# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 9, 2020 Decided August 24, 2021

No. 19

- 1041

R OBIN S. M ARCATO
, P ETITIONER

v.

U

NITED S TATES A GENCY FOR I NTERNATIONAL D EVELOPMENT
, R ESPONDENT

M ERIT S YSTEMS P ROTECTION B OARD
, I NTERVENOR

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 Di rector, 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 Co unsel, Merit Systems Protection Board, Katherine M. Smith

, Deputy General Counsel, and Stephen W. Fung , Attorney, were on the brief for2

intervenor Merit Systems Protection Board in support of respondent.

Before: G ARLAND
, * P ILLARD
, and K ATSAS
, Circuit Judges

.

Opinion f or the Court filed by Circuit Judge K ATSAS

.

K

ATSAS
, 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 p rotected 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 misconduc t in the absence of her protected disclosures. We conclude that substantial evidence supports this finding.

I

The Civil Service Reform Act permits f ederal employees

to appeal certain adverse personnel action s , including removal from office, to the MSPB. 5 U.S.C. §§ 751 2(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 th at th e penalty imposed was reasonable, Douglas v. Veterans Admin. , 5 M.S.P.R. 280, 29 9

– 30 0 (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 230 2 (b) prohibits any adverse personnel action “because of” an employee’s “disclosure of information” about

u nlawful 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 230 2 (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 w ere a “contributing factor in the personnel action.” Id. § 1221(e)(1). The employee may discharge that burden through
“circumstantial ev idence,” including evidence that an official
took the personnel action shortly after learning of the
disclosure

. Id. If the employee carries th is burden, the agency

can nonetheless prevail by showing “by clear and convincing
evidence that it would have t aken the same personnel action in
the absence of such disclosure.” I d. § 1221(e)(2). F actors that
the Federal Circuit has identified as pertinent to th is 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 sit uated.

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 be4

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

act ions 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 finding s supported by substantial evid ence.

A party aggrieved by a n MSPB decision may petition a court of appeals for review . 5 U.S.C. § 7703(a)(1). Until 2012,
th e Federal Circuit ha d exclusive jurisdiction over such petitions. See i d. § 7703( b )(1) (A). Since then, the regional
circuits h ave had concurrent jurisdiction over petitions challenging only the disposition of whistleblower

- retaliation
claims

. See i d. § 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. 20 04)

. The OIG i s 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 t o 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

Ins pector General Michael Carroll, Deputy Inspector General Catherine Trujillo, Chief of Staff Justin Brown, and Deputy Assistant Inspector General Lisa McClennon

. Beginning in5

2012, Marcato reported within the OIG that officials had
doctored various audits and reports sent to Congress

. In 2013,

Marcato repeated th ose allegations to S enate staffer s , prompting a critical letter from S enator Coburn and unfavorable media coverage in the Washington Post . In October 2014, Carroll withdrew his nomination to be the

Senate

- confirm ed Inspector General , and he retired from the

OIG a few months later.

While routinely reporting the misdeeds of others, M a rcato engaged in concerning conduct herself

. In Decemb er 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 e mployer and one of USAID’s largest grant recipient s . 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 identif ied the sub ject of the investigation, the name of a suspect, and the name of a cooperating witness, and she stat ed that the OIG was considering a subpoena for IRD files. No O IG employee
reviewed the e

- mail beforehand or learned of it until a year
later.

Marcato bec ame increasingly preoccupied with the IRD probe . S he 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 develop ed a protocol re quiring Marcato to go through Ross if she wanted to speak to Giacalone or enter
the I nvestigations work space

. In February 2015, Ross and Trujillo met with Marcato to explain the protocol . Marcato
recorded the meeting on her cell phone , despite a USAID

se curity policy barring the unauthorized use , in restricted workspace

, of any device that can transmit audio or video

.

T he protocol failed to dampen Marcato’s efforts to participate in the IRD investigation

. Over the next month,

Marcato e

- mail ed 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 agai n instructed her to follow the protocol. Yet M a rcato 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 s peak over the top of a wal l dividing the respective work space 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 rep rimand 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. A round this time, Trujillo learned that Marcato had recorded their February 2015 meeting

. According to Trujillo, n ewly confirmed I nspector
G eneral Ann Calvaresi Barr de cided to investigate Marcato’s conduct, including her e

- mail disclosure, cell phone recording,
and failure to follow the communications protocol. T o avoid any conflicts of interest, Calvaresi Barr a rranged for the OIG7

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 “self

identified as a whistleblower” and had recently made disclosures to Congress of alleged misconduct by high

- ranking

USAID official s

. J.A. 62. Trujillo requested DoD’s help to ensure that the allegations against Marcato were “appropriately investigated.” Id.

The ensuing inv estigation c onsumed 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 p laced on a table

. Marcato made similar statements to the USAID security office. Ross and Trujillo both denied that Marcato told them she wou ld
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 th e 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 the se 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 an y official investigation or inquiry strikes at the heart o f the employee

employer 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 th e MSPB. A fter a four

day evidentiary hearing, a n a dministrative j udge sustained the
decision

. He concluded that Marcato committed the charged
conduct

, that her removal promote d 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

remov e 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 di sposition of whistleblower

- retaliation allegations raised either as stand

- alone claim s under the
Whistleblower Protection Act or as affirmative defense s under
the CSRA. See Baca v. Dep’t of the Army , 983 F.3d 1131, 1137 (10th Cir. 2020) (noting that § 770 3(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)

. W e review for substantial evidence the administrative judge’s
determination that USAID met its clear

- and

- convincing
burden

. S ee 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 reason able 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 a dministrative j udge

.

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 th e 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 disclo sures could have compromised the investigation . Marcato’s only response is
that G ia calone asked her to send an e

- mail to Greensides

. But
Giacalone asked Marcato only to vouch for her to Greensides10

as a trustworthy investigator ; Giacalone specifically den ied authorizing Marcato to disclose the details of the investigation.
The a dministrative j udge 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 “devic es 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
adv ance 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

a dministrative j udge

.

Third

, the false

- statement s charge was amply supported. While under oath, Marcato told D o D 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 a fter Trujillo and Ross testified to the contrary, Marcato claimed not to “rememb er the details of the meeting

. ” J.A. 619 . A nd 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

a dministrative j udge found the testimon y of Trujillo and Ross11

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 p rivate material gain

. Marcato forfeited that argument by not raising it u ntil 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 discipli ne 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

a dministrative j udge that he disagreed with the protocol and did

not think that Marcato needed to follow it

. But Ross n ever suggested to Marcato that the protocol was optional . Rather, in the February 2015 meeting, Ross and Trujillo instructed Marcato to follow the protocol, and Ros s’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.”); i d. at 88 (Aug. 25) (same); i d. at 85 (Sept. 22) (“I am directing you not to enter the Office of In vestigations space unless authorized by me.”). A nd as the ju dge 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 who12

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 influenc ed the decision.”
Whitmore v. DOL , 680 F.3d 1353, 137 1 (Fed. Cir. 2012) (quoting McCarthy v. Int’l Boundary & Water Comm. , 116 M.S.P.R. 594, 613 (2011)).

1

Marcato contends that the a dministrative j udge improperly required her to prove th e second Carr fa ctor. 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 j udge 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 an d 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 eviden ce 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 conclus ion: “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 Pro tection 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

ter mination 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

– 2 2 . 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 support ed 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 ca se 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 c harges 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 convincing14

evidence that it would have fired Marcato regardless of her
disclosures

.

2

The a dministrative j udge 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 influenc ed 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 M arcato with Jason Carroll. Brown
h ad no connection to Marcato beyond forward ing the D o D report to Scott and Jason Carroll , and h e testified that he never
discussed the substance of it with them. Scott and Jason Carroll
corroborated the testimon y of Truji llo, McClennon, and Brown on all of these points.

Marcato primarily contends that USAID initiated the DoD investigation because of her protected activity

. That assertion15

has several problems. First, Marcato’s own misconduct

— disclosing obviously sensiti ve 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, who m 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, who m 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 cha rges , 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 retalia tory 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. § 230 2 (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 advers e 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

– 2 1 . So , for example, an employer may be liable if one of its employees, for prohibited reasons, successfully persuades16

a n eutral 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 permissi on 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, t he protocol was temporally and causally remote from t he 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

u nauthorized 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 Ho lmes v. S

ec. Invs. Prot. Corp. , 503 U.S. 2 5 8 , 2 68 (1992) )

.

For these reasons, the administrative judge permissibly declined to put much weight on either the decision to impose17

the communications protocol on Marcato or the decision to investigate her through DoD.

C

The third Carr factor consider s whether the agenc y 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 th em were whistleblowers. Marcato presents examples of non

whistleblowers who were not punished for misconduct, but
none of them w as similarly situated to her

.

IV

After reasonably weighing the Carr factors , the
administ rative 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, w e deny the petition for review.

So ordered.