UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

KELLY THEONNES,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

DA-1221-17-0035-W-1

DATE: January 26, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Isaac P. Hernandez, Esquire, Phoenix, Arizona, for the appellant.

Sean Andrew Safdi, Lakewood, Colorado, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

cross petition for review of the initial decision, which granted in part the 

appellant’s request for corrective action in this individual right of action (IRA) 

appeal. Generally, we grant petitions such as this one only in the following 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

circumstances: 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 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). For the reasons 

discussed below, we DENY the agency’s petition for review and GRANT the 

appellant’s cross petition for review. Except as expressly MODIFIED by this 

Final Order to clarify the basis for denying corrective action in connection with 

the appellant’s allegations of hostile work environment and to grant corrective 

action in connection with her 14-day suspension, we AFFIRM the initial decision. 

BACKGROUND

¶2 The appellant is employed as a GS-11 Licensed Marriage and Family 

Therapist with the agency’s Readjustment Counseling Service (RCS) in El Paso, 

Texas. Initial Appeal File (IAF), Tab 1 at 8. On April 25, 2016, she sought 

corrective action from the Office of Special Counsel (OSC) alleging that, in 

retaliation for her disclosures of wrongdoing by her supervisor, disclosures 

regarding poor patient care and services to a Member of Congress, supporting a 

coworker’s equal employment opportunity (EEO) case, and filing an EEO and an 

OSC complaint, the agency counseled her, proposed to suspend her for 7 days, 

issued her a letter of admonishment, suspended her for 14 days, rated her overall 

performance as “fully successful,” rather than “outstanding,” for fiscal years (FY) 

2013 through 2015, denied her an increase in salary, disrupted the timely payment 

of her salary, and subjected her to a hostile work environment from 2013 through 

2016. Id. at 19-23. On August 17, 2016, OSC informed the appellant it had 
3

terminated its inquiry into her allegations and notified her of her right to seek 

corrective action from the Board. Id. at 81-82. 

¶3 The appellant timely filed the instant IRA appeal and requested a hearing. 

IAF, Tab 1. In an order and summary of a telephonic status conference, the 

administrative judge found that the appellant established jurisdiction over her 

IRA appeal by showing that she exhausted her administrative remedy with OSC 

and by nonfrivolously alleging that she made at least one protected disclosure that 

was a contributing factor in a personnel action. IAF, Tab 11 at 1-3. After 

holding a hearing, the administrative judge issued an initial decision granting the 

appellant’s request for corrective action over her FY 2014 and FY 2015 

performance appraisals but denying corrective action regarding the other alleged 

personnel actions. IAF, Tab 41, Initial Decision (ID).

¶4 The agency has filed a petition for review of the initial decision, and the 

appellant has responded. Petition for Review (PFR) File, Tabs 1, 8. The 

appellant has filed a cross petition for review of the initial decision, and the 

agency has responded. PFR File, Tabs 7, 10.

ANALYSIS2

¶5 Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), 3

the Board has jurisdiction over an IRA appeal if the appellant has exhausted her 

administrative remedies before OSC and makes nonfrivolous allegations of the 

following: (1) she made a disclosure described under 5 U.S.C. § 2302(b)(8) or 

engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), 

(C), or (D); and (2) the protected disclosure or activity was a contributing factor 

in the agency’s decision to take or fail to take a personnel action as defined by 

 2 We have reviewed the relevant legislation enacted during the pendency of this appeal 

and have concluded that it does not affect the outcome of the appeal. 

3 The relevant events occurred after the December 27, 2012 effective date of the WPEA. 

Pub. L. No. 112-199, § 202, 126 Stat. 1465, 1476. Therefore, we have applied the 

WPEA to this appeal. 
4

5 U.S.C. § 2302(a). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5 

(2016). Once an appellant establishes jurisdiction over her IRA appeal, she is 

entitled to a hearing on the merits of her claim, which she must prove by 

preponderant evidence. Id. If the appellant proves that a protected disclosure or 

activity was a contributing factor in a personnel action taken against her, the 

agency is given an opportunity to demonstrate, by clear and convincing evidence, 

that it would have taken the same personnel action in the absence of the protected 

disclosure or activity. 5 U.S.C. § 1221(e); Salerno, 123 M.S.P.R. 230, ¶ 5.

¶6 In the initial decision, the administrative judge found that the appellant 

established jurisdiction over her IRA appeal by exhausting her administrative 

remedies and by making the requisite nonfrivolous allegations. ID at 5. He 

further found that she proved by preponderant evidence that all of her exhausted 

disclosures and activities were protected and that the agency subjected her to 

covered personnel actions when it proposed to suspend her for 7 days, issued her 

a letter of admonishment, suspended her for 14 days, rated her as “fully 

successful” rather than “outstanding” in three performance appraisals, and denied 

her a step increase. 4

 ID at 6-18. He found, however, that the appellant failed to 

establish that her written counseling, alleged salary disruption, and hostile work 

environment claim were covered personnel actions. ID at 14-15, 18-22. The 

administrative judge further found that the appellant proved that her protected 

 4 Specifically, the administrative judge found that the following disclosures and 

activities by the appellant were protected: (1) reporting in 2013 that an electronic 

management system lost patient information; (2) reporting to the agency’s Inspector 

General and agency leaders in January 2013 that her supervisor engaged in 

inappropriate financial transactions with patients; (3) reporting to her managers in 

January or February 2013 that her supervisor was attempting to bribe other employee 

witnesses in an EEO matter; (4) providing testimony in January 2013 supporting a 

coworker’s EEO complaint; (5) filing an EEO complaint in April 2015 seeking to 

remedy whistleblower reprisal and providing testimony supporting it in October and 

December 2015; (6) making multiple complaints to various members in her chain of 

command from 2013 through the present regarding the hostile work environment 

created by her supervisor; and (7) filing an OSC complaint alleging misconduct and 

retaliation by her supervisor that was closed in July 2013. ID at 6-13. 
5

disclosures and activities were a contributing factor in the covered personnel 

actions by virtue of the knowledge/timing test. ID at 22-24. He concluded, 

however, that the agency established by clear and convincing evidence that, 

except for the FY 2014 and FY 2015 performance appraisals, it would have taken 

the personnel actions in the absence of the appellant’s protected disclosures and 

activities. ID at 24-49. Accordingly, as noted above, the administrative judge 

granted corrective action only for the FY 2014 and FY 2015 performance 

appraisals. ID at 48. 

¶7 On review, the appellant argues that the administrative judge erred in 

finding that her hostile work environment claim did not constitute a covered 

personnel action and that the agency established by clear and convincing evidence 

that it would have suspended her for 14 days absent her protected activity and 

disclosures. PFR File, Tab 7 at 5-15. The agency argues that the administrative 

judge erred in finding that it did not meet its burden to show by clear and 

convincing evidence that it would have rated the appellant “fully successful” in 

FY 2014 and FY 2015 in the absence of her protected activity and disclosures. 5

 

PFR File, Tab 1 at 5-10. 

 5 On review, the agency maintains its position that the appellant’s EEO complaint 

did not constitute protected activity but acknowledges that she engaged in other 

protected activities and disclosures. PFR File, Tab 1 at 4 n.1. As noted in the initial 

decision, the appellant’s EEO complaint alleged that she was being subjected to a 

hostile work environment, in part, in reprisal for her disclosures that her supervisor 

tried to bribe someone and had business transactions with patients. ID at 11; IAF, 

Tab 9 at 25-26; Tab 25 at 11-12, 14, 31, 96, 162-63, 173-76, 263. We agree with the 

administrative judge that the appellant’s EEO complaint constituted protected activity 

under section 2302(b)(9)(A)(i). See Bishop v. Department of Agriculture, 2022 MSPB 

28, ¶¶ 15-16 (explaining that protected activity under section 2302(b)(9)(A)(i) includes 

filing an EEO complaint that seeks to remedy reprisal for disclosing information that an 

employee reasonably believes evidences a violation of law, rule, or regulation). The 

parties have not challenged the administrative judge’s findings that the appellant proved 

that her other disclosures and activities were protected and that the agency subjected 

her to covered personnel actions when it proposed her suspension, admonished her, 

suspended her for 14 days, rated her as “fully successful,” and denied her a step 

increase. PFR File, Tabs 1, 7-8, 10. In addition, the parties have not challenged the 

administrative judge’s finding that the appellant failed to establish that the written 
6

The appellant failed to establish that her allegations of hostile work environment 

amount to a covered personnel action. 

¶8 Under both the WPEA and its predecessor, the Whistleblower Protection 

Act (WPA), a “personnel action” is defined to include, among other enumerated 

actions, “any other significant change in duties, responsibilities, or working 

conditions[.]” 5 U.S.C. § 2302(a)(2)(A)(xii). The legislative history of the 1994 

amendment that added this provision to the WPA indicates that “any other 

significant change in duties, responsibilities, or working conditions” should be 

interpreted broadly, to include “any harassment or discrimination that could have 

a chilling effect on whistleblowing or otherwise undermine the merit system, and 

should be determined on a case-by-case basis.” 140 Cong. Rec. H11,419, 

H11,421 (daily ed. Oct. 7, 1994) (statement of Rep. McCloskey), cited in 

Skarada v. Department of Veterans Affairs, 2022 MSPB 17, ¶ 14;see Savage v.

Department of the Army, 122 M.S.P.R. 612, ¶ 23 (2015) (remanding an appeal so 

that an administrative judge could address an appellant’s claim that the agency 

subjected her to a hostile work environment under section 2302(a)(2)(A)(xii)). In 

Savage, the Board stated that a hostile work environment itself may constitute a 

covered personnel action under the WPA. Savage, 122 M.S.P.R. 612, ¶ 23. 

Subsequently, however, the Board clarified in Skarada that, although the term 

“hostile work environment” has a particular meaning in other contexts, 

allegations of a hostile work environment may establish a personnel action in an 

 

counseling and salary disruption do not constitute personnel actions under the WPEA. 

Id. The parties further have not challenged the administrative judge’s determination 

that the agency proved by clear and convincing evidence that it would have taken the 

following actions against the appellant even absent her protected disclosures and 

activities: proposed to suspend her for 7 days, issued her a letter of admonishment, 

rated her overall performance as fully successful in her FY 2013 performance appraisal, 

and denied her a step increase. Id. We have reviewed the record, and discern no basis 

to disturb these well-reasoned findings. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 

98, 105-06 (1997) (finding no reason to disturb the administrative judge’s findings 

when she considered the evidence as a whole, drew appropriate inferences, and made 

reasoned conclusions on issues of credibility). 
7

IRA appeal only if they meet the statutory criteria, i.e., constitute a significant 

change in duties, responsibilities, or working conditions. Skarada, 2022 MSPB 

17, ¶ 16 (citing 5 U.S.C. § 2302(a)(2)(A)). Thus, only agency actions that, 

individually or collectively, have practical and significant effects on the overall 

nature and quality of an employee’s working conditions, duties, or 

responsibilities will be found to constitute a personnel action covered by 

section 2302(a)(2)(A)(xii). Id. 

¶9 In the initial decision, the administrative judge, who did not then have the 

benefit of the Board’s decision in Skarada, relied, in part, on case law relevant to 

establishing a hostile work environment under Title VII of the Civil Rights Act of 

1964. ID at 19-22 (citing, among other cases, Faragher v. City of Boca Raton,

524 U.S. 775, 787-88 (1998); Gregory v. Department of the Army, 114 M.S.P.R. 

607, ¶¶ 25, 31 (2010)). In light of Skarada, however, reliance on Title VII 

standards to determine whether agency actions amount to a personnel action that 

may be the subject of an IRA appeal is incorrect. See Skarada, 2022 MSPB 17, 

¶ 16. Accordingly, we modify the administrative judge’s analysis of the 

appellant’s hostile work environment claim consistent with this section, still 

concluding that the appellant failed to establish that the agency subjected her to a 

significant change in duties, responsibilities, or working conditions within the 

meaning of section 2302(a)(2)(A)(xii). 

¶10 The appellant alleged below that, in retaliation for her protected activity 

and disclosures, the agency harassed her and subjected her to a hostile work 

environment, which involved “increased scrutiny, harsher discipline, and 

generally less favorable working conditions than similarly situated employees.” 

IAF, Tab 22 at 4-7. At the hearing, she testified that in December 2013 her 

supervisor moved her and her coworker, a Program Specialist, to an unsafe and 

uncomfortable office space away from their colleagues and that the move was 

supposed to be temporary but lasted for 3 years. IAF, Tab 38, Hearing Compact 

Disc (HCD) (testimony of the appellant). In her closing brief, the appellant 
8

generally stated that the agency subjected her to a hostile work environment and 

that her office relocation changed the terms and conditions of her employment. 

IAF, Tab 39 at 4-5, 25-26. The record also contains reports from two fact-finding 

investigations, the appellant’s EEO complaint and an amendment, and a transcript 

of her interview with the EEO investigator, which set forth numerous specific 

incidents that she alleged contributed to the hostile work environment. 6

 IAF,

Tab 18 at 36-37, 46; Tab 19 at 16-129; Tab 25 at 90-109, 154-267; Tab 27 at 140. 

¶11 In the initial decision, the administrative judge, relying mainly on 

allegations from the appellant’s EEO matter, summarized the allegations in 

support of her hostile work environment claim as follows: the agency moved her 

and the Program Specialist to new offices in an isolated area that experienced 

wide variations of temperature and leaks and required her to be alone when 

meeting with clients, which made her feel unsafe; supervisors were rude to her, 

yelled at her, accused her of writing emails that bordered on being disrespectful, 

and counseled her for sending an unprofessional and a disrespectful text; the 

agency failed to communicate with her or explain its reasoning for decisions; the 

agency changed or restricted her duties without explanation, including telling her 

not to see clients on a weekly basis, relieving her of her duties as back-up 

timekeeper, requiring her to adhere to a different standard concerning 

 6 In her April 6, 2015 formal EEO complaint, the appellant alleged that the agency 

retaliated against her when it admonished her on January 29, 2015, and when it 

subjected her to harassment and a hostile work environment based on 34 separate 

incidents occurring between January 2013 and March 2015. IAF, Tab 25 at 90-109. By 

notice dated May 22, 2015, the agency’s Office of Resolution Management (ORM) 

notified her that it had accepted the admonishment and hostile work environment claim 

based on 22 events for investigation. Id. at 119-22. On October 7, 2015, the appellant 

amended her hostile work environment claim to include an additional four events 

occurring in September and October 2015. IAF, Tab 27 at 140. ORM accepted the 

additional events for investigation. Id. at 134-35. After completing the investigative 

report and supplemental investigative report, IAF, Tabs 25-27, the appellant requested a 

final agency decision, IAF, Tab 9 at 58. In a June 9, 2016 final agency decision, the 

agency’s Office of Employment Discrimination Complaint Adjudication determined 

that the appellant failed to prove any of her claims. Id. at 35-57. 
9

participation in outreach, and preventing her from serving on a professional 

standards board; and the agency delayed approving her requests for compensatory 

time and leave under the Family and Medical Leave Act of 1993 (FMLA). ID 

at 19-22. The administrative judge found, however, that the appellant’s FMLA 

request was actually approved less than 2 weeks after her initial request. ID 

at 21. He further found that, although the appellant described a work 

environment in which she allegedly was yelled at or humiliated, she proffered 

little, if any, testimony or affidavits from coworkers who witnessed this hostile 

behavior. ID at 20-21. In sum, the administrative judge concluded that the 

agency actions alleged by the appellant were discrete, unrelated events and that, 

even when considered collectively, were not so severe that a reasonable person 

would believe they created an impermissible alteration in the terms and 

conditions of her employment. ID at 22. 

¶12 On review, the appellant does not challenge the administrative judge’s 

findings regarding most of the incidents that gave rise to her harassment claim. 

PFR File, Tab 7. We decline to disturb these well-reasoned findings, except to 

modify them to find that the appellant failed to prove they amounted to a 

significant change to her duties, responsibilities, or working conditions. Skarada, 

2022 MSPB 17, ¶ 16. The appellant argues, however, that the administrative 

judge failed to properly weigh the evidence and erred in finding that her 

allegations concerning a hostile work environment did not constitute a covered 

personnel action. PFR File, Tab 7 at 5-7. Specifically, she reiterates her 

contention that her relocation to an office away from the rest of the team for 

3 years constituted a significant change to her working conditions, threatened her 

safety, and interfered with her ability to perform her duties. Id. She suggests that 

this relocation alone was a significant change in her working conditions. 7

 Id. 

 7 In support of this argument, the appellant states that the Board has held that a 

GS-15 employee’s reassignment to a GS-5 work cubicle constituted a personnel action. 

PFR File, Tab 7 at 7 (citing Coons v. Department of the Treasury, 85 M.S.P.R. 631, 
10

at 7. In response, the agency argues that the appellant’s office move was 

voluntary and that she did not request to be moved back until June 2016 when she 

found the temperature of the office unacceptable. 8

 PFR File, Tab 10 at 6-7. The 

agency further argues that the administrative judge’s evaluation of the factual 

dispute over the voluntariness of the appellant’s office relocation was a 

credibility determination that is entitled to significant deference. Id. at 8-9. 

¶13 Contrary to the agency’s argument on review, the administrative judge 

did not make any credibility findings in assessing the appellant’s claim that the 

agency subjected her to a significant change in working conditions and did not 

make a specific finding that the appellant’s office relocation was voluntary. ID 

 

¶ 19 (2000), overruled on other grounds by Arauz v. Department of Justice, 

89 M.S.P.R. 529, ¶ 7 n.1 (2001)). The appellant’s description of the holding in Coons, 

however, is incomplete. In Coons, the Board found that the appellant nonfrivolously 

alleged he suffered a personnel action when he was reassigned to a different job site 

and placed in a position with “no meaningful duties, no telephone, no support staff, no 

title, no position description, no management, no expectations and no performance 

plan.” 85 M.S.P.R. 631, ¶¶ 2, 19. Because the appellant has not alleged that her office 

relocation involved any change to her position description or duties, we find that Coons 

is distinguishable from the instant appeal. 

8 The agency also argues on review that the appellant failed to exhaust her office 

relocation claim before OSC. PFR File, Tab 10 at 5. The Board has recently clarified 

the substantive requirements of exhaustion. Chambers v. Department of Homeland 

Security, 2022 MSPB 8, ¶¶ 10-11. The requirements are met when an appellant has 

provided OSC with sufficient basis to pursue an investigation. The Board’s jurisdiction 

is limited to those issues that have been previously raised with OSC. However, an 

appellant may give a more detailed account of her whistleblowing activities before the 

Board than she did to OSC. An appellant may demonstrate exhaustion through her 

initial OSC complaint, evidence that she amended the original complaint, including but

not limited to OSC’s determination letter and other letters from OSC referencing any 

amended allegations, and her written responses to OSC referencing the amended 

allegations. She may also establish exhaustion through other sufficiently reliable 

evidence, such as an affidavit or a declaration attesting that she raised with OSC the 

substance of the facts in the Board appeal. Id. Here, in her OSC submissions, the 

appellant alleged that, beginning in 2013, the agency subjected her to a hostile work 

environment, harassed her, and significantly changed her work environment by 

subjecting her to “an unsafe and unhealthy work environment and iso[lating her] from 

participation of [agency] events.” IAF, Tab 8 at 32, 75-78, 81, 83. We find that the 

appellant’s allegations to OSC were enough to provide OSC with a sufficient basis to 

investigate the appellant’s office relocation. 
11

at 21-22. Rather, the administrative judge found that the incidents asserted by the 

appellant in support of her hostile work environment claim, including the office 

relocation, simply did not amount to a significant change in her working 

conditions. Id. Therefore, we find no merit to the agency’s argument that the 

administrative judge made a credibility-based determination regarding the 

appellant’s hostile work environment claim that is entitled to significant 

deference. 

¶14 Nonetheless, even if the agency instructed the appellant to move to the new 

office or denied her request to return to the main office, she has not shown that 

the agency subjected her to a significant change in her working conditions by 

relocating her office. Despite her contention that her office frequently 

experienced temperature and water issues, her supervisor testified that he only 

received one complaint from the appellant regarding leaking in July 2015 and 

several complaints regarding temperature issues in September 2016. HCD 

(testimony of the appellant’s supervisor). In addition, he testified that he 

promptly took action to remedy the situation by, for example, offering to have her 

temporarily relocate offices and having the air conditioning unit replaced. Id.; 

IAF, Tab 24 at 81. Consistent with the appellant’s supervisor’s testimony, the 

record contains only one email from the appellant complaining of leaks in 

July 2015 and three emails regarding temperature issues from September 2016.9

 

IAF, Tab 24 at 62, 73, 79-81. In addition, the appellant returned to the main 

office building shortly after complaining about the leaks in September 2016. 

HCD (testimony of the appellant); IAF, Tab 24 at 144. We find that occasional 

temperature discomfort and one instance of water leaking from the ceiling over 

the course of 3 years did not have practical and significant effects on the overall 

 9 The record also contains complaints regarding the office temperatures in 

January 2013. IAF, Tab 19 at 12, 120, Tab 24 at 119, Tab 25 at 107-08, 278-79. 

However, these complaints occurred before the appellant relocated. 
12

nature and quality of the appellant’s working conditions. See Skarada, 

2022 MSPB 17, ¶¶ 15, 23. 

¶15 The appellant also alleged that her relocated office was far away from the 

main office, which allowed the agency to exclude her from information and 

communication, isolated her from the rest of the staff, and placed her at risk when 

she had to meet with clients alone. HCD (testimony of the appellant). Although 

it is clear from the record that the appellant’s office was separate from the main 

office suite and her coworkers, except the Program Specialist, she has not 

provided specific information or evidence concerning the distance between the 

two places, nor has she identified any particular office information or knowledge 

that she did not receive due to the physical separation of her office. She testified 

that, due to the distance between her office and the main office, the office staff 

did not tell her when her clients arrived. Id. However, she has not explained how 

the unavailability of office staff to alert her to her clients’ arrival constituted a 

significant change to her working conditions, rather than a minor inconvenience. 

Thus, the appellant has not shown that her physical separation from the main 

office and most of her coworkers constituted a significant change to her working 

conditions. See Skarada, 2022 MSPB 17, ¶ 23 (stating that at the merits phase of 

an IRA appeal, the appellant must provide sufficient information and evidence to 

allow the Board to determine whether the agency’s alleged action or actions were 

“significant”); Shivaee v. Department of the Navy, 74 M.S.P.R. 383, 388-89 

(1997) (finding that an employee failed to nonfrivolously allege that his 

relocation from a building on the naval base to a building located outside of the 

base constituted a personnel action because he failed to allege sufficient 

information for the Board to determine whether his move was “significant,” such 

as whether other employees in his position worked outside the base and whether it 

was common for such employees to be moved from inside the base to outside and 

vice versa). 
13

¶16 In support her claim that her office location presented a safety risk, the 

appellant referred to an undated and unsigned narrative assessment, which states 

the following: 

The Vet Center does have a lovely Marriage and Family Office, 

however, its location is of some concern due to safety issues. This 

office is not connected to the Vet Center and therefore, when the 

[appellant] is meeting with families/couples/individuals there is no 

way to assure her safety. 10 

IAF, Tab 24 at 223. Although this report opines that the appellant’s office 

location may have presented “some concern” over safety, the appellant did not 

present evidence establishing that her office was actually unsafe or that she feared 

for her safety. In response to a question on cross examination at the hearing 

regarding whether she liked her office location, she testified that it was a 

“double-edged sword” because she liked having more space but that management 

used her office location as an excuse to exclude her and not to tell her when her 

clients arrived. HCD (testimony of the appellant). She did not, however, 

mention safety concerns in response to this line of questioning. Id. 

¶17 At another point during the hearing, the appellant testified that, on one 

occasion, a veteran came into her office unannounced when she was alone and 

that she felt threatened. Id. Although such occurrence is startling, it does not 

establish that her office’s location presented an undue safety risk. In any event, 

the appellant did not testify that she ever experienced a dangerous situation or 

that her office was too far removed to call for help in the event of an emergency. 

Id. Moreover, she testified that she could have met with clients in a different 

location if she ever felt it was appropriate and that she relocated to the main 

office area within several months after the report suggesting “some concern” 

about safety. Id. Thus, we find that her general allegation about safety based on 

 10 The appellant attributes this narrative assessment to a July or August 2016 Site 

Analysis by an RCS manager. IAF, Tab 22 at 6, Tab 39 at 10. 
14

her office’s location does not constitute a significant change in her 

working conditions. 

¶18 In light of the foregoing, we find that the conditions alleged by the 

appellant, collectively and individually, do not establish a significant change in 

her working conditions. Therefore, we affirm, as modified to clarify the 

applicable legal analysis and to supplement the factual findings, supra ¶¶ 14-17, 

the administrative judge’s determination that the appellant’s allegations regarding 

hostile work environment do not establish a covered personnel action.

The agency failed to show by clear and convincing evidence that it would have 

suspended the appellant for 14 days or given her “fully successful” summary 

performances ratings in FY 2014 and FY 2015 absent her protected activity 

and disclosures. 

¶19 Because the appellant met her burden to prove by preponderant evidence 

that she made a protected disclosure and engaged in protected activity that was a 

contributing factor in the agency’s decision to take personnel actions against her, 

we will order corrective action unless the agency shows by clear and convincing 

evidence that it would have taken the personnel action in the absence of the 

whistleblowing. 11 Supra ¶ 5. In determining whether an agency has shown by 

clear and convincing evidence that it would have taken the personnel action in the 

absence of the whistleblowing, the Board generally will consider the following 

factors (“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. Soto v. Department of Veterans Affairs, 

2022 MSPB 6, ¶ 11; see Carr v. Social Security Administration, 185 F.3d 1318, 

 11 Clear and convincing evidence is 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. 

5 C.F.R. § 1209.4(e). 
15

1323 (Fed. Cir. 1999). 12 The Board does not view these factors as discrete 

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

but rather weighs these factors together to determine whether the evidence is 

clear and convincing as a whole. Alarid v. Department of the Army, 122 M.S.P.R.

600, ¶ 14 (2015). The Board must consider all the pertinent evidence, including 

evidence that detracts from the conclusion that the agency met its burden. Alarid, 

122 M.S.P.R. 600, ¶ 14; see also Whitmore v. Department of Labor, 680 F.3d 

1353, 1368 (Fed. Cir. 2012). 

¶20 In the initial decision, the administrative judge found that the agency 

proved by clear and convincing evidence that it would have taken the following 

personnel actions against the appellant even absent her protected activities and 

disclosures: proposal to suspend her in 2013; denial of a salary increase in 

June 2013; rating her overall performance as “fully successful” in FY 2013; 

issuing her a January 29, 2015 admonishment; and imposing a 14-day suspension 

based on misrepresentation in 2016. ID at 25-44, 48-49. He concluded, however, 

that the agency failed to show by clear and convincing evidence that it would 

have rated the appellant as “fully successful” in FY 2014 and FY 2015 absent her 

protected activities and disclosures. ID at 45-48. On review, the appellant 

challenges the administrative judge’s finding regarding the 14-day suspension, 

and the agency challenges his finding regarding the FY 2014 and FY 2015 

performance appraisals. 13 PFR File, Tab 1 at 5-10, Tab 7 at 5-15. 

 12 Historically, the Board has been bound by the precedent of the U.S. Court of Appeals 

for the Federal Circuit on this issue. However, as a result of changes initiated by the 

WPEA, Pub. L. No. 112-199, 126 Stat. 1465, extended for 3 years in the All Circuit 

Review Extension Act, Pub. L. No. 113-70, 128 Stat. 1894, and eventually made 

permanent in the All Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510, 

appellants may file petitions for judicial review of Board decisions in whistleblower 

reprisal cases with any circuit court of appeals of competent jurisdiction. See 5 U.S.C. 

§ 7703(b)(1)(B). 

13 The parties do not challenge, and we discern no basis to disturb, the administrative 

judge’s finding that the agency established by clear and convincing evidence that it 
16

¶21 For the reasons that follow, we find that the agency failed to establish by 

clear and convincing evidence that it would have suspended the appellant for 

14 days in the absence of her protected activities and disclosures and modify the 

initial decision consistent with this section. We affirm the administrative judge’s 

determination that the agency did not meet its burden to show by clear and 

convincing evidence that it would have given the appellant “fully successful” 

summary performance ratings in FY 2014 and FY 2015 even absent her protected 

disclosures and activities. 

14-day suspension

¶22 On December 3, 2015, the Associate Regional Manager for Counseling 

proposed to suspend the appellant for 14 days on the basis of one charge of 

“misrepresentation” supported by the following two specifications: 

Specification 1: Between on or about October 1, 2014 and on or 

about October 1, 2015, on multiple occasions, you inputted 

inaccurate information into the [Service Activity Recording System 

(SARS)] computer system regarding the number of family members 

seen during client visits. The information that you provided on these 

multiple occasions was knowingly false, and you provided the 

inaccurate information with the intention to mislead the Agency. 

Specification 2: On or about September 23, 2015, you submitted a 

written statement to your supervisor [ ] in which you indicated that 

the “SARS” computer system automatically “enters an ‘extra’ 

number or contact to the session,” or words to that effect. The 

information that you provided was knowingly false, and it was 

provided with the intention to mislead the Agency. 

IAF, Tab 9 at 126-28. In support of its action, the agency provided copies of six 

“Visit Information” pages completed by the appellant over the course of 3 days in 

July 2015, each reflecting in the “#SIG/OTH” field that one more family member 

 

would have taken the other personnel actions against the appellant absent her protected 

activities and disclosures. PFR File, Tabs 1, 7-8, 10. 
17

attended the counseling session than actually attended it. 14 Id. at 131-32, 134, 

136-38. 

¶23 In a written response to the proposal notice, the appellant explained that, 

when entering session information into SARS, she followed the directions on the 

page to hold down the control key while selecting the names of the family 

members in attendance and that the system automatically filled in the #SIG/OTH 

field based on the number of family members selected, erroneously adding one to 

the number of individuals selected. IAF, Tab 24 at 213. She stated that she 

assumed that the field “was counting the veteran for a total count of people in the 

session.” Id. The appellant further explained that she correctly filled out the 

narrative section by identifying who attended the session. Id. In addition, she 

submitted statements from two counselors supporting her allegation that the 

computer system automatically populated the #SIG/OTH field with the number of 

family members selected plus one. Id. at 216-17. Specifically, a letter from a 

Social Worker provided the following: 

I am writing this statement to confirm that the electronic 

documentation system used for RCS also known as “SARS” 

automatically adds 1 person to the session reports when family 

members are listed as being present. When adding a session where a 

family member(s) are present, it instructs the user to press control 

and to highlight each person present in the session. The system 

automatically fills in the field “#sig/oth” (number of family members 

in session field) with the number of people highlighted and adding 

one to include the veteran. This becomes problematic when the 

veteran is not involved in that specific session. To my knowledge it 

has done this since this feature/field (number of family members in 

session field) was added and still does currently. 

Id. at 216. Another coworker’s statement explained that, “to add family members 

that are in the session, we are to hold down the control key to highlight the names 

 14 As explained in the initial decision, the “#SIG/OTH” field on the SARS Visit 

Information page reflects the number of the veteran’s significant others attending the 

session. ID at 34. For example, if the veteran attends the session alone, this field 

should be “0”; if a spouse and a child attend, this field should be “2.” Id. 
18

of the family members that are in the session. In doing this, the program 

automatically adds one additional number.” Id. at 217. Despite the appellant’s 

explanation and statements, the Acting Regional Manager concluded in a 

January 7, 2016 decision letter that there was “no indication” that the computer 

system automatically added one extra family member in the session record and 

imposed the suspension. IAF, Tab 9 at 84. 

¶24 In evaluating the first Carr factor, the Board assesses the strength of the 

agency’s evidence in support of the charge brought against the appellant and 

considers only the evidence that was before the agency at the time it acted. See 

Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶¶ 45-46 (2016) 

(explaining that in evaluating the strength of the agency’s evidence in support of 

its charge, the Board considers the charge brought and not whether the agency 

could have proven a charge that it did not bring); Yunus v. Department of 

Veterans Affairs, 84 M.S.P.R. 78, ¶ 8 (1999) (explaining that in determining the 

strength of the agency’s evidence, the Board considers the weight of the evidence 

before the agency when it acted), aff’d, 242 F.3d 1367 (Fed. Cir. 2001). To 

sustain its charge of misrepresentation, the agency had to prove that, as it alleged, 

the appellant knowingly supplied false information with an intent to mislead the 

agency. IAF, Tab 9 at 126-28; see Boo v. Department of Homeland Security, 

122 M.S.P.R. 100, ¶ 10 (2014) (discussing the elements required to prove a 

charge of misrepresentation in an adverse action proceeding). Intent to mislead 

the agency may be established by circumstantial evidence or inferred when the 

misrepresentation is made with a reckless disregard for the truth or with a 

conscious purpose to avoid learning the truth. Boo, 122 M.S.P.R. 100, ¶ 10. 

Whether intent has been proven must be resolved by considering the totality of 

the circumstances, including the appellant’s plausible explanation, if any. Id. 

¶25 Here, the administrative judge found that, although the agency failed to 

produce sufficiently strong evidence to support the second specification of 

misrepresentation, the evidence in support of the first specification was 
19

sufficiently strong to support the suspension. ID at 38-40. Specifically, he found 

that the agency’s evidence established that the appellant entered inaccurate 

information into SARS on at least 6 occasions in July 2015 and that, even if he 

credited her explanation that a “glitch” in the computer system caused the 

#SIG/OTH field to automatically populate with an incorrect number, she knew of 

the issue but failed to fix her entries. ID at 39. Thus, he concluded that the 

appellant completed the #SIG/OTH field with, at a minimum, a reckless disregard 

for the truth and that the agency’s evidence in support of the action was strong. 

ID at 38-39. 

¶26 The parties do not challenge the administrative judge’s determination that 

the agency’s evidence in support of the second specification was weak, PFR File,

Tabs 1, 7-8, 10, and we discern no basis to disturb this finding. The appellant 

argues, however, that the administrative judge erred in finding that the agency 

provided strong evidence in support of the first specification because the evidence 

does not establish that she intended to mislead or deceive the agency. PFR File,

Tab 7 at 9-10. 

¶27 In finding that the appellant knew that the number in the #SIG/OTH field 

was incorrect when she completed the reports in July 2015, the administrative 

judge relied, in part, on the appellant’s hearing testimony. ID at 39. Because the 

administrative judge considered evidence that was not before the agency when it 

acted and, in effect, adjudicated the reasons for the appellant’s suspension as if 

this were an otherwise appealable action, his finding regarding what she knew 

when she completed the reports is not entitled to deference. 15 See Yunus, 

84 M.S.P.R. 78, ¶ 14 (declining to afford deference to the administrative judge’s 

 15 The appellant further argues on review that the administrative judge mischaracterized 

her testimony insofar as he found that she accurately entered the number of attendees in 

the progress notes field because she knew that the number in the #SIG/OTH field was 

incorrect. PFR File, Tab 7 at 9-10; ID at 9. We have reviewed the appellant’s hearing 

testimony and agree that the administrative judge mischaracterized this aspect of her 

testimony. HCD (testimony of the appellant). 
20

findings regarding the first Carr factor because he considered evidence that 

was not before the agency at the time it acted). 

¶28 As noted above, in determining whether an appellant had the requisite intent 

to sustain a charge of misrepresentation, it is appropriate to consider her plausible 

explanation. See Boo, 122 M.S.P.R. 100, ¶ 10. Here, the appellant explained that 

the #SIG/OTH field automatically populated after she followed the on-screen 

instructions to hold down the control key while selecting the names of the family 

members in attendance and that she “assumed” that the field represented a count 

of the total number of people in the session, i.e., the veteran plus family 

members. IAF, Tab 24 at 213. The appellant further provided two coworker 

statements supporting her contention. Id. at 216-17. Nothing in the agency’s 

evidence refutes her plausible explanation that she did not realize that the field 

was automatically populating with an incorrect number in early July 2015 or that 

she should have changed it. 16 We further find that the fact that the appellant 

entered the correct information in the narrative section, which ultimately allowed 

her supervisor to identify the discrepancy between the #SIG/OTH field and the 

actual number of family members who attended the session, suggests that her 

error was inadvertent rather than intentional. 

¶29 In addition, the deciding official testified that, when he decided to impose 

the appellant’s 14-day suspension, he had determined that the appellant was 

correct that the #SIG/OTH field would automatically populate but that, for him, 

the issue was that she should have ensured the number was correct before 

 16 Although the proposed suspension letter states that the appellant submitted inaccurate 

SARS reports between October 2014 and October 2015, the agency’s evidentiary file 

contains only six reports with allegedly inaccurate information, all of which she 

completed on July 1, 2, or 7, 2015. IAF, Tab 9 at 131-32, 134, 136-38. According to a 

report of contact completed by the appellant’s supervisor, he noticed discrepancies 

between the number of family members in the #SIG/OTH field and the individuals 

identified in the narrative section in the appellant’s July 2015 SARS reports and 

discussed the discrepancies with her in a meeting on August 21, 2015. Id. at 140. 

There is no indication, however, that he previously discussed such issues with her. 
21

submitting the form. HCD (testimony of the deciding official). The deciding 

official’s belief that the appellant should have more thoroughly reviewed her 

reports to ensure that they were correct, however, does not establish that she 

intentionally provided incorrect information with the intent to mislead the agency, 

as expressly alleged in the charge. IAF, Tab 9 at 126; see Scoggins, 123 M.S.P.R.

592, ¶ 46. 

¶30 In light of the foregoing, we find that the agency did not provide strong 

evidence in support of the charge of misrepresentation and, therefore, that the 

first Carr factor weighs against the agency. 

¶31 When evaluating the second Carr factor, the Board will consider any motive 

to retaliate on the part of the agency official who ordered the action, as well as 

any motive to retaliate on the part of other agency officials who influenced the 

decision. Phillips v. Department of Transportation, 113 M.S.P.R. 73, ¶ 21 

(2010). In the initial decision, the administrative judge assessed the motives of 

the deciding official, the proposing official, and the appellant’s supervisor, who 

investigated the alleged misconduct and compiled the evidence file in support of 

the action. ID at 41-42. He found that the appellant’s supervisor had a strong 

motive to retaliate against the appellant because her protected disclosures 

implicated him and he had knowledge of the disclosures before investigating her 

for misrepresentation. ID at 41. However, he found that the proposing and 

deciding officials were not motivated to retaliate against the appellant. ID 

at 41-42. Therefore, the administrative judge concluded that the second Carr 

factor weighed in favor of the agency. ID at 42. The appellant challenges this 

finding on review. PFR File, Tab 7 at 10-12. 

¶32 First, we agree with the administrative judge’s determination that the 

appellant’s supervisor had a strong motive to retaliate against her. ID at 41. It is 

undisputed that he knew of her protected disclosures and activities and that the 

agency temporarily reassigned him from his supervisory duties and proposed to 

suspend him for 10 days as a result of the appellant’s disclosing his inappropriate 
22

financial transactions with a patient. ID at 26, 41; IAF, Tab 19 at 4-5. 

Furthermore, we defer to the administrative judge’s finding that the proposing 

and deciding officials credibly testified that they were not motivated to retaliate 

against the appellant. ID at 41-42. Nonetheless, we disagree with the 

administrative judge’s conclusion that the second Carr factor weighs in the 

agency’s favor. 

¶33 In examining retaliatory motive for an agency action, the officials 

“involved” in the action may encompass more than just the proposing or deciding 

officials and may include other officials upon whom the proposing or deciding 

official relied for information. See Mangano v. Department of Veterans Affairs, 

109 M.S.P.R. 658, ¶ 30 (2008). Here, the proposing and deciding officials relied 

on the evidentiary package compiled by the appellant’s supervisor, including 

three reports of contact he personally drafted. IAF, Tab 9 at 126-45; HCD 

(testimony of the deciding and proposing officials). Moreover, in assessing the 

appropriate penalty, they considered the appellant’s prior discipline—namely, a 

January 29, 2015 admonishment from the appellant’s supervisor. Id. at 126, 

146-47; HCD (testimony of the deciding official). Therefore, we find that the 

appellant’s supervisor, who had a very strong motive to retaliate against her, 

influenced the agency’s action. There also is ample evidence to find that some of 

the appellant’s disclosures reflected poorly on the agency as a whole, as they 

alleged, inter alia, that the agency lost patient information and that a supervisor 

engaged in improper financial transactions with a patient. ID at 6-13; see 

Smith v. Department of the Army, 2022 MSPB 4, ¶¶ 28-29 (considering under the 

second Carr factor whether a “professional retaliatory motive” existed because 

the significant negative publicity resulting from the disclosures reflected poorly 

on the agency and its officials). In conclusion, we hold that the second Carr 

factor weighs against the agency. 

¶34 Regarding the third Carr factor, the administrative judge found that there 

was no evidence that the agency took similar actions against similarly situated 
23

nonwhistleblowers and concluded that the third Carr factor was not a “significant 

factor” in his analysis. ID at 43. The appellant challenges this finding on review, 

arguing that Carr factor three weighs against the agency because she provided 

evidence reflecting that other employees engaged in the same conduct but 

were not disciplined. PFR File, Tab 7 at 14-15. The agency argues that the 

administrative judge properly found that the third Carr factor was neutral because 

the appellant’s supervisor testified that he monitored all of his counselors’ SARS 

entries but had never observed another counselor engage in this type of conduct 

and because the deciding official likewise testified that he had never seen this 

type of conduct. PFR File, Tab 10 at 17. 

¶35 As discussed above, the appellant provided the agency with two coworker 

statements agreeing with her that the #SIG/OTH field automatically populated 

with an incorrect number. IAF, Tab 24 at 216-17. In one of the statements, the 

coworker observed that she was not aware of the problem until the appellant 

pointed it out to her in December 2015. Id. at 217. Although we disagree with 

the appellant’s contention that this evidence proves that other employees engaged 

in the same conduct, i.e., submitting SARS reports containing an inaccurate 

number in the #SIG/OTH field, it appears likely that other counselors did so. The 

Board previously has adopted the reasoning of the U.S. Court of Appeals for the 

Federal Circuit that “the failure to produce such evidence if it exists ‘may be at 

the agency’s peril,’ and ‘may well cause the agency to fail to prove its case 

overall.’” Smith, 2022 MSPB 4, ¶ 30 (quoting Whitmore, 680 F.3d at 1374). The 

agency provided testimony from the appellant’s supervisor and the deciding 

official that they had not observed similar inaccuracies in other employees’ 

reports. HCD (testimony of the appellant’s supervisor and the deciding official). 

However, despite having access to this information, the agency provided no 

evidence of its efforts to ascertain whether other employees had engaged in the 

same alleged misconduct. Under these circumstances, we find that this 

Carr factor “cut[s] slightly against” the agency. See Miller v. Department of 
24

Justice, 842 F.3d 1252, 1262-63 (Fed. Cir. 2016); cf. Phillips, 113 M.S.P.R. 73, 

¶ 24 (finding that an agency’s decision to direct an appellant’s reassignment 

before awaiting a decision on a proposed suspension for the underlying 

misconduct could be viewed as a failure to conduct an adequate investigation, 

which in turn might indicate an improper retaliatory motive). 

¶36 In sum, we find that the agency’s evidence in support of the 14-day 

suspension was weak when it took the action, that the agency had a significant 

motive to retaliate against the appellant, and that it did not produce pertinent 

evidence of its treatment of similarly situated nonwhistleblowers despite 

indications others might have engaged in the same conduct. We therefore find 

that the agency has not met its burden of proving by clear and convincing 

evidence that it would have suspended the appellant for 14 days absent her 

protected activities and disclosures. 17 

FY 2014 and FY 2015 performance appraisals

¶37 From FY 2012 through FY 2015, the appellant’s performance standards 

included the critical elements of customer service, clinical services, and program 

management/administration. IAF, Tab 17 at 48, Tab 18 at 7, 12, 18. For each 

element, the possible levels of achievement are exceptional, fully successful, or 

unacceptable. Id. The overall performance rating may be outstanding, excellent, 

fully successful, minimally satisfactory, or unacceptable depending on the levels 

of achievement for each element. IAF, Tab 17 at 49, Tab 18 at 8, 13, 19. To 

receive an “outstanding” overall performance rating, the achievement level for all

elements must be exceptional. Id. 

 17 In light of this finding, we find it unnecessary to address the appellant’s argument 

that the agency committed procedural and due process errors in issuing the proposed 

removal and sustaining the penalty. PFR File, Tab 7 at 13-14. We also find it 

unnecessary to address her argument that her supervisor was a nonwhistleblower who 

was treated more favorably. Id. at 17. Finally, we do not reach the appellant’s 

argument that she did not call another witness to testify regarding her supervisor’s 

motive to retaliate because she incorrectly believed that he was not involved in the 

suspension action. Id. at 12-13. 
25

¶38 In FY 2012, the appellant’s supervisor rated her as exceptional in each 

element, and she consequently received a summary performance rating of 

“outstanding.” IAF, Tab 17 at 48-49. In FY 2013, FY 2014, and FY 2015, 

however, the appellant’s supervisor rated her as fully successful in at least one 

critical element, and she therefore received a summary performance rating of 

“fully successful.” IAF, Tab 18 at 7-8, 12-13, 18-19. The appellant argued that 

the agency lowered her FY 2013, FY 2014, and FY 2015 performance ratings in 

retaliation for her protected activities and disclosures. IAF, Tab 11 at 3. 

¶39 In considering the appellant’s FY 2013 performance appraisal, the 

administrative judge found that the first Carr factor weighed in favor of the 

agency because it clearly articulated its reasoning for not rating the appellant 

exceptional in, at least, the customer service critical element, which was 

sufficient to justify an overall “fully successful” performance rating. ID at 44. In 

so finding, he relied on the appellant’s supervisor’s testimony that, in rating the 

appellant as “fully successful” in all four elements for FY 2013, he considered the 

following: the acting team leader counseled the appellant for disrespectful 

conduct in February 2013; her case management numbers were among the lowest 

in the office; and she failed to stop a heated discussion while she was in charge of 

a staff meeting. 18 Id.; IAF, Tab 25 at 290-91. The administrative judge also 

found that the third Carr factor weighed in favor of the agency, observing that the 

appellant and her supervisor both testified that, in FY 2013, only one employee 

received an overall performance rating better than “fully successful.” ID at 47. 

Although the administrative judge found that the second Carr factor weighed 

against the agency because, as discussed above, the appellant’s supervisor had a 

significant motive to retaliate against her, he concluded that the agency 

established by clear and convincing evidence that it would have rated the 

 18 On February 5, 2013, the acting team leader issued the appellant a written counseling 

regarding an unprofessional and a disrespectful text message. IAF, Tab 17 at 39-40. 
26

appellant as “fully successful” in FY 2013 even absent her protected activities 

and disclosures. ID at 48. 

¶40 Regarding the FY 2014 and FY 2015 performance appraisals, the 

administrative judge found that the agency failed to produce sufficient evidence 

supporting the ratings and that the first Carr factor therefore weighed against the 

agency. ID at 45-47. For FY 2014, he observed that the appellant’s supervisor

rated her as exceptional in all elements except for the critical element of customer 

service, in which he rated her as “fully successful.” ID at 45; IAF, Tab 18

at 12-13. The administrative judge concluded that the agency produced “little, if 

any” evidence supporting this rating and that the appellant’s self-appraisal 

provided “uncontroverted evidence” supporting a higher rating in the customer 

service critical element. ID at 45. For FY 2015, the administrative judge 

observed that the appellant’s supervisor rated her as fully successful in the 

critical elements of customer service and clinical services but that the agency 

failed to produce any evidence supporting these ratings. ID at 45-46; IAF, Tab 18 

at 18-19. He found that the second Carr factor likewise weighed against the 

agency because, as discussed above, the appellant’s supervisor had a strong 

motive to retaliate against her and his supervisors, who approved the rating, 

similarly had a motive to retaliate. ID at 46-47. Lastly, the administrative judge

found that the record did not contain sufficient evidence concerning actions taken 

against similarly situated nonwhistleblowers and that the third Carr factor 

was not a significant factor in his analysis. ID at 47-48. The administrative 

judge found, therefore, that the agency failed to show by clear and convincing 

evidence that it would have rated the appellant as “fully successful” in FY 2014 

and FY 2015 absent her protected disclosures and activities. ID at 48. 

¶41 On review, the agency challenges the administrative judge’s finding 

regarding the first Carr factor in his consideration of the FY 2014 and FY 2015 

performance appraisals, arguing that he failed to consider relevant evidence and 
27

ignored the fact that agency regulations require specific evidence of achievement 

supporting a higher than “fully successful” rating. 19 PFR File, Tab 1 at 5-11. 

¶42 As the agency points out, its guidance regarding performance ratings 

provides that an employee’s performance must “exceed[] normal expectations” to 

justify an exceptional level of achievement for a particular element. PFR File,

Tab 1 at 6; Veterans Administration Handbook 5013, Section I-2. However, 

when, as here, an appellant establishes a prima facie case of whistleblower 

reprisal, the agency bears the burden to clearly and convincingly establish that it 

would have taken the same action in the absence of her protected activities and 

disclosures. Supra ¶ 5. Therefore, notwithstanding the high threshold for an 

employee to achieve an exceptional level of achievement in a particular element, 

the agency must come forward in this context with sufficient evidence to support 

its giving the appellant lower ratings in the critical elements of clinical and 

customer services than she previously received. 

¶43 As to the FY 2015 performance appraisal, the agency argues that the 

administrative judge erred in disregarding the appellant’s January 29, 2015 

admonishment, which establishes that her performance did not “far exceed normal 

expectations.” 20 PFR File, Tab 1 at 9. We agree with the administrative judge, 

however, that the agency failed to produce any evidence showing that the 

appellant’s supervisor considered the admonishment when rating the appellant for 

FY 2015. ID at 46 n.18. We find, though, that the mere existence of the 

admonishment, which relates to the customer service critical element, provides 

some evidence in support of the appellant’s fully successful rating in the 

customer service element for FY 2015. 

 19 The agency does not challenge, and we find no basis to disturb, the administrative 

judge’s determination that the second Carr factor weighs against the agency and that 

the third Carr factor is essentially neutral. ID at 46-48; PFR File, Tab 1. 

20 On January 29, 2015, the appellant’s supervisor admonished her for an unreasonable 

delay in carrying out instructions and refusing to carry out a proper order. IAF, Tab 9 

at 146-47. 
28

¶44 Regarding the FY 2014 performance appraisal, the agency argues that the 

administrative judge failed to consider the appellant’s supervisor’s EEO affidavit, 

which, according to the agency, identified specific deficiencies in the appellant’s 

performance for FY 2013 and FY 2014. PFR File, Tab 1 at 6-7. In the 

appellant’s supervisor’s October 28, 2015 EEO affidavit, he stated that he was the 

rating official for the appellant in both FY 2013 and FY 2014 and then appeared 

to discuss only the appellant’s FY 2013 performance appraisal. IAF, Tab 25

at 289. Specifically, he stated that the rating period went from October 2012 to 

September 2013 and that the appellant received a written admonishment from the 

acting team leader in February 2013 for unprofessional and disrespectful conduct, 

had a “heated discussion” during a meeting on an unspecified date, had low 

numbers of case management for an unspecified time period, and was 

disrespectful to her coworkers. Id. at 289-91. He stated that the only person who 

received a higher rating “[t]hat year” was the individual who served as acting 

team leader during his absence. Id. at 291. It is undisputed that this individual 

served as acting team leader from January through June 2013. IAF, Tab 17 at 5,

Tab 29 at 5. As discussed above, the administrative judge considered these 

performance deficiencies in finding that the first Carr factor weighed in favor of 

the agency for the FY 2013 performance appraisal. ID at 44; IAF, Tab 25 

at 289-91; HCD (testimony of the appellant’s supervisor). We discern no merit to 

the agency’s argument on review that the above statements pertained to the 

appellant’s performance in both FY 2013 and FY 2014. PFR File, Tab 1 at 7. 

Therefore, we find that the administrative judge properly considered these 

statements in connection with the FY 2013 performance appraisal. ID at 44. 

¶45 The agency also argues that the administrative judge failed to consider the 

appellant’s supervisor’s hearing testimony, during which he identified specific 

deficiencies in the appellant’s performance from 2013 through 2015. PFR File,

Tab 1 at 6. At the hearing, the appellant’s supervisor testified that he rated the 

appellant as fully successful because she was “written up” at some point and, 
29

during an unspecified time period, had low case management numbers. HCD 

(testimony of the appellant’s supervisor). We discern no basis to disturb the 

administrative judge’s finding that this testimony corresponded to the appellant’s 

February 2013 written counseling for unprofessional and disrespectful conduct 

and the low case management numbers for the same year as referenced in the 

appellant’s supervisor’s EEO affidavit. IAF, Tab 17 at 39-40, Tab 25 at 289-91. 

Therefore, we find that the administrative judge properly considered this 

testimony in evaluating the appellant’s FY 2013 performance appraisal. ID at 44. 

¶46 The agency further argues that the administrative judge improperly failed to 

consider the January 2017 fact-finding report, which “could have” allowed the 

administrative judge to find that the appellant’s FY 2014 and FY 2015 summary 

ratings were justified. PFR File, Tab 1 at 6-7; IAF, Tab 30. In particular, the 

agency states that the fact-finding report contains statements by the appellant’s 

supervisor concerning “long-standing noncompliance by the appellant” and “her 

demeaning and offensive interactions with other staff” and that his opinions are 

reinforced by other employees. Id. Although the fact-finding report contains a 

number of statements by coworkers indicating that it was difficult to work with 

the appellant, all of the statements were given in January 2017 and none of them 

refer to her behavior or performance in FY 2014 or FY 2015. IAF, Tab 30

at 7-13. Because the January 2017 fact-finding report postdates the appellant’s 

FY 2014 and FY 2015 performance appraisals by several years and is not relevant 

to the appellant’s performance or behavior in FY 2014 or FY 2015, the 

administrative judge properly did not consider it in assessing the strength of the 

agency’s evidence. IAF, Tab 30; see Yunus, 242 F.3d at 1372. 

¶47 After weighing all of the pertinent evidence, including the admonishment, 

against the agency’s significant motive to retaliate against the appellant, we agree 

with the administrative judge’s determination that the agency did not establish by 

clear and convincing evidence that it would have given the appellant the same 

summary performance ratings in FY 2014 and FY 2015 in the absence of any 
30

whistleblowing. 21 See Rumsey v. Department of Justice, 120 M.S.P.R. 259, 

¶¶ 35-38 (2013) (finding that the agency failed to meet its burden to demonstrate 

independent causation for rating an employee’s performance as “successful” when 

the rating was “somewhat inconsistent” with the agency’s perception of the 

employee’s performance in the recent past and the rating official did not provide 

any explanation as to why she rated the employee’s performance as “successful” 

rather than some other rating).

CONCLUSION

¶48 For the foregoing reasons, we find that the appellant is entitled to corrective 

action under 5 U.S.C. § 1221(g)(1) in connection with her 14-day suspension and 

her FY 2014 and FY 2015 performance appraisals. 

ORDER

¶49 We ORDER the agency to provide the appellant with relief such that she is 

placed as nearly as possible in the same situation she would have been in had the 

agency rated her as “outstanding” in FY 2014 and FY 2015 and not suspended her 

for 14 days. 5 U.S.C. § 1221(g)(1)(A)(i); see Kerr v. National Endowment for the 

Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no 

later than 20 days after the date of this decision. 

¶50 We also ORDER the agency to pay the appellant the correct amount of back 

pay, interest on back pay, and other benefits under the Office of Personnel 

Management’s regulations, no later than 60 calendar days after the date of this 

decision. We ORDER the appellant to cooperate in good faith in the agency’s 

efforts to calculate the amount of back pay, interest, and benefits due, and to 

provide all necessary information the agency requests to help it carry out the 

 21 Although the appellant’s 14-day suspension resulted from her alleged falsified SARS 

submissions during FY 2015, her supervisor testified that he did not lower her 

administration/program management rating to account for this alleged misconduct in 

her FY 2015 performance appraisal because, when he rated her, he had not yet 

completed his investigation. HCD (testimony of the appellant’s supervisor). 
31

Board’s Order. If there is a dispute about the amount of back pay, interest due, 

and/or other benefits, we ORDER the agency to pay the appellant the undisputed 

amount no later than 60 calendar days after the date of this decision. 

¶51 We further ORDER the agency to tell the appellant promptly in writing 

when it believes it has fully carried out the Board’s Order and of the actions it has 

taken to carry out the Board’s Order. The appellant, if not notified, should ask 

the agency about its progress. See 5 C.F.R. § 1201.181(b). 

¶52 No later than 30 days after the agency tells the appellant that it has fully 

carried out the Board’s Order, the appellant may file a petition for enforcement 

with the office that issued the initial decision on this appeal if the appellant 

believes that the agency did not fully carry out the Board’s Order. The petition 

should contain specific reasons why the appellant believes that the agency has not 

fully carried out the Board’s Order, and should include the dates and results of 

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶53 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and 

Accounting Service (DFAS), two lists of the information and documentation 

necessary to process payments and adjustments resulting from a Board decision 

are attached. The agency is ORDERED to timely provide DFAS or NFC with all 

documentation necessary to process payments and adjustments resulting from the 

Board’s decision in accordance with the attached lists so that payment can be 

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney 

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of 

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The 

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If 
32

you believe you meet these requirements, you must file a motion for attorney fees 

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. 

You must file your motion for attorney fees and costs with the office that issued 

the initial decision on your appeal.

NOTICE TO THE APPELLANT REGARDING 

YOUR RIGHT TO REQUEST CONSEQUENTIAL AND/OR 

COMPENSATORY DAMAGES

You may be entitled to be paid by the agency for your consequential 

damages, including medical costs incurred, travel expenses, and any other 

reasonable and foreseeable consequential damages. To be paid, you must meet 

the requirements set out at 5 U.S.C. §§ 1214(g) or 1221(g). The regulations may 

be found at 5 C.F.R. §§ 1201.201, 1201.202 and 1201.204.

In addition, the Whistleblower Protection Enhancement Act of 2012 

authorized the award of compensatory damages including interest, reasonable 

expert witness fees, and costs, 5 U.S.C. § 1214(g)(2), which you may be entitled 

to receive.

If you believe you are entitled to these damages, you must file a motion for 

consequential damages and/or compensatory damages WITHIN 

60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You must file 

your motion with the office that issued the initial decision on your appeal.

NOTICE TO THE PARTIES

A copy of the decision will be referred to the Special Counsel “to 

investigate and take appropriate action under [5 U.S.C.] section 1215,” based on 

the determination that “there is reason to believe that a current employee may 

have committed a prohibited personnel practice” under 5 U.S.C. § 2302(b)(8) or 

section 2302(b)(9)(A)(i), (B), (C), or (D). 5 U.S.C. § 1221(f)(3). Please note 

that while any Special Counsel investigation related to this decision is pending, 

“no disciplinary action shall be taken against any employee for any alleged 
33

prohibited activity under investigation or for any related activity without the 

approval of the Special Counsel.” 5 U.S.C. § 1214(f).

NOTICE OF APPEAL RIGHTS22

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain 

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 

your claims determines the time limit for seeking such review and the appropriate 

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 

summary of available appeal rights, the Merit Systems Protection Board does not 

provide legal advice on which option is most appropriate for your situation and 

the rights described below do not represent a statement of how courts will rule 

regarding which cases fall within their jurisdiction. If you wish to seek review of 

this final decision, you should immediately review the law applicable to your 

claims and carefully follow all filing time limits and requirements. Failure to file 

within the applicable time limit may result in the dismissal of your case by your 

chosen forum. 

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

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

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

should contact that forum for more information. 

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

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

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

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

§ 7703(b)(1)(A). 

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

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

Board cannot advise which option is most appropriate in any matter.
34

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

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

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

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

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

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

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

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

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

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

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

any attorney will accept representation in a given case. 

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

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

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

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

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

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

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

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

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of 
35

discrimination based on race, color, religion, sex, national origin, or a disabling 

condition, you may be entitled to representation by a court-appointed lawyer and 

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

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

websites, which can be accessed through the link below: 

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

Alternatively, you may request review by the Equal Employment 

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

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

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

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

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

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

this decision. 

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

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

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

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

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

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

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 
36

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

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

disposition of allegations of a prohibited personnel practice described in section 

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

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

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

competent jurisdiction. 23 The court of appeals must receive your petition for 

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

§ 7703(b)(1)(B). 

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

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

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

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

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

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

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

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

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

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

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

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

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

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

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

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

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

132 Stat. 1510. 
37

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

any attorney will accept representation in a given case. 

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

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

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

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board
DEFENSE FINANCE AND ACCOUNTING SERVICE

Civilian Pay Operations

DFAS BACK PAY CHECKLIST

The following documentation is required by DFAS Civilian Pay to compute and pay back pay 

pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following 

checklist to ensure a request for payment of back pay is complete. Missing documentation may 

substantially delay the processing of a back pay award. More information may be found at: 

https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx. 

NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by 

vendor pay, not DFAS Civilian Pay. 

☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the 

specific dates of the back pay period within the ticket comments. 

Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket 

comments as to why the documentation is not applicable: 

☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. 

☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. 

☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s 

until notified to do so by DFAS Civilian Pay.*** 

☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until 

notified to do so by DFAS Civilian Pay.*** 

☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). 

☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee 

in a job undertaken during the back pay period to replace federal employment. 

Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also, 

include record of any unemployment earning statements, workers’ compensation, 

CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums, 

or severance pay received by the employee upon separation. 

Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority 

under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment 

they may have received. The payroll office must collect the debt from the back pay award. The 

annual leave will be restored to the employee. Annual leave that exceeds the annual leave 

ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g). 
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES

Below is the information/documentation required by National Finance Center to process 

payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by 

the Merit Systems Protection Board, EEOC, and courts. 

1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information 

describing what to do in accordance with decision. 

2. The following information must be included on AD-343 for Restoration: 

a. Employee name and social security number. 

b. Detailed explanation of request. 

c. Valid agency accounting. 

d. Authorized signature (Table 63). 

e. If interest is to be included. 

f. Check mailing address. 

g. Indicate if case is prior to conversion. Computations must be attached. 

h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be 

collected (if applicable). 

Attachments to AD-343 

1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday 

Premium, etc. with number of hours and dates for each entitlement (if applicable). 

2. Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts. 

3. Outside earnings documentation statement from agency. 

4. If employee received retirement annuity or unemployment, provide amount and address 

to return monies. 

5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)

6. If employee was unable to work during any or part of the period involved, certification of 

the type of leave to be charged and number of hours. 

7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual 

Leave to be paid. 

NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and 

required data in 1-7 above. 

The following information must be included on AD-343 for Settlement Cases: (Lump Sum 

Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) 

a. Must provide same data as in 2, a-g above. 

b. Prior to conversion computation must be provided. 

c. Lump Sum amount of Settlement, and if taxable or non-taxable. 

If you have any questions or require clarification on the above, please contact NFC’s 

Payroll/Personnel Operations at 504-255-4630.