 M.S.P.R. 190, ¶ 27.

¶17 While the appellant is correct that the fact that much of the agency’s case 

against him is based on hearsay evidence, which is generally entitled to less 

weight than live testimony, we find that the administrative judge properly 

afforded the hearsay evidence significant weight under the circumstances of this 

case. The appellant argues that the hearsay evidence is not reliable because the 

declarants were biased against him and because their statements were fully 

contradicted by his own testimony. PFR File, Tab 4 at 27-32. There was some 

evidence that the declarants were concerned that the appellant could retaliate 
10

against them should he ever become a manager. 8 HT at 356-57. The concerns of 

the declarants that there might be a penalty exacted for their coming forward does 

not necessarily detract from their statements. Further, the fact that the appellant’s 

testimony contradicted the hearsay evidence does not detract significantly from 

its reliability because the administrative judge found that the appellant’s 

testimony was not credible and her credibility findings are owed deference. ID 

at 31-32. Therefore, although the agency’s case relied fairly heavily on hearsay 

evidence, we find that the hearsay nature of the agency’s evidence did not have a 

significant impact on the reliability of that evidence or on the strength of the 

agency’s case against the appellant. 

¶18 The administrative judge also found that there was little evidence that the 

deciding official harbored a retaliatory motive against the appellant. ID at 32-33. 

On review, the appellant challenges this finding and identifies several bits of 

evidence that could possibly be interpreted as reflecting an improper motive. 

PFR File, Tab 4 at 15-21. 

¶19 The appellant disclosed on July 1, 2008, alleged poor performance on the 

part of the nurses, mostly by their alleged failure to be immediately available 

when needed, by carrying cell phones in the ward, and by eating in the ward. 

W-1 File, Tab 1, Subtab C. The appellant asserts that Dr. M.G. did not take his 

disclosures seriously and showed a disregard for patient safety, but actually 

Dr. M.G. asked the appellant for more specific information so he could have the 

allegations investigated through proper channels by the Nurse Manager’s office. 

PFR File, Tab 4 at 15-17, 19-21; HT at 34, 63. The appellant also points to 

Dr. M.G.’s admission that he let some things slide and that the appellant’s 

concerns had to be addressed in context as evidence that Dr. M.G. “held patient 

safety in contempt.” PFR File, Tab 4 at 16-21; HT at 46-48, 155-57. Context 

 8

 The appellant had a tendency towards vindictiveness, as evidenced by his email, W-3 

File, Tab 14 at 120, seeking advice on how to punish the residents who gave him a bad 

evaluation. See supra note 5.
11

matters. There is an enormous difference between a nurse in an understaffed 

ward who is unavailable to answer pages as quickly as a physician might like 

because she is attending another patient, and a nurse who is available to respond 

to a page and chooses not to do so. Dr. M.G. acknowledged that there were 

technical violations of hospital rules that potentially put the hospital’s 

accreditation at risk, but explained that the agency had a nursing shortage and that 

nurses sometimes ate in the nonpatient care areas of the ward because otherwise 

they would have to skip lunch altogether. HT at 46-47, 155-57. Considered in 

this context, we find that Dr. M.G.’s decision to disregard some technical

violations of the rules by tolerating the nurses’ decision to give up their lunch 

breaks so they could still eat and be available to patients does not support a 

conclusion that he “held patient safety in contempt.”

¶20 The appellant also identifies what he considers to be direct evidence of 

retaliatory motive. PFR File, Tab 4 at 15-18. He alleges that Dr. M.G. testified 

that he was “displeased” about the appellant’s disclosures, HT at 42-43, and the 

hospital’s Chief of Staff called the disclosures “inflammatory” and hostile 

towards the nurses, 9 HT 50-53, 55. He also alleges that Dr. M.G. wanted the 

appellant to raise concerns quietly and in a nice way. PFR File, Tab 4 at 18; HT

at 59. Again, we find the appellant’s arguments unpersuasive. Dr. M.G.

repeatedly made it clear that he welcomed the appellant’s disclosures because he 

did not want incompetent nurses treating veterans and it was in his best interest to 

ensure that this did not happen, HT at 155, but he was concerned that the hostile 

 9

 In his disclosure, the appellant referred to the nurses as “not concerned about their 

duties toward our patients” and having an “uncaring to callous attitude.” W-2, Tab 9, 

Subtab 3 at 30. He further described some unnamed nurses as exhibiting “constant 

passive aggressive and troublemaking behavior” and referred to them as “deviants.” Id. 

at 32. According to Webster’s Third New International Dictionary of the English 

Language Unabridged 1159 (Philip Babcock Gove et al. eds., 1993), a common 

definition of the word “inflammatory” is “tending to excite anger, animosity, disorder, 

or tumult.” The manner in which the appellant characterized the nurses’ presumed 

intent and motives could most certainly be perceived as “inflammatory.”
12

nature of the appellant’s disclosures might further degrade the poor relationship 

between the appellant and the nurses. He explained that he considered some of 

the appellant’s disclosures to be hostile because the appellant called some of his 

coworkers “deviants” and said they were “uncaring” or “callous,” HT at 54, and 

he testified that saying that he wanted staff to raise issues in a nice way meant 

that he expected the employees to raise their issues not in public and not in front 

of patients, and to behave in a professional manner. HT at 59. He testified: 

[M]y concern with [the appellant] all along was not the specifics of 

the allegations he was making; it was the manner. The manner in 

which he publically berated and demeaned the nurses. Not the—not 

the allegations themselves, which I felt were worthy of being 

referred up the chain of command to be investigated, but the actual 

manner in which he engaged the nurses, as I counseled him many 

times.

HT at 48-49. In fact, despite the appellant’s disclosures, Dr. M.G. credibly 

testified that he recommended the appellant’s reappointment in September 2009,

and the appellant was reappointed despite the counseling he had received about 

how he treated the nurses and the poor evaluations he received from the residents. 

HT at 205-06; W-2 File, Tab 9, Subtab 34. Therefore, we agree with the

administrative judge that any slight evidence of retaliatory motive is outweighed 

by other evidence of record weighing against a finding of retaliatory motive. ID 

at 32-33. Considering the record evidence as a whole, the administrative judge 

correctly found scant evidence of retaliatory motive. Cf. McCarthy v. 

International Boundary & Water Commission, 116 M.S.P.R. 594, ¶ 32 (2011) 

(finding that in some cases, circumstantial evidence bearing on retaliatory motive 

includes the substance of the appellant’s protected activity as well as the extent to 

which the relevant management officials were aware of it), aff’d, 497 F. App’x 4 

(Fed. Cir. 2012), cert denied, 134 S. Ct. 386 (2013).

¶21 We further find that the administrative judge correctly found that there was 

no evidence regarding any action the agency may have taken against any 

similarly-situated employees who engaged in similar misconduct but were not 
13

whistleblowers. ID at 33. On review, the appellant argues that the fact that the 

agency presented no evidence concerning its treatment of similarly-situated

nonwhistleblowers creates an adverse inference against the agency. PFR File, 

Tab 4 at 21. The Federal Circuit has recognized that an agency has no affirmative 

burden to produce evidence on all of the three Carr factors; they are merely 

pertinent considerations for determining whether the agency’s evidence meets the 

clear and convincing evidence test. Whitmore, 680 F.3d at 1374. If there is some 

reason to believe that the agency has evidence concerning similarly-situated 

nonwhistleblowers but has failed to produce it, it may be appropriate to weigh the 

failure to produce such evidence against the agency. See id. In this regard, 

Whitmore refers to Chambers, in which the Board determined that the agency’s 

failure to show that it took similar actions against similarly-situated

nonwhistleblowers, together with the finding that the agency’s case against the 

appellant was not very strong and the agency had a strong motive to retaliate, 

prevented the Board from forming a firm conviction that the agency would have 

taken the same action absent the appellant’s whistleblowing. See Chambers v. 

Department of the Interior, 116 M.S.P.R. 17, ¶ 70 (2011). In such a case, if the 

agency fails to produce some evidence concerning similarly-situated 

nonwhistleblowers, the agency fails to meet its burden of proof because there is 

nothing to counterbalance the adverse findings on the first two Carr factors. 

¶22 The appellant does not cite any precedent standing for the proposition that 

an agency will fail to meet the clear and convincing evidence test solely because 

it introduced no evidence concerning similarly-situated employees. Rather, the 

Federal Circuit suggests that, except in unusual situations, if there is no evidence 

that the agency took similar actions against nonwhistleblowers, then that factor 

drops out of the analysis. See Whitmore, 680 F.3d at 1374. This is the approach 

the Board has taken for some time. See McCarthy, 116 M.S.P.R. 594, ¶ 65; see 

also Sutton v. Department of Justice, 94 M.S.P.R. 4, ¶ 19 (2003), aff’d, 

97 F. App’x 322 (Fed. Cir. 2004). In this case, as in McCarthy and Sutton, there 
14

was strong evidence in support of the agency’s case against the appellant, weak 

evidence of motive, and no evidence concerning similarly-situated employees. 

Under the circumstances, we find that it is not appropriate to draw an adverse 

inference against the agency but, rather, that the third Carr factor is not a 

significant consideration under the circumstances of this case. See Rumsey, 

120 M.S.P.R. 259, ¶ 36 (“There is no evidence in the record concerning how the 

agency [treated] appropriate non-whistleblower comparators, so consideration of 

this factor does not materially assist [the Board] in deciding whether the agency 

has met its burden of proof.”).

¶23 To meet the clear and convincing standard, the evidence must produce a 

“firm belief as to the allegations sought to be established.” 5 C.F.R. § 1209.4(e); 

Rumsey, 120 M.S.P.R. 259, ¶ 34. Weighing the strength of the agency’s evidence 

in support of its decision to terminate the appellant’s temporary appointment prior 

to its expiration date and to take other personnel actions as discussed above 

against the very weak evidence of retaliatory animus that may tend to indicate 

that Dr. M.G. had some motive to retaliate against appellant, we find that the 

agency would have taken the same actions even if the appellant had not engaged 

in any protected activity. Therefore, we find that the agency has met its burden 

of showing by clear and convincing evidence that it would have taken the same 

actions absent any whistleblowing, and we DENY the appellant’s petition for 

review.

¶24 In its cross petition for review, the agency argues that the administrative 

judge erred by finding that the appellant proved that his disclosure was a 

contributing factor in a personnel action. PFR File, Tab 8 at 23-28. Given our 

finding above that the agency proved by clear and convincing evidence that it 

would have taken the same personnel actions absent any whistleblowing, 

resolution of the agency’s cross petition for review in favor of the agency would 

not affect the outcome of this appeal. We find, therefore, it is not necessary to 

address the agency’s cross petition for review and we DENY it.
15

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit.

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 

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 
16

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 

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