UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JODI E. SILBERMAN,

Appellant,

v.

DEPARTMENT OF LABOR,

Agency.

DOCKET NUMBER

CH-0752-11-0710-B-1

DATE: August 18, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Rebecca L. Salawdeh, Esquire, Wauwatosa, Wisconsin, for the appellant.

Angela Faye Donaldson and Rolesia Butler Dancy, Atlanta, Georgia, for 

the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

(RID), which found that the agency proved by clear and convincing evidence that 

it would have suspended her absent her whistleblowing activity, determined that 

she did not prove her affirmative defense of reprisal for whistleblowing activity, 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

found a nexus between the sustained misconduct and the efficiency of the service,

and upheld the 25-day suspension based on a charge and five specifications of 

unprofessional conduct. Generally, we grant petitions such as this one only 

when: the initial decision contains erroneous findings of material fact; the initial 

decision is based on an erroneous interpretation of statute or regulation or the 

erroneous application of the law to the facts of the case; the 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. See Title 5 of the Code of Federal Regulations, 

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this 

appeal, and based on the following points and authorities, we conclude that the 

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

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

the RID, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The agency suspended the appellant for 25 days based on a charge and five 

specifications of unprofessional conduct; she filed a Board appeal; and the 

administrative judge issued an initial decision that sustained the charge and five 

specifications, found that the appellant did not prove any of her affirmative 

defenses, and affirmed the 25-day suspension. Silberman v. Department of 

Labor, MSPB Docket No. CH-0752-11-0710-I-1, Initial Decision (Nov. 17, 

2011). After the appellant filed a petition for review, the Board issued a Remand 

Order, which affirmed the administrative judge’s analysis of the charge and 

affirmative defenses, with the exception of the appellant’s claim of reprisal for 

whistleblowing activity. Silberman, MSPB Docket No. CH-0752-11-0710-I-1, 

Remand Order (Apr. 19, 2013). With respect to this claim, the Board affirmed
3

the administrative judge’s conclusion that the appellant made protected 

disclosures and that the disclosures were a contributing factor to the agency’s 

action. However, the Board disagreed with the administrative judge’s conclusion 

that the agency demonstrated by clear and convincing evidence that it would have 

taken the same action even in the absence of the appellant’s whistleblowing 

activity. In particular, the Board noted that the administrative judge’s analysis 

did not comport with the decision of the U.S. Court of Appeals for the Federal 

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

which was issued after the administrative judge issued the initial decision in the 

suspension appeal. Accordingly, the Board remanded this issue for further 

adjudication, and it vacated the administrative judge’s nexus and penalty 

determinations. 

¶3 In the RID, the administrative judge evaluated the factors set forth in Carr 

v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), and 

concluded that the agency’s evidence was strong, the record “fails to demonstrate 

any motivat[ion] to retaliate by Director [S.] or any of the agency’s man[a]gers or 

employees involved in the proposal and/or decisional processes in this case,” and 

the agency provided documentation indicating that it disciplined nonwhistleblower employees for related misconduct. Silberman v. Department of 

Labor, MSPB Docket No. CH-0752-11-0710-B-1, Remand File, Tab 7, RID at 

5-23. Thus, the administrative judge found that the agency met its burden to 

prove by clear and convincing evidence that it would have suspended the 

appellant in the absence of her whistleblowing activity, and thus, the appellant 

did not prove her affirmative defense of reprisal for whistleblowing. The 

administrative judge also incorporated her prior nexus and penalty findings and 

affirmed the 25-day suspension. RID at 23. The appellant has filed a petition for 
4

review and the agency has filed a response. Remand Petition for Review (RPFR) 

File, Tabs 3, 5.

2

¶4 The appellant’s petition for review challenges most of the administrative 

judge’s findings. For instance, she contends that the administrative judge erred 

when she, among other things: (1) determined that the appellant failed to produce 

evidence that Director S. made misrepresentations to U.S. Senator Mark Kirk; 

(2) discussed the proposing official’s failure to investigate the allegations against 

the appellant; (3) failed to find that the deciding official erred when he did not 

conduct an independent investigation of the appellant’s whistleblowing 

allegations; (4) failed to address the appellant’s assertion and evidence that the 

proposal notice was in retaliation for protected EEO activity; and (5) failed to 

rule on alleged “new evidence.” She also asserts that the deciding official and the 

administrative judge improperly analyzed the relevant factors under Douglas v. 

Veterans Administration, 5 M.S.P.R. 280 (1981).

¶5 Most of the appellant’s arguments on review constitute mere disagreement 

with the administrative judge’s findings and credibility determinations and do not 

warrant full review of the record by the Board. Weaver v. Department of the 

Navy, 2 M.S.P.R. 129, 133-34 (1980). Nevertheless, we have considered all of

the appellant’s assertions on review, but none warrant reversal of the RID.

The administrative judge properly determined that the agency proved by clear and 

convincing evidence that it would have suspended the appellant in the absence of 

her whistleblowing activity, and thus, the appellant did not prove her affirmative 

defense of reprisal for whistleblowing activity. 

¶6 In order to determine whether the agency proved by clear and convincing 

evidence that it would have suspended the appellant even in the absence of her 

whistleblowing activity, the Board will consider the following factors: the 

strength of the agency’s evidence in support of its action; the existence and 

 2 For the purposes of our analysis, we regard the appellant’s October 17, 2013 

submission as her petition for review. See RPFR File, Tab 3.
5

strength of any motive to retaliate on the part of the agency officials who were 

involved in the decision; and any evidence that the agency takes similar actions 

against employees who are not whistleblowers but who are otherwise similarly 

situated. Carr, 185 F.3d at 1323.

¶7 Regarding the strength of the agency’s evidence, the Board in its Remand 

Order sustained the charge of unprofessional conduct, which included several 

specifications describing inappropriate emails that the appellant sent to agency 

employees, including an email to an agency attorney against whom the appellant 

had litigation, in which she compared the attorney’s name to the name of a victim 

of a mass shooting. We have also considered the administrative judge’s analysis 

of the appellant’s assertion that the proposing and deciding officials failed to 

properly investigate the allegations against her before the agency proposed her 

removal and effected her suspension and that the deciding official failed to 

investigate her whistleblowing allegations. See RID at 5-10. Importantly, the 

administrative judge credited the testimony of the proposing and deciding 

officials based in part on witness demeanor. See RID at 7, 9. The Board must 

give deference to an administrative judge’s credibility determinations when they 

are based, explicitly or implicitly, on the observation of the demeanor of 

witnesses testifying at a hearing; the Board may overturn such determinations 

only when it has “sufficiently sound” reasons for doing so. Haebe v. Department 

of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant has not 

demonstrated such sufficiently sound reasons. For these reasons, we agree that 

the agency’s evidence was strong.

¶8 Regarding the existence and strength of retaliatory motive, the RID reflects 

the administrative judge’s conscientious consideration of the record evidence. 

The administrative judge made additional demeanor-based credibility 

determinations regarding the proposing and deciding officials, Director S., and 

other agency employees, including employees outside of the appellant’s chain of 

command who had “some involvement” in the proposal and decision letters. See 
6

RID at 11-21; see also Whitmore, 680 F.3d at 1371 (cautioning that “an agency 

official’s merely being outside that whistleblower’s chain of command, not 

directly involved in alleged retaliatory actions, and not personally named in the 

whistleblower’s disclosure is insufficient to remove the possibility of a retaliatory 

motive or retaliatory influence on the whistleblower’s treatment”). The appellant 

has not made any persuasive arguments to challenge these findings. We also 

discern no error with the administrative judge’s conclusion that “there [was] 

absolutely no evidence in the record to suggest a concerted effort [by these 

agency employees] to retaliate against the appellant” or that any of the agency 

employees who had some involvement in the proposal or decision letters were 

motivated to retaliate against the appellant based on her whistleblowing activity. 

RID at 21. 

¶9 On review, the appellant appears to challenge the administrative judge’s 

statement in the RID that there was no evidence to suggest a pattern of agency 

retaliation or a hostile work environment in response to her whistleblowing 

activity. RPFR File, Tab 3 at 26-27; see RID at 23 (discussing evidence that the 

agency takes similar actions against non-whistleblowers). The appellant appears 

to state that the administrative judge failed to consider, among other evidence, her 

2006 “partially meets” performance review, her 2007 arrest at the agency, the fact 

that she has been in “continuous litigation” with the agency since that time, and 

that agency attorney R.V. sent emails to other employees asking for any 

unprofessional emails that the appellant sent to them. RPFR File, Tab 3 at 26-27. 

We note that the appellant’s 2006 performance review and her 2007 arrest 

predated the disclosures in this matter. Moreover, in the RID, the administrative 

judge referenced the appellant’s arrest and ongoing litigation with the agency, 

and the administrative judge noted that the appellant’s contention about R.V. was 

validated by the record evidence. See RID at 6, 8, 15-16, 20. We are not 

persuaded that the remaining evidence cited by the appellant warrants a different 

outcome. We also discern no error with the administrative judge’s conclusion 
7

that the agency demonstrated that it disciplined other non-whistleblower 

employees for similar misconduct. See RID at 22-23.

¶10 Regarding her assertion that the administrative judge failed to address the 

appellant’s evidence regarding the agency’s “stonewalling” to Senator Kirk and 

Director S.’s “complicity in the stonewalling,” RPFR File, Tab 3 at 28, the RID 

reflects the administrative judge’s consideration of the agency’s communications 

with Senator Kirk, see, e.g., RID at 5, 11-12, 15-16, and we do not share the 

appellant’s view that the agency engaged in “stonewalling.” We also agree with 

the administrative judge that the evidence does not reflect that the agency made 

misrepresentations to Senator Kirk. See RID at 12.

¶11 In sum, we have considered the appellant’s arguments on review, but we 

find that she has not set forth a basis to disturb the administrative judge’s 

findings and credibility determinations. 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 where the administrative judge considered the 

evidence as a whole, drew appropriate inferences, and made reasoned 

conclusions); Broughton v. Department of Health & Human Services, 33 M.S.P.R. 

357, 359 (1987). We therefore discern no error with the administrative judge’s 

conclusion that the agency proved by clear and convincing evidence that the 

agency would have suspended the appellant even in the absence of her 

whistleblowing activity, and thus, that the appellant did not prove this affirmative 

defense. 

The administrative judge properly affirmed the 25-day suspension. 3

¶12 The Board will review an agency-imposed penalty only to determine if the 

agency considered all the relevant factors and exercised management discretion 

within tolerable limits of reasonableness. Douglas, 5 M.S.P.R. at 306. On 

 3 The appellant does not appear to specifically challenge the administrative judge’s 

nexus determination on review, and we discern no error with the administrative judge’s 

analysis in this regard.
8

review, the appellant asserts that the deciding official did not consider as a 

positive factor her length of service, prior performance awards, dedication to her 

job, reliable work attendance, and the fact that she and the agency have been 

“involved in continuous litigation since 2006.” RPFR File, Tab 3 at 30-33. The 

decision letter indicates that the deciding official considered her length of service 

and her prior performance. See MSPB Docket No. CH-0752-11-0710-I-1, Initial 

Appeal File (IAF), Tab 14, Subtab 4B. Moreover, the deciding official testified 

that he considered the appellant’s assertion that job-related tension or stress was a 

mitigating factor, but he concluded that “what was going on did not rise to the 

level of mitigation.” IAF, Hearing Transcript at 196-97. It does not appear that 

the deciding official specifically considered the appellant’s dedication to her job 

and reliable work attendance, but we are not persuaded that such an omission is 

fatal to the penalty analysis. 

¶13 The administrative judge found that the agency’s decision to suspend the 

appellant for 25-days based on the sustained misconduct did not clearly exceed 

the limits of reasonableness. In particular, the administrative judge noted the 

appellant’s lack of remorse, and she stated that the agency understandably had 

concerns about the appellant’s ability to conduct herself in a professional manner. 

On review, the appellant states that the Board has determined that remorse after 

an agency initiates discipline generally warrants little, if any, weight, and she 

cites Singletary v. Department of the Air Force, 94 M.S.P.R. 553, ¶ 15 (2003), as 

support for this proposition. RPFR File, Tab 3 at 33. There is no indication that 

the administrative judge gave the appellant’s lack of remorse undue weight. We 

view the administrative judge’s single reference to the appellant’s lack of remorse 

in this context as support for her conclusion that the charge was serious and 

merited a 25-day suspension. Based on our review of the record, including the 

serious nature of the allegations, the frequency of the misconduct, the appellant’s 

prior disciplinary history, her length of service, and all relevant mitigating and 
9

aggravating factors, we agree with the administrative judge’s decision to uphold 

the 25-day suspension.

Other issues

¶14 We need not address the appellant’s assertion on review that the 

administrative judge failed to address her argument that the deciding official and 

Director S. did not investigate her allegation that the proposal was retaliation for 

equal employment opportunity (EEO) activity. See RPFR File, Tab 3 at 16-22. 

Importantly, the Board in its Remand Order already affirmed the administrative 

judge’s analysis of the appellant’s other affirmative defenses, including her claim 

of retaliation for EEO activity. 

¶15 The appellant also alleges on review that several incidents that occurred on 

June 26, 2012, and thereafter, show a “retaliatory motive” on the agency’s part. 

RPFR File, Tab 1 at 27-28. We note that these incidents allegedly occurred well 

after the initial decision in the suspension appeal was issued on November 17, 

2011. Moreover, the appellant appears to have raised this evidence in her 

subsequent petition for review submissions in the suspension appeal because the 

Board noted in its Remand Order that such issues were not relevant to the issues 

to be decided in that matter. See Remand Order at 3, n.3. We need not consider 

such evidence on review in this remand appeal.

4

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision. There 

are several options for further review set forth in the paragraphs below. You may 

choose only one of these options, and once you elect to pursue one of the avenues 

 4 On review, the appellant includes a redacted copy of the Findings of the Midwest 

Region Investigation. See RPFR File, Tab 3, Exhibit 1. Evidence that is already a part 

of the record is not new. Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 

(1980). Thus, we need not consider this evidence on review.
10

of review set forth below, you may be precluded from pursuing any other avenue 

of review. 

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination claims 

by the Equal Employment Opportunity Commission (EEOC). See Title 5 of the 

United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit 

your request 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 your request 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, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after 

your receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with EEOC no 

later than 30 calendar days after receipt by your representative. If you choose to 

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your 

discrimination claims, you may file a civil action against the agency on both your 

discrimination claims and your other claims in an appropriate United States 

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with 

the district court no later than 30 calendar days after your receipt of this order. If 

you have a representative in this case, and your representative receives this order 
11

before you do, then you must file with the district court no later than 30 calendar 

days after receipt by your representative. If you choose to file, be very careful to 

file on time. If the action involves a claim of 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.

Other Claims: Judicial Review

If you do not want to request review of this final decision concerning your 

discrimination claims, but you do want to request review of the Board's decision 

without regard to your discrimination claims, you may request review of this final 

decision on the other issues in your appeal by the United States Court of Appeals 

for the Federal Circuit. 

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the United States Court of Appeals 

for the Federal Circuit or by any court of appeals of competent jurisdiction. The 

court of appeals must receive your petition for review within 60 days after the 

date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If 

you choose to file, be very careful to file on time.
12

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode/htm. 

Additional information about the United States Court of Appeals for the Federal 

Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular 

relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is 

contained within the court's Rules of Practice, and Forms 5, 6, and 11. 

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

respective websites, which can be accessed 

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

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

the United States Court of Appeals for the Federal Circuit, you may visit our 

website at http://www.mspb.gov/probono for a list of attorneys who have 

expressed interest in providing pro bono representation for Merit Systems 

Protection Board appellants before the Federal Circuit. The Merit Systems 

Protection Board neither endorses the services provided by any attorney nor 

warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board