UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

KATHRYN A. FLYNN,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

SF-1221-14-0620-W-1

DATE: January 6, 2017

THIS FINAL ORDER IS NONPRECEDENTIAL1

Kathryn A. Flynn, Claremont, California, pro se.

Michael L. Halperin, Esquire, Monterey, California, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

denied her request for corrective action in this individual right of action (IRA) 

appeal. Generally, we grant petitions such as this one only when: the initial 

decision contains erroneous findings of material fact; the initial decision is based 

on an erroneous interpretation of statute or regulation or the erroneous application 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

of the law to the facts of the case; the administrative judge’s rulings during either 

the course of the appeal or the initial decision were not consistent with required 

procedures or involved an abuse of discretion, and the resulting error affected the 

outcome of the case; or new and material evidence or legal argument is available 

that, despite the petitioner’s due diligence, was not available when the record 

closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. 

§ 1201.115). After fully considering the filings in this appeal, we conclude that 

the petitioner has not established any basis under section 1201.115 for granting 

the petition for review. Therefore, we DENY the petition for review and 

AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b). 

¶2 On October 29, 2007, the agency effected an “Excepted Appointment NTE

[Not to Exceed] 29-OCT-2009” of the appellant to an Associate Professor 

position at the agency’s Defense Language Institute and Foreign Language Center 

(DLIFLC). Initial Appeal File (IAF), Tab 7, Subtab D at 6-8. The agency 

extended the appointment several times for shorter NTE periods between 

October 2009 and October 2011, with a final extension issued on 

October 27, 2011, for a 2-year period ending on October 28, 2013. Id. at 1-5. 

On October 28, 2013, the agency effected the appellant’s termination upon the 

expiration of her NTE appointment. IAF, Tab 7, Subtabs C, E.

¶3 On appeal to the Board, the appellant alleged that the agency decided not to 

extend her appointment based on reprisal for whistleblowing. IAF, Tab 1 at 5. In 

particular, the appellant asserted that she disclosed to her supervisors and the 

Inspector General (IG) a gross waste of funds relating to a Government contract. 

IAF, Tab 33 at 10-19. The agency, by contrast, asserted that it became clear over 

time that the appellant’s conduct and performance was not up to the agency’s 

standards, not meeting management’s expectations, and impacting the agency’s 

mission. IAF, Tab 7 at 2, 4. The agency noted that it had issued the appellant a 

September 2012 letter of warning for using abusive language and an 
3

October 2012 letter of reprimand for repeatedly demonstrating unprofessional 

behavior by being insubordinate and discourteous and creating a disturbance in 

the workplace. Id. at 5. The agency also asserted that it had given the appellant a 

“Fair” rating on her October 1, 2011, through September 30, 2012 performance 

evaluation, including a “Needs Improvement” rating in the area of Interpersonal 

Relationships, and imposed a 2-day suspension in April 2013, for failure to 

follow instructions, defiance, and causing undue workplace disruption. Id. at 6.

¶4 After a hearing, the administrative judge denied the appellant’s request for 

corrective action. IAF, Tab 94, Initial Decision (ID) at 2, 24. The administrative 

judge found that the appellant exhausted her remedy with the Office of Special 

Counsel and reasonably believed that she made protected disclosures to her 

supervisors and the agency’s IG that a multi-year project costing over $1 million 

was being operated by a contractor in violation of an agency regulation and

without sufficient oversight to ensure that security clearances and other 

contractual specifications were being satisfied. ID at 13-16. The administrative 

judge also found that the disclosures were a contributing factor in the decision not 

to extend her appointment. ID at 16-17. 

¶5 Nevertheless, the administrative judge held that the agency proved by clear 

and convincing evidence that it would have taken the same personnel action 

absent the disclosures. ID at 17. The administrative judge noted that the agency 

had initiated disciplinary actions against the appellant, including a notice of 

warning, a letter of reprimand, and a 2-day suspension for behavioral issues, well 

before the date of her first protected disclosure. ID at 18. He found that these 

disciplinary actions were based on charges of unprofessional and/or inappropriate 

conduct, including the use of abusive language toward a colleague, 

inappropriately confrontational and disrespectful behavior that created a 

disturbance in the workplace, and initiating multiple emails that were defiant, 

unproductive, and burdensome to work operations. Id. The administrative judge

also found it significant that the recommending and acting officials were pursuing 
4

efforts to remove the appellant for behavioral issues nearly 1 month before she 

made her first protected disclosure, and that an assistant commandant credibly 

testified that the acting official raised his concerns with her about the appellant’s 

behavior but not her whistleblowing activities. ID at 18-19. The administrative 

judge noted that the record was replete with emails sent by the appellant that 

could be characterized as becoming more strident, sarcastic, and confrontational

over time, even though her supervisors had instructed her on several occasions to 

use a more respectful tone. ID at 19. Thus, the administrative judge held that the 

agency had a strong justification for its decision not to extend the appellant’s 

NTE appointment. ID at 19-21. Moreover, the administrative judge found that 

the agency officials had, at most, a moderate motive to retaliate against the 

appellant because the project about which she made her disclosures was broadly 

known by the agency to not be successful or cost effective and already in the 

process of being “w[ound] down” and moved in-house by the time the appellant 

made her first disclosure. ID at 21-22. The administrative judge noted that there 

was no evidence that the agency tried to undermine the appellant’s 

whistleblowing activities; in fact, the appellant’s supervisor had encouraged her 

to report her concerns to the IG. ID at 22. Finally, the administrative judge

found that there was no evidence suggesting that similarly situated 

nonwhistleblowers were treated more favorably. ID at 24.

¶6 The appellant asserts on review that the administrative judge incorrectly 

credited her with having only 6 years of Federal service instead of nearly 16 years 

of service, and that this increased length of service showed that the agency’s 

allegations of insubordination and disrespect were “highly suspect.” Petition for 
5

Review (PFR) File, Tab 1 at 5.

2

 She also contends that several agency officials 

wrote notes of excellence regarding her work in 2011 and otherwise praised her 

work in 2012, describing her as a valued employee and highly recommending her 

for promotion. Id. at 5-6. The appellant asserts that the agency’s actions toward 

her changed after she filed an equal employment opportunity (EEO) complaint 

based on alleged sexual harassment during an altercation at her cubicle with a 

coworker in September 2012. Id. at 6-7. 

¶7 The administrative judge did not find that the appellant had only 6 total 

years of Federal service, nor did he consider the appellant’s length of service in 

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

have taken the same action in the absence of her disclosures. ID at 17-24. 

Instead, the administrative judge simply noted that, as of the appellant’s initial 

NTE appointment on October 29, 2007, her Standard Form 50 indicated that her 

service computation date was October 29, 2007. ID at 2; see IAF, Tab 7 at 1721.

Thus, the appellant’s argument regarding her length of service demonstrates no 

error in the initial decision. Further, the administrative judge correctly held that, 

in determining whether the agency met its burden, the Board must consider all of 

the evidence presented, not just the evidence supporting the agency’s position. 

ID at 17; see Whitmore v. Department of Labor, 680 F.3d 1353, 

1368 (Fed. Cir. 2012). Consistent with Whitmore, the administrative judge

 

2

The appellant submitted an “updated” petition for review after submitting her original

petition for review. PFR File, Tab 2. This document includes a summary and changes 

to some of the headings and paragraph endings of the original petition for review, as 

well as additional phrases and sentences. Id. at 32. Compare, e.g., PFR File, Tab 1 at 

5, with PFR File, Tab 2 at 5-6. It does not, however, substantially differ in substance 

from the original petition for review.

The appellant also filed a supplement to her reply to the agency’s response to her 

petition for review. PFR File, Tab 7. Pleadings allowed on review include a petition 

for review, a cross petition for review, a response to a petition for review, a respon se to 

a cross petition for review, and a reply to a response to a petition for review. 5 C.F.R. 

§ 1201.114(a). The appellant did not file a motion for leave to submit this pleading. 

See 5 C.F.R. § 1201.114(a)(5). Thus, we have not considered the supplemental reply.
6

correctly considered the fact that, for most of her time at the DLIFLC, the 

appellant had an exemplary work record and regularly received outstanding 

performance reviews. ID at 3. To the extent that the appellant asserts that the 

agency’s failure to extend her appointment was based on reprisal for filing an 

EEO complaint, such a claim of a violation under 5 U.S.C. § 2302(b)(9)(A)(ii)

does not provide a basis for Board review in an IRA appeal. 5 U.S.C. § 1221(a); 

see Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7 (2013).

¶8 The appellant also contends that the administrative judge misapplied the 

factors set forth in Carr v. Social Security Administration, 185 F.3d 1318, 

1323 (Fed. Cir. 1999), for determining whether the agency showed by clear and 

convincing evidence that it would have taken the same personnel action in the 

absence of her whistleblowing. PFR File, Tab 1 at 7. The appellant asserts that 

her communications were direct, consistent, and detailed and did not evidence 

disrespect, obstruction, and insubordination. Id. She also contends that the 

emails the agency cited as reasons for terminating her employment transmitt ed

information on contract violations, a lack of deliverables already purchased, or 

security and contract violations, or requested specific information relating to 

contract line items required in the Work Performance Statement. Id. at 8. The 

appellant contends that her supervisors repeatedly asserted that they did not know 

what information was required, even though they were running the contracts. Id. 

¶9 We agree, however, with the administrative judge’s analysis of the Carr 

factors. See ID at 17-24. Although the appellant asserts that the emails in 

question were direct, consistent, and detailed, the administrative judge correctly 

found that they also could be characterized as “strident, sarcastic, and 

confrontational,” and that the negative tenor of the appellant’s emails increased 

over time despite instructions from her supervisors to use a more respectful tone. 

ID at 19-20; see, e.g., IAF, Tab 35 at 15-16, 57, Tab 36 at 5-6, 12, 37-39, 59 

at 567-69, 573-74, 581, 605-06, 659, 680-81. Many emails and behavior that may 

be characterized in a similar fashion predated the appellant’s first protected 
7

disclosure, which occurred in late May 2013. See, e.g., IAF, Tab 7, Report of 

Investigation at 160-61, 166, 171-72, 178-79, 183-84, 210-11, 213-14, 218-19, 

Tab 33 at 33-34, 39-40, Tab 34 at 79-80; ID at 8-9. The appellant has not shown 

that any lack of knowledge on the part of her supervisors as to what information 

was required regarding the contract justified the tone set forth in her emails. 

Moreover, as both the U.S. Court of Appeals for the Federal Circuit and the 

Board have held, whistleblowing activity does not shield an employee from 

discipline for wrongful or disruptive conduct. Marano v. Department of Justice, 

2 F.3d 1137, 1142 n.5 (Fed. Cir. 1993); Russell v. Department of Justice, 

76 M.S.P.R. 317, 325 (1997); ID at 20. 

¶10 In addition, the administrative judge found credible the testimony of the 

appellant’s supervisor that he recommended the nonrenewal of her appointment 

because of the way in which she conducted herself, not because of her efforts to 

ensure compliance with the contract requirements; this credibility determination

was based in part on the administrative judge’s observations of the supervisor’s 

demeanor. ID at 20, 22; see Haebe v. Department of Justice, 288 F.3d 1288, 1301 

(Fed. Cir. 2002) (finding that, the Board must defer to an administrative judge’s 

credibility determinations when they are based, explicitly or implicitly, on 

observing the demeanor of witnesses testifying at a hearing; the Board may 

overturn such determinations only when it has “sufficiently sound” reasons for 

doing so). The appellant has not established a basis for overturning this

credibility determination. As further found by the administrative judge, the 

agency disciplined the appellant long before she made her first protected 

disclosure, and the appellant’s supervisors were pursuing efforts to remove her

approximately 1 month before she made her first protected disclosure. ID at 

18-19; see IAF, Tab 37 at 5. Under these circumstances, we find that the 

appellant has shown no error in the administrative judge’s finding that the agency 

presented strong evidence supporting its determination not to extend her

appointment. ID at 20-21; see Rumsey v. Department of Justice, 120 M.S.P.R. 
8

259, ¶¶ 44-48 (2013) (finding the agency’s documented concerns regarding the 

appellant’s performance well before she made her protected disclosures 

strengthened the agency’s evidence in support of its action).

¶11 The appellant also contends that the agency’s rationale for the nonrenewal 

of her contract was a pretext for whistleblower reprisal because her supervisor 

indicated during an EEO investigation that he did not renew her appointment 

because her project ended and the mission changed, yet there was no reduction in 

work requirements and this reason differed from the reasons given by the 

supervisor during his testimony before the Board. PFR File, Tab 1 at 21-22. 

¶12 The appellant’s supervisor indicated during an EEO investigation that he 

recommended to the acting official that the appellant’s term appointment not be 

extended because the organization no longer needed her services under the 

“business rule,” and that she was assigned to a project that she did not complete. 

IAF, Tab 7 at 24, Report of Investigation at 1187-88. The acting official, 

however, indicated that he did not renew the appointment based on the 

supervisor’s recommendation, and that the supervisor suggested that the 

appointment should not be renewed “because of [the appellant’s] failure to meet 

expectations as evidenced by her disciplinary record, refusal to perform work and 

poor interpersonal relations.” Id. at 24, Report of Investigation at 1519, 1522. 

We find that the above descriptions regarding the reason the appellant’s 

supervisor recommended that her appointment not be renewed are not necessarily 

inconsistent with each other, and are consistent with the administrative judge’s 

finding that the supervisor testified at the hearing that his recommendation was 

based on the appellant’s behavioral issues. ID at 20. Thus, we discern no reason 

to disturb the administrative judge’s finding that the supervisor was credible.

¶13 The appellant further contends that the administrative judge improperly 

denied her the opportunity to conduct depositions and other discovery and to call 

certain witnesses, including her second- and third-level supervisors and IG 

employees. PFR File, Tab 1 at 22. She also asserts that the administrative judge
9

should have recused himself after her representative asserted that he had engaged 

in erratic, irrational, and biased conduct. Id. In addition, the appellant contends 

that the administrative judge refused to hold the hearing in a more neutral 

location, did not permit her to refer to notes or use a power point projector, asked 

her how much longer her testimony would continue, and permitted an agency 

witness to testify first. PFR File, Tab 1 at 23.

¶14 An administrative judge has broad discretion in ruling on discovery matters, 

and absent an abuse of discretion the Board will not find reversible error in such 

rulings. Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 16 (2016). Here, 

the administrative judge denied the appellant’s motion to compel depositions 

because she did not provide timely notice of the individuals she sought to depose 

along with the specific time and place of such depositions. IAF, Tab 50 at 2-3. 

The appellant has shown no abuse of discretion by the administrative judge in this 

regard. See 5 C.F.R. § 1201.73(a) (requiring requests for discovery to specify the 

time and place of the taking of depositions). Moreover, an administrative judge

has wide discretion to control the proceedings, including the authority to exclude 

testimony he believes would be irrelevant, immaterial, or unduly repetitious. 

Parker v. Department of Veterans Affairs, 122 M.S.P.R. 353, ¶ 21 (2015). The 

appellant has not shown the administrative judge abused his discretion in denying 

her request for certain witnesses or in otherwise controlling the hearing-related 

proceedings, particularly given that the appellant’s request for witnesses was 

untimely filed. IAF, Tab 82 at 2-3; 5 C.F.R. § 1201.43(c). In fact, the 

administrative judge provided an alternative basis for denying the requested 

witnesses based on the appellant’s proffers as to their testimony and approved 

several witnesses requested by the appellant, even though her request was 

untimely filed. IAF, Tab 82 at 3. Although the appellant contends that the 

administrative judge was biased against her, she has not shown that any 

comments or actions by the administrative judge evidenced a deep-seated 
10

favoritism or antagonism that would make fair judgment impossible. See Bieber 

v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002).

¶15 The appellant also asserts that the agency had more than a “moderate” 

reason for retaliation, as found by the administrative judge, because senior 

leaders and her supervisors were personally responsible for committing money to 

the contracts and misappropriation of funding, one such individual acknowledged 

a friendship with the contractor’s personnel, her supervisor wrote a contract 

modification that “dismiss[ed]” most substantive requirements, the contract was 

under criminal investigation and the supervisors were interviewed by the 

investigators, and the agency created a hostile work environment by excluding her 

from meetings, telephone calls and teleconferences, isolating her, denying her 

training, ignoring her requests for an end to the hostile environment, refusing to 

transfer her to a different division, and requiring her to spend a specific number 

of hours on each of her projects. PFR File, Tab 1 at 23-25. The appellant 

contends that the hostile work environment caused her to communicate more 

directly and assertively and challenge what she believed were fraudulent and 

abusive management practices regarding the contract. Id. at 25. The appellant 

also notes that the agency had a motive to retaliate because the contract involved 

the National Security Agency (NSA), which was under public scrutiny in 

connection with the Edward Snowden release of classified information, and one 

agency manager specifically noted with respect to the appellant’s communications 

that there was a need to avoid public scrutiny of the NSA. Id. at 26.

¶16 We agree with the administrative judge that agency officials had at most a 

moderate motive to retaliate against the appellant for her protected disclosures. 

ID at 21. The administrative judge noted that the agency had decided months 

before the appellant’s first disclosure that the project upon which she based her 

disclosures was neither successful nor cost effective and would be closed out 

based on budgeting and effectiveness issues. ID at 21-22. Moreover, as the 

administrative judge found, the appellant’s supervisor did not undermine her 
11

whistleblowing activities, but instead informed her that it was her right to request 

a formal security and contract review by an independent party if she believed 

there was some impropriety regarding the project. ID at 22; IAF, Tab 35 at 

34-35. The administrative judge also found that there was no apparent motive for 

agency officials to retaliate against the appellant, and that any criminal 

investigation relating to the contract was focused on a former DLIFLC official 

who had left the agency to work for the contractor, not on the project or contract 

itself or the recommending or acting officials in this case. ID at 23. The 

administrative judge concluded that, even assuming that there was some motive 

for the agency to retaliate against the appellant for her whistleblowing activities, 

the motive was at most moderate and the motive-to-retaliate factor weighed in 

favor of the agency. ID at 24. We find that the allegations set forth by the 

appellant on review, even if true, do not establish that the agency had more than a 

moderate motive to retaliate.

¶17 Finally, the administrative judge found that there was nothing in the record 

to suggest that similarly situated nonwhistleblowers were treated mo re favorably

than the appellant. ID at 24. Even if the absence of such evidence could be 

found to “cut slightly against the Government,” see Miller v. Department of 

Justice, No. 2015-3149, 2016 WL 7030359, at *8 (Fed. Cir. Dec. 2, 2016), we are 

nevertheless left with the firm belief that the agency would have taken the same 

action in the absence of the appellant’s protected disclosures based on the 

strength of the evidence in support of its action, including the evidence showing 

that the agency had taken steps to separate the appellant from employment before 

she made her first disclosure, and the absence of a sufficient motive to retaliate 

against her, see Mithen v. Department of Veterans Affairs, 122 M.S.P.R. 489, ¶ 36 

(2015) (holding that the Board does not view the Carr factors as discrete 

elements, each of which the agency must prove by clear and convincing evidence; 

rather, the Board will weigh the factors together to determine whether the 

evidence is clear and convincing as a whole), aff’d, 652 F. App’x 971 (Fed. Cir. 
12

2016); 5 C.F.R. § 1209.4(e) (defining “clear and convincing evidence” as that 

measure or degree of proof that produces in the mind of the trier of fact a firm 

belief as to the allegations sought to be established).

¶18 Accordingly, we deny the petition for review and affirm the initial decision.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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

U.S. 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 U.S. 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 U.S. 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 
13

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 U.S. Court of Appeals for the Federal Circuit is 

available at the court’s website, www.cafc.uscourts.gov. Of particular relevance 

is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained 

within the court’s Rules of Practice, and Forms 5, 6, and 11. Additional 

information about other courts of appeals can be found at their respective 

websites, which can be accessed through the link below: 

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

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

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

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

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

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.

______________________________

Jennifer Everling

Acting Clerk of the Board