[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10962

Non-Argument Calendar

____________________

KATHERINE FLEMING, 

Petitioner,

versus

MERIT SYSTEMS PROTECTION BOARD, 

U.S. DEPARTMENT OF INTERIOR, 

Respondents.

____________________

Petition for Review of a Decision of the

Merit Systems Protection Board

Agency No. AT-1221-11-0460-B-3

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2 Opinion of the Court 23-10962

____________________

Before JORDAN, LAGOA, and HULL, Circuit Judges.

PER CURIAM:

Katherine L. Fleming, pro se, petitions for review of a final 

order of the Merit Systems Protection Board (“MSPB”), which 

affirmed an administrative law judge’s denial of Fleming’s request 

for corrective action as to the termination of her federal 

employment. Fleming asserts that she engaged in protected 

whistleblower activity that caused (1) her termination and (2) her 

supervisor to create a hostile work environment for her that in turn 

caused Fleming’s conduct and performance problems. The 

administrative law judge and then the MSPB concluded that 

Fleming would have been terminated in the absence of her 

protected activity and that her supervisor did not create a hostile 

work environment in retaliation for her protected activity. After 

review, we dismiss in part and deny in part Fleming’s petition for 

review. 

I. FACTUAL BACKGROUND

A. September 18, 2005 Hiring

Fleming was employed by the National Park Service 

(“NPS”) as a museum curator at the Everglades National Park (the 

“Everglades Park”). The NPS is part of the Department of the 

Interior (the “agency”). Fleming was appointed for a term that 

began on September 18, 2005 and was not to exceed October 17, 

2006. Upon successful completion of her one-year probationary

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period, the term could be extended up to four years. Nancy Russell 

was Fleming’s direct supervisor at the Everglades Park. 

In early October 2005, less than a month after Fleming 

began work, Fleming participated in an NPS project at the Dry 

Tortugas National Park (the “Dry Tortugas Park”) to stabilize 

cannons damaged by a hurricane. Fleming and Cheri Vitez, a 

museum technician, painted the cannons using a zinc primer and 

were exposed to toluene, a toxic solvent. Vitez began to feel ill and 

returned to quarters. Later that evening, Fleming became

frustrated with her supervisor Russell and yelled at her “for her 

total insensitivity toward [the members of the project team] and 

her lack of interest in [Vitez’s] present condition.” 

B. January 26, 2006 Suspension

While Russell supervised Fleming, Brien Culhane was 

Russell’s supervisor at the Everglades Park. On January 6, 2006, 

Russell e-mailed a six-page summary of her concerns about 

Fleming’s conduct and performance to Culhane and a human 

resources officer at the agency. A week later, on January 13, 2006, 

Russell proposed terminating Fleming and sent Culhane an 

11-page summary of Fleming’s conduct and performance issues

that began in October 2005. 

In her 11-page summary, Russell wrote that Fleming 

(1) repeatedly failed to follow instructions; (2) had not made

satisfactory progress in processing the museum’s collection; 

(3) failed to respond to her requests for updates; (4) had a 

condescending attitude and questioned her expertise; (5) removed

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files from her office without authorization; and (6) refused to meet 

with her to establish a performance plan. Despite Russell 

informing Fleming that her conduct was unacceptable, the 

situation had become “untenable” and Fleming’s continued 

employment was “counterproductive to the museum program.” 

On January 26, 2006, after receiving Culhane’s input, Russell 

informed Fleming of a proposed three-day suspension “for 

misconduct.” 

In her February 6, 2006 written response to Culhane, 

Fleming (1) denied all charges of misconduct and (2) lodged several 

complaints against Russell. Fleming alleged that she and a 

co-worker were exposed to hazardous zinc paint and toluene while 

painting cannons at the Dry Tortugas Park. Fleming calls this her 

whistleblowing activity: her reporting and complaining about 

toxic-chemicals exposure at the Dry Tortugas Park. 

In a February 7, 2006 memorandum to Culhane, Russell 

denied Fleming’s accusations. Culhane investigated the charges 

made by Russell and Fleming. Culhane met with Fleming multiple 

times, as well as 24 other individuals. 

In April 2006, Culhane suspended Fleming for two days, 

beginning on May 1, 2006.1 Culhane sent a memorandum to 

1 On May 9, 2006, after serving a two-day suspension, Fleming filed a grievance 

and challenged her suspension. During the grievance process, the Everglades

Park, based on the agency’s recommendation, rescinded Fleming’s suspension 

because it was “procedurally defective.” 

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Fleming that detailed his findings. Culhane sustained the four 

charges that Fleming: (1) failed to provide information Russell 

requested for her performance plan; (2) refused to come to 

Russell’s office when requested; (3) failed to use the requested 

format for inventory, or to send inventory until requested four

times; and (4) failed to provide the requested level of detail in her 

weekly reports to Russell. For the other charges, Culhane was

unable to determine whether the alleged events occurred because 

Russell’s instructions were given verbally and were not witnessed 

by a third party. 

Culhane also concluded that none of Fleming’s charges 

against Russell could be sustained. 

C. Bailey’s May 31, 2006 Report

Problems persisted with Fleming’s work at the Everglades 

Park. So Culhane asked Lisbit Bailey, an experienced archivist 

from a different national park, to conduct an independent review 

of Fleming’s work. Bailey conducted a site visit from May 8 to May 

12, 2006. Bailey prepared two assessments of Fleming’s conduct 

and performance. Her first report, dated May 31, 2006, noted that 

Fleming “seemed to be working in a way that was not consistent 

with standard archival methodology.” Fleming’s work “raised red 

flags,” and it was apparent that Fleming “was not consulting the 

National Park Service Records Disposition Schedule.” Bailey also 

reported that during a close-out meeting, Fleming was “downright 

recalcitrant and unprofessional.” The report contained next steps 

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for Fleming. Bailey concluded that she was “cautiously optimistic” 

and that “the project was back on track.” 

D. Bailey’s June 8, 2006 Report

After reviewing progress on the project and a follow-up 

phone conversation with Russell, Bailey prepared a second report,

dated June 8, 2006. Bailey noted that: (1) the situation with Fleming 

was “dismaying”; (2) Fleming appeared to “want to work in a 

vacuum”; (3) Fleming “used the principle of original order to 

ultimately bring the project to a grinding halt, again”; and (4) Bailey 

was not certain that Fleming knew what she was doing. To Bailey, 

Fleming’s performance and conduct were concerning, as she “ha[d] 

gone back to delving into the boxes and [wa]s not dealing with the 

database.” As it stood, Fleming was “not going to complete the 

project no matter how much time she ha[d].” This threatened the 

funding for the Everglades Park and the region. 

E. June 12, 2006 Termination

On June 12, 2006, Culhane terminated Fleming due to 

unsatisfactory conduct and performance, effective June 24, 2006. 

Then, from 2006 to 2023, a lengthy and complicated 

procedural history followed, with two hearings before the first 

administrative law judge (“ALJ”), three appeals to the MSPB, an 

appeal to the Federal Circuit, a reassignment to a new ALJ, that

new ALJ’s decision denying corrective action, and the MSPB 

affirming that new ALJ’s decision. We review each in order to 

explain later Fleming’s claims in this appeal.

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II. PROCEDURAL HISTORY

After her termination, Fleming filed a complaint with the 

United States Office of Special Counsel (“OSC”), wherein she 

asserted she was terminated in retaliation for numerous alleged 

protected activities. Federal whistleblowers are protected from 

retaliatory personnel actions by government agencies and may file 

a claim seeking “corrective action.” 5 U.S.C. §§ 2302(b)(8), 1221(a). 

After exhausting her administrative remedies with the OSC, 

Fleming in 2011 filed an individual right of action appeal (the 

“agency appeal”) requesting corrective action. 

A. Proceedings Before First ALJ: 2011-2015

In her agency appeal, Fleming asserted that she was 

terminated in retaliation for numerous alleged disclosures that she 

claimed were protected whistleblowing activity. Her agency 

appeal identified “[t]ermination during probationary or initial 

service period” as the sole agency personnel action or decision she 

appealed. Throughout her agency appeal, Fleming alleged that the 

adverse action taken against her for whistleblowing was 

“termination.” Fleming claimed that any conduct and 

performance issues “were the result of being under duress due to 

repeated attempts by [Russell] to undermine [Fleming] and create 

a hostile work environment.” 

On May 6, 2011, an ALJ, without holding a hearing,

dismissed Fleming’s agency appeal for lack of jurisdiction after 

determining that her alleged disclosures were not protected

activity. Fleming appealed the ALJ decision to the MSPB. 

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On review, the MSPB vacated the ALJ’s decision as to only 

one disclosure: her February 6, 2006 disclosure to Culhane about 

her toxic-chemicals exposure during the Dry Tortugas Park cannon 

stabilization project (the “Dry Tortugas disclosure”). The MSPB 

vacated the ALJ’s decision and remanded. 

Following a hearing on remand, the ALJ denied Fleming’s 

request for corrective action, finding that Fleming failed to prove a 

protected disclosure. The ALJ concluded that Fleming’s Dry 

Tortugas disclosure did not reveal material information that was 

hidden and not known to Culhane. Alternatively, even assuming 

Fleming’s disclosure was protected and was a contributing factor 

to her termination, the ALJ determined that the agency proved by 

clear and convincing evidence that it would have terminated 

Fleming in the absence of the disclosure. Fleming appealed to the 

MSPB. 

On review, the MSPB vacated the ALJ’s second decision 

because (1) the Dry Tortugas disclosure was protected even 

though it revealed information that Culhane, the decisionmaker,

already knew and (2) the ALJ’s analysis of the purportedly clear and 

convincing evidence did not comply with the standard articulated 

in Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012). 

The MSPB remanded for the ALJ to reconsider the record as a 

whole and make thoroughly reasoned findings addressing the 

evidence supporting its conclusions and the countervailing 

evidence. 

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After another hearing on remand, the ALJ denied Fleming’s 

request for corrective action. Although Fleming made a protected 

disclosure that was a contributing factor to her termination, the 

ALJ found that the agency demonstrated by clear and convincing 

evidence that it would have terminated Fleming absent her

disclosure. To reach this conclusion, the ALJ applied the three 

factors articulated in Carr v. Social Security Administration, 185 F.3d 

1318, 1323 (Fed. Cir. 1999). We set forth the Carr factors later in 

our analysis.

Fleming petitioned the MSPB for review of the ALJ’s third 

decision. On review, the MSPB modified the ALJ’s decision 

because the ALJ erred by taking an overly restrictive view of the 

second Carr factor, but otherwise affirmed the ALJ’s decision. The

third Carr factor was not at issue. Thus, the MSPB weighed the 

first and second Carr factors and agreed with the ALJ that the 

agency had shown by clear and convincing evidence that it would 

have terminated Fleming absent her disclosure. 

B. Federal Circuit: 2016-2017

Fleming petitioned for review in the Court of Appeals for 

the Federal Circuit. See Fleming v. Dep’t of the Interior, 646 F. App’x 

994, 998 (Fed. Cir. 2016), mandate recalled and opinion vacated (Aug. 

30, 2016). In May 2016, the Federal Circuit affirmed the MSPB’s 

decision. Id. 

In July 2016, Fleming obtained an audio recording of her 

second hearing before the ALJ, which included a conversation 

between the ALJ and the court reporter, in which the ALJ discussed 

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the strength of Fleming’s case. Based on this recording, Fleming 

moved the Federal Circuit to rescind its decision and reopen her 

case. In August 2016, the MSPB moved the Federal Circuit to 

intervene and for remand. The Federal Circuit granted the MSPB’s 

motion, recalled the mandate, vacated its decision, and remanded 

the case. It denied Fleming’s motion to reopen as moot. 

On remand, the MSPB vacated its final order and remanded 

the case to a new ALJ for adjudication. 

C. Proceedings Before Second ALJ: 2017-2023

In her prehearing brief on remand, Fleming asked the new 

ALJ to rule in her favor “without further hearings.” During a 

prehearing conference on August 8, 2017, Fleming confirmed that 

she did not want another hearing, and the agency did not oppose 

her request. The new ALJ thus issued a decision based upon the 

written record. 

The new ALJ denied Fleming’s request for corrective action. 

The ALJ found that the agency proved by clear and convincing 

evidence that it would have terminated Fleming, even in the 

absence of her Dry Tortugas disclosure. The ALJ’s decision was 

based on an application of the Carr factors and addressed the 

agency’s evidence about Fleming’s conduct and performance 

issues and Fleming’s countervailing evidence. 

Fleming argued that her conduct and performance issues 

were the result of a hostile work environment that her supervisor 

Russell created in retaliation for her Dry Tortugas disclosure. 

However, the new ALJ found, inter alia, that it was “undisputed” 

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that any conflict between Russell and Fleming began shortly after 

Fleming was hired, and Fleming made her February 6, 2006 

protected Dry Tortugas disclosure only after Russell, on January 

26, 2006, notified her of the proposed suspension. Fleming’s 

proposed suspension “itself followed Ms. Russell’s prior effort to 

terminate [Fleming] in January 2006,” also before Fleming’s 

protected Dry Tortugas disclosure. As shown above, on January 6, 

2006 and then again on January 13, 2006, Russell in fact had written 

detailed summaries of Fleming’s conduct and performance issues. 

Moreover, the evidence showed that Russell’s “supervisory 

depredations” were unrelated to Fleming’s protected disclosure. 

Fleming filed a petition for review with the MSPB. The 

agency did not respond. 

In a final order, the MSPB affirmed the new ALJ’s denial of 

Fleming’s request for corrective action. The MSPB determined 

that the new ALJ reviewed the relevant documentary evidence and 

hearing testimony and considered Fleming’s arguments that her 

conduct and performance issues were the result of a hostile work 

environment. The MSPB found the key issue was not whether 

supervisor Russell mistreated Fleming (i.e., a hostile work 

environment), “but whether the alleged mistreatment occurred in 

retaliation for [Fleming’s] whistleblowing activity.” The MSPB 

determined that, even taking Fleming’s allegations about the 

alleged mistreatment of Fleming and her non-whistleblowing 

co-worker as true, the evidence of such mistreatment indicated 

supervisor Russell “treated her employees poorly regardless of 

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whether they were whistleblowers,” and thus Russell’s alleged 

treatment of Fleming was not based on her whistleblowing. 

The MSPB also concluded that “although agency officials 

involved in the termination decision may have had some motive to 

retaliate against [Fleming] for her protected disclosure, the 

evidence in support of the decision to terminate her was strong and 

there [wa]s no evidence that the agency treated nonwhistleblowing 

employees differently for similar misconduct.” 

Fleming timely filed the instant petition for review of the 

MSPB’s decision.

III. STANDARD OF REVIEW

Section 7703(b) of Title 5 provides for judicial review of 

decisions of the MSPB. 5 U.S.C. § 7703(b). The Federal Circuit 

previously had exclusive jurisdiction over petitions for review of 

MSPB decisions that involved only whistleblower claims, but in 

2012 Congress expanded that jurisdiction to include “any court of 

appeals of competent jurisdiction.” See Kelliher v. Veneman, 313 F.3d 

1270, 1274 (11th Cir. 2002); compare 5 U.S.C. § 7703(b) (effective 

Oct. 30, 1998), with 5 U.S.C. § 7703(b)(1)(B); see also Pub. L. No. 

112-199, § 108(a), 126 Stat. 1465 (2012) (codified as amended at 5 

U.S.C. § 7703(b)(1)).2 We thus now have jurisdiction over 

2 Initially, this provision was set to “sunset,” see All Circuit Review Extension 

Act, Pub. L. No. 113-170, 128 Stat. 1894 (2014), but in 2018, the All Circuit 

Review Act, Pub. L. No. 115-195, 132 Stat. 1510 (2018), permanently 

authorized the change. 

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Fleming’s petition that raises only whistleblower claims. See 5 

U.S.C. § 7703(b)(1).

Even before this expanded jurisdiction, we had jurisdiction 

over petitions for review of MSPB decisions in “mixed cases” that 

involved whistleblower claims coupled with discrimination claims. 

Kelliher, 313 F.3d at 1274. And as to whistleblower claims in those 

mixed cases, we applied the statutory, deferential standard of 

review set forth in 5 U.S.C. § 7703(c) that governs whistleblower 

claims before the Federal Circuit. See id. at 1274-75. So we now 

use that same § 7703(c) standard of review here.

Specifically, § 7703(c) provides that a court shall hold 

unlawful and set aside any agency action, findings, or conclusions 

found to be:

(1) arbitrary, capricious, an abuse of discretion, or 

otherwise not in accordance with law; (2) obtained 

without procedures required by law, rule, or 

regulation having been followed; or (3) unsupported 

by substantial evidence[.]

5 U.S.C. § 7703(c). Under this deferential § 7703(c) standard, we 

review MSPB decisions “only to ensure that the [MSPB’s] 

determination is (1) not arbitrary or capricious, (2) [not] made 

without regard to law, or (3) not based on substantial evidence.” 

Kelliher, 313 F.3d at 1276. We do not substitute our judgment for 

that of the MSPB, but rather only seek to ensure the decision was 

“reasonable and rational,” and “[w]e do not re-weigh or re-examine 

the credibility choices made by the fact finder.” Id. at 1276-77. 

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“The petitioner bears the burden of establishing reversible 

error in the [MSPB’s] final decision.” Sistek v. Dep’t of Veterans Affs., 

955 F.3d 948, 953 (Fed. Cir. 2020). 

IV. DISCUSSION

We address two threshold issues before the merits of 

Fleming’s arguments on appeal.

A. Proper Party to Appeal

Fleming named both the MSPB and the agency as 

respondents. However, only the agency that took the personnel 

action—the Department of the Interior—is properly the 

respondent. See 5 U.S.C. § 7703(a)(2). This is because 5 U.S.C. 

§ 7703(a)(2) provides as follows:

The [MSPB] shall be named respondent in any 

proceeding brought pursuant to this subsection, 

unless the employee or applicant for employment seeks 

review of a final order or decision on the merits on the 

underlying personnel action or on a request for attorney 

fees, in which case the agency responsible for taking the 

personnel action shall be the respondent.

(emphasis added). Fleming challenges the agency’s personnel 

action against her. Therefore, we dismiss the petition with respect 

to the MSPB, leaving the agency as the sole respondent.

B. Fleming’s Bias Arguments

Fleming argues that the first ALJ was biased against her, 

made improper credibility findings, and improperly weighed the 

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evidence. The MSPB found that Fleming’s concerns “were already 

addressed in the [MSPB’s] previous remand orders and resulted in 

the [MSPB] remanding the case to a different administrative judge 

in a different office for adjudication.” 

Nonetheless, in this appeal Fleming asserts that her concerns

about the first ALJ’s bias “were never properly addressed” by the 

MSPB because the second ALJ “failed to address the impact of [the 

first ALJ’s] prejudicial assessments on rulings.” While difficult to 

decipher, we understand Fleming to be arguing that because the 

creation of the agency record was overseen by an allegedly biased

ALJ, it cannot be the basis for the second ALJ denying her 

corrective action. The problem for Fleming is her argument 

ignores the fact that she asked the second ALJ to rule in her favor 

“without further hearings.” So the record created before the first 

ALJ remains the proper record that the second ALJ had to consider 

and did consider anew. Fleming’s bias arguments thus lack merit.

We now turn to the Fleming’s whistleblower claims.

C. General Principles: Whistleblower Claims

Under the the Whistleblower Protection Act (“WPA”), a 

federal agency cannot take “a personnel action with respect to any 

employee . . . because of” the employee’s disclosure of information 

that the employee reasonably believes evidences “gross 

mismanagement, a gross waste of funds, an abuse of authority, or 

a substantial and specific danger to public health or safety.” 5 

U.S.C. § 2302(b)(8). Fleming’s whistleblower activity is the 

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disclosure of toxic chemicals used on the Dry Tortugas Park 

project.

A claim for unlawful retaliation for whistleblowing is 

analyzed under a burden-shifting scheme. Whitmore, 680 F.3d at

1367. To make a prima facie case, a claimant must establish that:

(1) the acting official had the authority to take a personnel action; 

(2) the aggrieved employee made a protected disclosure; (3) the 

acting official used his authority to take a personnel action against 

the employee after she made a protected disclosure; and (4) the 

employee’s protected disclosure was a contributing factor in the 

agency’s personnel action. See Chambers v. Dep’t of Interior, 602 F.3d 

1370, 1376 (Fed. Cir. 2010).

If the claimant makes a prima facie case, the burden shifts to 

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

have taken the same personnel action in the absence of the 

protected disclosure. See 5 U.S.C. § 1221(e)(2); see also Whitmore, 

680 F.3d at 1367. To determine whether the agency has met its 

burden, the MSPB weighs the three Carr factors: (1) “the strength 

of the agency’s evidence in support of its personnel action”; (2) “the 

existence and strength of any motive to retaliate on the part of the 

agency officials who were involved in the decision”; and (3) “any 

evidence that the agency takes similar actions against employees 

who are not whistleblowers but who are otherwise similarly 

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

1999). 

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D. Fleming’s Termination

The agency does not challenge whether Fleming established 

a prima facie case as to her termination. Instead, Fleming 

challenges the MSPB’s February 10, 2023 final decision that the 

agency showed by clear and convincing evidence that it would 

have taken the same personnel action in the absence of Fleming’s

protected Dry Tortugas disclosure. Therefore, we assess only 

whether the agency met that burden. 

Here, substantial evidence supports the MSPB’s affirmance 

of the second ALJ’s finding that the agency proved by clear and 

convincing evidence that it would have terminated Fleming, 

regardless of her protected Dry Tortugas disclosure. See 5 U.S.C. 

§ 1221(e)(2); see also Whitmore, 680 F.3d at 1367. The MSPB

reviewed the second ALJ’s findings, reviewed the evidence and 

hearing testimony, and expressly considered and rejected each 

argument raised by Fleming in her petition for review. 

The standard is not what we would decide de novo, but 

whether the MSPB’s determination is supported by substantial 

evidence on the record as a whole. Parker v. U.S. Postal Serv., 819 

F.2d 1113, 1115 (Fed. Cir. 1987); see also Kelliher, 313 F.3d at 1274-75. 

Considering the three Carr factors together, the MSPB did not err 

in concluding that “[i]n sum, although agency officials involved in 

the termination decision may have had some motive to retaliate 

against [Fleming] for her protected disclosure, the evidence in 

support of the decision to terminate her was strong and there [wa]s 

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no evidence that the agency treated non[-]whistleblowing 

employees differently for similar misconduct.” 

Under the first Carr factor, the reasons for Fleming’s 

removal were supported by evidence from Culhane, Russell, and 

archivist Bailey. Fleming’s poor conduct and performance began 

shortly after she was hired, and Russell early on expressed her 

concerns about Fleming’s work to Culhane, including in a six-page 

summary dated January 6, 2006 and an 11-page summary dated 

January 13, 2006. This was before Fleming had made her protected 

Dry Tortugas disclosure. After the agency issued Fleming a 

two-day suspension, Fleming’s conduct and performance problems

continued. Bailey, an independent archivist, assessed Fleming’s 

conduct and performance and identified issues. Bailey also 

concluded that the Everglades Park might lose funding due to 

Fleming’s work performance. While Fleming presented argument 

that her conduct and performance were satisfactory and that any 

performance issues were attributable to the stress of Russell’s

hostile work environment towards her, the second ALJ determined 

“that the deciding official [Culhane] had strong reasons to credit 

[Russell’s] account of [Fleming’s] conduct and performance 

problems and their potential impact on the agency’s mission.” 

As to the second Carr factor, the MSPB noted that, based on 

their positions, Russell and Culhane “may have had a motive to 

retaliate” against Fleming, but any such motive was not strong. 

The protected disclosure did not implicate either Russell or 

Culhane because the Dry Tortugas Park authority, not Russell, was 

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responsible for the cannon painting project. Regardless, the strong 

evidence in support of the agency’s action here outweighs any 

possible motive to retaliate on the part of the agency officials who 

were involved in terminating Fleming. 

Finally, with respect to the third Carr factor, there was no 

evidence that the agency treated non-whistleblowing employees 

differently than Fleming for similar conduct. The evidence in the 

record, Fleming’s contention that Russell subjected a 

non-whistleblowing employee to the same kind of alleged 

mistreatment Fleming received, indicates that Russell’s alleged 

mistreatment of Fleming was unrelated to Fleming’s 

whistleblowing. 

Accordingly, pursuant to the deferential standard set by 

5 U.S.C. § 7703(c), the MSPB’s decision to affirm the second ALJ’s 

finding—that the agency would have fired Fleming regardless of 

her whistleblower status—appears reasonable and rational in light 

of the record. See 5 U.S.C. § 7703(c); see also Kelliher, 313 F.3d at 

1275-76. The MSPB’s conclusion was supported by substantial 

evidence, was not arbitrary or capricious, and applied the correct 

law. See Kelliher, 313 F.3d at 1276. 

E. Creation of Hostile Work Environment in Retaliation for 

Whistleblowing

On appeal, Fleming argues that Russell created a hostile 

work environment in retaliation for Fleming’s whistleblowing and 

this environment caused Fleming’s conduct and performance 

issues. The MSPB has recognized that the creation of a hostile 

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work environment is itself a personnel action for purposes of the 

WPA. Skarada v. Dep’t of Veterans Affs., 2022 MSPB 17, 2022 WL 

2253877, at *5 (M.S.P.B. 2022). 

The agency argues Fleming did not properly exhaust her 

hostile work environment retaliation claim. We need not address 

that issue because Fleming fails to show Russell created a hostile 

work environment in retaliation for her February 6, 2006 disclosure 

about the Dry Tortugas Park project. 

The MSPB affirmed the second ALJ’s finding that any 

supervisor-employee conflict arose before Fleming made her 

protected Dry Tortugas disclosure. That decision is supported by 

substantial evidence in the record. See 5 U.S.C. § 7703(c); see also 

Kelliher, 313 F.3d at 1275-76. Specifically, the MSPB agreed with the 

second ALJ’s conclusion that Fleming’s supervisor first reported 

her concerns about Fleming’s conduct to the deciding official

Culhane shortly after Fleming was hired. The MSPB also agreed 

with the second ALJ’s conclusion that Fleming’s supervisor 

detailed numerous instances of misconduct by Fleming in the 

months preceding Fleming’s Dry Tortugas disclosure. 

Accordingly, pursuant to the deferential standard set by 5 U.S.C. 

§ 7703(c), the MSPB’s treatment of Fleming’s hostile work 

environment arguments was reasonable and rational in light of the 

record. See 5 U.S.C. § 7703(c); see also Kelliher, 313 F.3d at 1275-76.

V. CONCLUSION

We dismiss Fleming’s petition for review as to the MSPB. 

We deny Fleming’s petition for review as to the agency because 

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23-10962 Opinion of the Court 21

the MSPB’s decision was not arbitrary or capricious or made 

without regard to law and was based on substantial evidence. 

PETITION DISMISSED IN PART, DENIED IN PART.

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