United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 9, 2020 Decided August 24, 2021

No. 19-1041

ROBIN S. MARCATO,

PETITIONER

v.

UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT,

RESPONDENT

MERIT SYSTEMS PROTECTION BOARD,

INTERVENOR

On Petition for Review of an Order

of the Merit Systems Protection Board

Kathleen McClellan argued the cause for petitioner. With 

her on the briefs was Jesselyn A. Radack.

Allison Kidd-Miller, Assistant Director, U.S. Department 

of Justice, argued the cause for respondent. With her on the 

brief were Jeffrey Bossert Clark, Acting Assistant Attorney 

General, Robert E. Kirschman, Jr., Director, and Isaac B. 

Rosenberg, Attorney.

Tristan L. Leavitt, General Counsel, Merit Systems 

Protection Board, Katherine M. Smith, Deputy General 

Counsel, and Stephen W. Fung, Attorney, were on the brief for 
2

intervenor Merit Systems Protection Board in support of 

respondent.

Before: GARLAND,

* PILLARD, and KATSAS, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge KATSAS.

KATSAS, Circuit Judge: A federal agency may defend an 

adverse personnel action taken against a whistleblower by 

showing that it would have taken the same action in the absence 

of any protected disclosures. In this case, the Merit Systems 

Protection Board found that the Office of the Inspector General 

(OIG) of the United States Agency for International 

Development (USAID) would have fired petitioner Robin 

Marcato for workplace misconduct in the absence of her 

protected disclosures. We conclude that substantial evidence 

supports this finding.

I

The Civil Service Reform Act permits federal employees

to appeal certain adverse personnel actions, including removal 

from office, to the MSPB. 5 U.S.C. §§ 7512(1), 7513(d). To 

sustain a challenged action before the MSPB, the employing 

agency must show that the charged employee conduct

occurred, id. § 7701(c)(1)(B); that the adverse action was 

necessary to promote the efficiency of the service, id.

§ 7513(a); and that the penalty imposed was reasonable, 

Douglas v. Veterans Admin., 5 M.S.P.R. 280, 299–300 (1981). 

See, e.g., Bryant v. Nat’l Sci. Found., 105 F.3d 1414, 1416 

* Then-Judge Garland was a member of the panel when this case 

was submitted but did not participate in its final disposition. Judge 

Pillard and Judge Katsas have acted as a quorum for this opinion and 

judgment. See 28 U.S.C. § 46(d).
3

(Fed. Cir. 1997). The MSPB may not sustain an adverse action 

“based on any prohibited personnel practice described in 

section 2302(b).” 5 U.S.C. § 7701(c)(2)(B). As relevant here, 

section 2302(b) prohibits any adverse personnel action 

“because of” an employee’s “disclosure of information” about 

unlawful activity, gross agency mismanagement, or similar 

conduct. Id. § 2302(b)(8)(A).

The Whistleblower Protection Act permits any federal 

employee subjected to a personnel practice prohibited by 

section 2302(b)(8) to “seek corrective action” from the MSPB. 

5 U.S.C. § 1221(a). In such a case, the employee bears the 

burden to show that her protected disclosures were a 

“contributing factor in the personnel action.” Id. § 1221(e)(1). 

The employee may discharge that burden through 

“circumstantial evidence,” including evidence that an official 

took the personnel action shortly after learning of the 

disclosure. Id. If the employee carries this burden, the agency 

can nonetheless prevail by showing “by clear and convincing 

evidence that it would have taken the same personnel action in 

the absence of such disclosure.” Id. § 1221(e)(2). Factors that 

the Federal Circuit has identified as pertinent to this defense 

include:

the strength of the agency’s evidence in support of its 

personnel action; the existence and strength of any 

motive to retaliate on the part of the agency officials 

who were involved in the decision; and any evidence 

that the agency takes similar actions against 

employees who are not whistleblowers but who are 

otherwise similarly situated.

Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999). 

This burden-shifting framework governs appeals to the MSPB 

under the Civil Service Reform Act, which can fairly be 
4

described as a kind of “corrective action” for adverse personnel 

actions undertaken in retaliation for whistleblowing. 

Accordingly, on review of an MSPB decision under the CSRA, 

we must determine whether the MSPB correctly applied the 

Whistleblower Protection Act framework to factual findings

supported by substantial evidence.

A party aggrieved by an MSPB decision may petition a 

court of appeals for review. 5 U.S.C. § 7703(a)(1). Until 2012, 

the Federal Circuit had exclusive jurisdiction over such 

petitions. See id. § 7703(b)(1)(A). Since then, the regional 

circuits have had concurrent jurisdiction over petitions 

challenging only the disposition of whistleblower-retaliation 

claims. See id. § 7703(b)(1)(B). Because we were given

jurisdiction to review MSPB decisions only recently, we 

consult Federal Circuit precedent for guidance, as other 

regional circuits have done. See Acha v. USDA, 841 F.3d 878, 

880 n.2 (10th Cir. 2016).

II

USAID administers the federal government’s foreign 

development assistance program. Hanson v. USAID, 372 F.3d 

286, 289 (4th Cir. 2004). The OIG is the Agency’s oversight 

arm. Its components include an Office of Investigations, which 

conducts criminal and other investigations of grant recipients

and others involved in the agency’s programs, and an Office of 

Management, which provides support services to the OIG. In 

2012, the OIG hired Marcato to the management office, where 

she worked as a management analyst. 

During her tenure at OIG, Marcato frequently alleged 

misconduct by its high-ranking officials, including Acting 

Inspector General Michael Carroll, Deputy Inspector General 

Catherine Trujillo, Chief of Staff Justin Brown, and Deputy 

Assistant Inspector General Lisa McClennon. Beginning in 
5

2012, Marcato reported within the OIG that officials had 

doctored various audits and reports sent to Congress. In 2013, 

Marcato repeated those allegations to Senate staffers, 

prompting a critical letter from Senator Coburn and 

unfavorable media coverage in the Washington Post. In 

October 2014, Carroll withdrew his nomination to be the 

Senate-confirmed Inspector General, and he retired from the 

OIG a few months later. 

While routinely reporting the misdeeds of others, Marcato

engaged in concerning conduct herself. In December 2014, she

approached Rebecca Giacalone, an agent in the Office of 

Investigations, about an ongoing criminal probe on which 

Giacalone was working. The investigation concerned

International Relief and Development, Inc. (IRD), which was 

Marcato’s former employer and one of USAID’s largest grant 

recipients. Marcato identified potential witnesses, including 

former IRD employee Dawn Greensides. After Marcato told 

Giacalone that Greensides would feel uncomfortable 

cooperating, Giacalone asked Marcato to vouch for her to 

Greensides as a trustworthy investigator. Marcato proceeded 

to send Greensides an e-mail that went well beyond the scope 

of Giacalone’s request: Marcato identified the subject of the 

investigation, the name of a suspect, and the name of a 

cooperating witness, and she stated that the OIG was 

considering a subpoena for IRD files. No OIG employee 

reviewed the e-mail beforehand or learned of it until a year 

later.

Marcato became increasingly preoccupied with the IRD 

probe. She would seek to discuss it with Giacalone several 

times daily. Giacalone became uncomfortable because 

Marcato was not a trained investigator, and her visits were 

distracting. Giacalone relayed her concerns to her supervisors 

in the Office of Investigations, including McClennon. 
6

McClennon passed on the concerns to Trujillo and Robert 

Ross, who supervised Marcato in the Office of Management.

Trujillo and Ross then developed a protocol requiring Marcato 

to go through Ross if she wanted to speak to Giacalone or enter 

the Investigations workspace. In February 2015, Ross and 

Trujillo met with Marcato to explain the protocol. Marcato 

recorded the meeting on her cell phone, despite a USAID 

security policy barring the unauthorized use, in restricted 

workspace, of any device that can transmit audio or video.

The protocol failed to dampen Marcato’s efforts to 

participate in the IRD investigation. Over the next month, 

Marcato e-mailed Giacalone three times to flag possible leads 

and to disparage the protocol as an “insulting waste of ... time.” 

J.A. 83. In March 2015, the Office of Investigations disabled 

Marcato’s access to its suite, and Ross again instructed her to 

follow the protocol. Yet Marcato violated the protocol at least 

three more times in the next six months. On one occasion, she 

initiated a conversation with an investigator by standing on 

office furniture to speak over the top of a wall dividing the 

respective workspace of the Management and Investigations 

offices. On another occasion, she trailed someone into the 

Investigations suite, then walked past staff who tried to prevent 

her from entering.

In October 2015, Ross proposed to reprimand Marcato for 

her repeated violations of the protocol. In response, Marcato 

attached her e-mail to Greensides, which prompted concern 

over its disclosure of sensitive information. Around this time, 

Trujillo learned that Marcato had recorded their February 2015 

meeting. According to Trujillo, newly confirmed Inspector 

General Ann Calvaresi Barr decided to investigate Marcato’s 

conduct, including her e-mail disclosure, cell phone recording, 

and failure to follow the communications protocol. To avoid 

any conflicts of interest, Calvaresi Barr arranged for the OIG 
7

of the Department of Defense to conduct the investigation. In 

the formal, written request for assistance, Trujillo noted the 

“sensitivity” of the investigation given that Marcato “selfidentified as a whistleblower” and had recently made 

disclosures to Congress of alleged misconduct by high-ranking 

USAID officials. J.A. 62. Trujillo requested DoD’s help to 

ensure that the allegations against Marcato were “appropriately 

investigated.” Id.

The ensuing investigation consumed over a year. In an 

interview, Marcato informed DoD investigators that, at the 

beginning of her February 2015 meeting with Ross and 

Trujillo, she told them that she would be recording the meeting

with her cell phone, which she visibly placed on a table. 

Marcato made similar statements to the USAID security office.

Ross and Trujillo both denied that Marcato told them she would 

be recording the meeting.

The DoD OIG finished its probe in June 2017. Its report

substantiated four instances of misconduct. First, Marcato 

improperly disclosed sensitive information about an ongoing

investigation to Greensides. Second, Marcato violated 

USAID’s security policy by recording the meeting with Ross 

and Trujillo on her cell phone. Third, Marcato made false 

statements claiming that she told Ross and Trujillo that she 

would be recording the meeting. Fourth, Marcato repeatedly 

violated the communications protocol.

Debra Scott, Marcato’s direct supervisor at the time, 

reviewed the report and proposed that Marcato be removed 

based on these charges. Jason Carroll,1 who had replaced Ross 

as the Assistant Inspector General for the Management Office, 

then removed Marcato. Scott outlined four charges matching 

the instances of misconduct substantiated by the DoD OIG, 

1 No relation to former Acting IG Michael Carroll.
8

specifically noting that the disclosure to Greensides “could 

have jeopardized the integrity” of an ongoing criminal 

investigation and that “knowing falsification in any official 

investigation or inquiry strikes at the heart of the employeeemployer relationship and OIG’s core mission.” J.A. 22. 

Carroll stated that his confidence in Marcato had been 

“irreparably damaged.” Id. at 11.

Marcato appealed her removal to the MSPB. After a fourday evidentiary hearing, an administrative judge sustained the 

decision. He concluded that Marcato committed the charged 

conduct, that her removal promoted the effective functioning 

of the agency, and that the penalty of removal was reasonable. 

The judge then turned to the question of whistleblower 

retaliation. Based on circumstantial evidence, he found that 

retaliation was a contributing factor in Scott’s decision to 

propose removing Marcato and in Jason Carroll’s decision to 

remove her. But the judge then found, by clear and convincing 

evidence, that the OIG would have removed Marcato even in 

the absence of any protected disclosures.

Marcato did not ask the full MSPB to review the judge’s

decision, which became the Board’s final decision by operation 

of law. 5 C.F.R. § 1201.113. Because Marcato now contests 

only the decision on her retaliation claim, we have jurisdiction 

over her petition for review under 5 U.S.C. § 7703(b)(1)(B), 

which applies to the disposition of whistleblower-retaliation 

allegations raised either as stand-alone claims under the 

Whistleblower Protection Act or as affirmative defenses under 

the CSRA. See Baca v. Dep’t of the Army, 983 F.3d 1131, 1137 

(10th Cir. 2020) (noting that § 7703(b)(1)(B) “does not 

differentiate between whistleblower actions raised as direct 

claims and those raised as affirmative defenses”).
9

III

Marcato disputes whether USAID proved by clear and 

convincing evidence that it would have removed her had she 

not made any protected disclosures. The clear-and-convincing 

standard requires “reasonable certainty of truth.” United States 

v. Montague, 40 F.3d 1251, 1255 (D.C. Cir. 1994) (cleaned up). 

We review for substantial evidence the administrative judge’s 

determination that USAID met its clear-and-convincing 

burden. See 5 U.S.C. § 7703(c)(3); Greenspan v. Dep’t of 

Veterans Affairs, 464 F.3d 1297, 1306 (Fed. Cir. 2006). 

Substantial evidence is “such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion.”

Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). In 

reviewing the evidence, we will consider the factors set forth 

in Carr, 185 F.3d at 1323, as did the administrative judge.

A

The first Carr factor is “the strength of the agency’s 

evidence in support of its personnel action.” 185 F.3d at 1323. 

The stronger the evidence, the more likely the agency would 

have taken the personnel action. Here, the judge reasonably

determined that Marcato’s removal was supported by “strong 

evidence” of significant workplace misconduct. J.A. 723.

First, Marcato sent a highly inappropriate e-mail to 

Greensides, a potential witness in an ongoing criminal 

investigation. On its face, the e-mail discloses sensitive 

information about the investigation, including the subject of the 

investigation, the name of a suspect, the name of a cooperating 

witness, and information about a potential subpoena. OIG 

officials testified that these disclosures could have 

compromised the investigation. Marcato’s only response is 

that Giacalone asked her to send an e-mail to Greensides. But

Giacalone asked Marcato only to vouch for her to Greensides 
10

as a trustworthy investigator; Giacalone specifically denied 

authorizing Marcato to disclose the details of the investigation. 

The administrative judge plausibly found Giacalone’s 

testimony to be credible, and we cannot set aside that “virtually 

unreviewable” assessment. King v. HHS, 133 F.3d 1450, 1453 

(Fed. Cir. 1998) (quoting Clark v. Dep’t of the Army, 997 F.2d 

1466, 1473 (Fed. Cir. 1993)).

Second, Marcato violated a USAID security policy by 

recording her February 2015 meeting with Trujillo and Ross on 

a cell phone. The policy prohibits using “devices which 

transmit audio or video” in restricted areas without the advance 

permission of the Agency’s security office. J.A. 428. The 

meeting was held in OIG workspace prominently marked as 

restricted, and it was undisputed that Marcato did not receive 

advance permission. Marcato objects that the USAID security 

office, in a February 2016 warning letter to her, stated that it 

could not determine whether she had violated the policy. But 

that was because Marcato refused to tell the security office 

“what type of device was used for these audio recordings.” Id.

at 81. Marcato later admitted to recording the meeting on her 

cell phone, in testimony before the DoD investigators and the 

administrative judge.

Third, the false-statements charge was amply supported. 

While under oath, Marcato told DoD investigators that she had 

announced to Trujillo and Ross that she would be recording the

February 2015 meeting with her cell phone, which she visibly 

placed on a table. Marcato also made similar statements to the 

USAID security office. But after Trujillo and Ross testified to 

the contrary, Marcato claimed not to “remember the details of 

the meeting.” J.A. 619. And when asked to reconcile that 

position with her prior statements, she explained that she “said 

what was true to [her] at the time.” Id. at 620. The 

administrative judge found the testimony of Trujillo and Ross 
11

to be more credible than Marcato’s, and we have no reason to 

second-guess that assessment. See Pope v. USPS, 114 F.3d 

1144, 1149 (Fed. Cir. 1997). Marcato objects that Trujillo was 

biased and gave allegedly inconsistent testimony. But on the

issue of the recording, Trujillo’s testimony was internally 

consistent and matched Ross’s testimony. Marcato further 

contends that her false statements were not chargeable because 

she did not intend to mislead the agency for private material

gain. Marcato forfeited that argument by not raising it until her 

reply brief. Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001 

(D.C. Cir. 2008). The argument is also meritless; the 

administrative judge could reasonably infer an intent to mislead 

from the circumstances, and preventing the imposition of 

discipline surely qualifies as a private gain.

Fourth, Marcato repeatedly violated the communications 

protocol by initiating discussions with the Office of 

Investigations. Marcato highlights Ross’s testimony before the 

administrative judge that he disagreed with the protocol and did 

not think that Marcato needed to follow it. But Ross never 

suggested to Marcato that the protocol was optional. Rather, 

in the February 2015 meeting, Ross and Trujillo instructed 

Marcato to follow the protocol, and Ross’s notes document 

several later reminders. J.A. 89 (Mar. 12) (“I instructed Robin 

not to initiate any discussions with IG/I staff regarding their 

work.”); id. at 88 (Aug. 25) (same); id. at 85 (Sept. 22) (“I am 

directing you not to enter the Office of Investigations space 

unless authorized by me.”). And as the judge explained, Ross’s

“disagreement” with the protocol did not justify Marcato’s 

“refusal to follow” her supervisors’ instructions. Id. at 714.

B

The second Carr factor is “the existence and strength of 

any motive to retaliate on the part of the agency officials who 
12

were involved in the decision” under review. 185 F.3d at 1323. 

Those involved in the decision include the decisionmaker and 

“other agency officials who influenced the decision.” 

Whitmore v. DOL, 680 F.3d 1353, 1371 (Fed. Cir. 2012)

(quoting McCarthy v. Int’l Boundary & Water Comm., 116 

M.S.P.R. 594, 613 (2011)).

1

Marcato contends that the administrative judge improperly 

required her to prove the second Carr factor. But the factors

are “merely appropriate and pertinent considerations” in

“determining whether the agency carries its burden of proving 

by clear and convincing evidence that the same action would 

have been taken absent the whistleblowing.” Whitmore, 680 

F.3d at 1374. Here, the judge correctly stated the governing 

rule that, if the employee proves that protected activity was a 

“contributing factor” in the adverse personnel action at issue, 

“the agency must prove by clear and convincing evidence that 

it would have taken the same action even absent the disclosure 

or other protected activity.” J.A. 719; see 5 U.S.C. § 1221(e). 

Then, in applying the rule, the judge concluded that USAID 

“has shown by clear and convincing evidence that it would 

have taken the same personnel action in the absence of 

whistleblowing or protected activity.” J.A. 722. The judge 

summarized the motives and testimony of the DoD 

investigators and the USAID officials involved in Marcato’s 

removal in its analysis of the second Carr factor, and it 

weighed that evidence against evidence bearing on the other 

Carr factors—including what he characterized as “strong” 

evidence of significant misconduct. Id. at 723. After doing so, 

the judge restated his conclusion: “I find that the agency has 

proven by clear and convincing evidence that it would have 

removed the appellant even in the absence of her disclosures.” 
13

Id. at 726. This analysis correctly applied the burden-shifting 

framework of the Whistleblower Protection Act.

Marcato highlights the judge’s statement, in addressing the 

second Carr factor, that she “failed to show retaliatory 

motive.” J.A. 724. But the judge had already found that 

Marcato’s protected activity was a “contributing factor” in the 

termination decision, based on “circumstantial evidence” that 

Debra Scott and Jason Carroll removed Marcato while they 

knew about at least some of her disclosures. Id. at 720–22. In 

analyzing the second Carr factor, the judge made clear that 

there was no other evidence of retaliatory motive: Marcato’s 

disclosures involved neither Scott nor Jason Carroll; Scott

testified about instances in which she had supported Marcato’s

whistleblowing activity; and Carroll credibly testified that he 

made the decision to remove Marcato without any pressure 

from his OIG superiors. Id. at 724–25. In context, we 

understand the judge to have concluded that there was no 

evidence of retaliatory motive beyond the circumstantial case 

based on knowledge and timing, which made the evidence of 

retaliation relatively weak compared to the strong evidence of 

misconduct. See Kewley v. HHS, 153 F.3d 1357, 1364–65 

(Fed. Cir. 1998) (“Once the agency presented its evidence in 

support of its charges of independent causation for the removal, 

[an employee must] rebut the agency’s evidence or risk a 

finding that the agency had successfully established its

affirmative defense ....”). While the judge’s language on this 

point was perhaps imprecise, we have no doubt that he held 

USAID to its ultimate burden to prove by clear and convincing 
14

evidence that it would have fired Marcato regardless of her 

disclosures.

2

The administrative judge reasonably assessed evidence

about the motives of the officials involved in the decision to 

fire Marcato. As the judge explained, Marcato had made no 

allegations of wrongdoing against either the proposing official 

(Scott) or the removing official (Jason Carroll). Nor were Scott 

or Jason Carroll otherwise caught up in the congressional or 

media scrutiny that followed her disclosures. Moreover, the 

investigation leading to Marcato’s firing was done by an 

outside agency—the DoD OIG—and nothing suggested that its 

investigators “were influenced by retaliatory animus.” J.A. 

724. On review, Marcato does not even suggest such animus 

by Scott, Jason Carroll, or the DoD investigators.

Marcato instead focuses on other USAID officials with an 

alleged motive to retaliate—Michael Carroll, Trujillo, 

McClennon, and Brown—but she provides no evidence that 

any of them influenced the removal decision. Michael Carroll

retired before Marcato engaged in much of the misconduct 

investigated by DoD. Trujillo left the agency nine months 

before the removal decision and testified that she did not

influence the DoD investigation or the USAID removal 

decision. McClennon never supervised Marcato and attested 

that she never discussed Marcato with Jason Carroll. Brown

had no connection to Marcato beyond forwarding the DoD 

report to Scott and Jason Carroll, and he testified that he never 

discussed the substance of it with them. Scott and Jason Carroll 

corroborated the testimony of Trujillo, McClennon, and Brown

on all of these points.

Marcato primarily contends that USAID initiated the DoD 

investigation because of her protected activity. That assertion 
15

has several problems. First, Marcato’s own misconduct—

disclosing obviously sensitive information about an important, 

ongoing criminal investigation to a prospective witness—

provided ample basis for the investigation. Second, according 

to Trujillo, the investigation was ordered not by Trujillo, as 

Marcato contends, but by Calvaresi Barr, whom Marcato does 

not allege to harbor retaliatory motives. Third, the proposed 

reprimand leading to the discovery of Marcato’s unauthorized 

disclosures was issued by Ross, whom Marcato describes as 

her ally within USAID. Marcato stresses that USAID 

outsourced the investigation to DoD because of her 

whistleblower status. But she fails to explain why enlisting the 

help of an outside agency to investigate serious charges, rather 

than conducting the investigation through in-house

investigators who might more readily be perceived to have an 

interest in its outcome, should count against USAID here.

Alternatively, Marcato invokes what she describes as 

Trujillo’s retaliatory decision to devise the protocol and impose 

it on her over Ross’s objection. The governing statute prohibits 

any “personnel action” taken “because of” protected 

whistleblowing activity. 5 U.S.C. § 2302(b)(8). And the 

governing proof scheme makes the agency liable if the 

prohibited consideration was a “contributing factor” in the 

challenged action, unless the agency shows that it “would 

have” taken the same action anyway. Id. § 1221(e). The 

Supreme Court construed a similar scheme prohibiting adverse 

employment actions because of the employee’s military service 

in Staub v. Proctor Hospital, 562 U.S. 411 (2011). Invoking 

background principles of proximate cause and agency law, the 

Court held that an employer is liable if one of its agents intends 

to cause the adverse employment action, acts for the prohibited 

reason, and is a proximate cause of the adverse action. See id.

at 419–21. So, for example, an employer may be liable if one 

of its employees, for prohibited reasons, successfully persuades 
16

a neutral decisionmaker to terminate another employee. See id.

at 413–16.

This case does not fit that model. Marcato’s alternative 

theory posits that the retaliatory February 2015 protocol caused 

Marcato’s ensuing violations of it, which caused Ross to issue 

his proposed reprimand, which caused Marcato to reveal her 

past misconduct disclosing sensitive information, which 

caused the DoD OIG investigation, which caused her 

September 2017 removal. But the protocol merely required 

Marcato to obtain permission from her supervisor before 

straying outside her lane in the management office; that kind of 

modest restriction does not plausibly reflect an intent to 

orchestrate an ultimate termination. Moreover, the protocol 

was temporally and causally remote from the removal, 

separated by Marcato’s intervening decisions (1) to provoke 

repeated confrontations rather than asking Ross to approve her 

continued contact with Giacalone and (2) to reveal evidence of 

significant, previously unknown misconduct regarding her 

unauthorized disclosure of sensitive information. Given the 

length of this chain, and the unforeseeable twists and turns 

within it, the imposition of the protocol cannot be considered a 

proximate cause of the termination decision. See, e.g., Anza v. 

Ideal Steel Supply Corp., 547 U.S. 451, 457 (2006) (proximate 

cause demands “some direct relation between the injury 

asserted and the injurious conduct alleged” (quoting Holmes v. 

Sec. Invs. Prot. Corp., 503 U.S. 258, 268 (1992)).

For these reasons, the administrative judge permissibly 

declined to put much weight on either the decision to impose 
17

the communications protocol on Marcato or the decision to 

investigate her through DoD.

C

The third Carr factor considers whether the agency has 

taken “similar actions against employees who are not 

whistleblowers but who are otherwise similarly situated.” 185 

F.3d at 1323. 

The administrative judge reasonably found this factor to 

favor USAID. Its Table of Offenses and Penalties lists both

making a false statement and violating a security regulation as 

removable offenses. Moreover, a human-resources official for 

USAID OIG testified that several employees who had made

false statements were removed or resigned in lieu of removal, 

and the official did not recall that any of them were 

whistleblowers. Marcato presents examples of nonwhistleblowers who were not punished for misconduct, but 

none of them was similarly situated to her.

IV

After reasonably weighing the Carr factors, the 

administrative judge concluded that USAID met its burden to 

show, by clear and convincing evidence, that it would have 

fired Marcato regardless of her protected activity. Because 

substantial evidence supports the judge’s decision, we deny the 

petition for review.

So ordered.