NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

EARLENE JOHNSON,

Petitioner, 

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent.

______________________ 

2014-3076

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. CH-1221-11-0328-W-1.

______________________ 

Decided: July 14, 2014

______________________ 

EARLENE JOHNSON, of Saint Louis, Missouri, pro se. 

RYAN M. MAJERUS, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, of Washington, DC, for respondent. With him on 

the brief were STUART F. DELERY, Assistant Attorney 

General, ROBERT E. KIRSCHMAN, JR., Director, and 

DEBORAH A. BYNUM, Assistant Director. 

______________________ 

Before LOURIE, BRYSON, and CHEN, Circuit Judges.
2 JOHNSON v. DVA

PER CURIAM. 

Earlene Johnson (“Johnson”) appeals from the final 

decision of the Merit Systems Protection Board (“the 

Board”) denying her request for corrective action after the 

Department of Veterans Affairs (“VA”) terminated her 

employment during her probationary period. See Johnson 

v. Dep’t of Veterans Affairs, No. CH-1221-11-0328-W-1 

(M.S.P.B. Oct. 12, 2011) (“Initial Decision”); (M.S.P.B. 

Jan. 22, 2014) (“Final Order”). Because the Board did not 

err in denying Johnson’s request for corrective action and 

substantial evidence supported the Board’s decision, we 

affirm. 

BACKGROUND

Johnson worked as a VA Medical Supply Technician 

in the Supply, Processing, and Distribution Department 

(“SPD”), which is responsible for sterilizing medical 

instruments. She was hired in December 2008 and removed from employment in November 2009 during her 

one-year probationary period. Johnson was supervised by 

Joyce Richardson, the Assistant Chief Medical Supply 

Technician, who was supervised by Catherine Miller. 

In early March 2009, Johnson overheard a telephone 

conversation between Richardson and Miller concerning 

plans for the on-site VA Dental Clinic to begin sterilizing 

its own medical instruments. Johnson relayed that

information to her fellow SPD employees because the 

Dental Clinic had previously sent dental instruments that 

had not been properly cleaned to the SPD. Johnson and 

other SPD employees expressed their concerns about the 

Dental Clinic’s improper cleaning to Richardson and 

Miller. 

In April 2009, Johnson suffered an on-the-job injury, 

which necessitated reassignment to other departments in 

various light-duty positions. During that period of lightduty assignments, Johnson occasionally had to be further 
JOHNSON v. DVA 3

transferred due to disruptive behavior. This disruptive 

behavior included comments about Richardson, bad

language, and instances where she intimidated other 

employees. In August 2009, Johnson disclosed to Miller 

that Richardson was harassing her, including threatening 

to fire Johnson and talking to other employees about 

wanting to get rid of her. Miller acknowledged deficiencies in Richardson’s leadership skills and management 

style and offered to have Johnson and Richardson participate in Alternate Dispute Resolution, but Johnson declined. 

On November 24, 2009, Johnson was removed for 

unprofessional behavior. In February 2010, Johnson filed 

an Equal Employment Opportunity Commission 

(“EEOC”) complaint. In August 2010, Johnson filed a

separate complaint with the Office of Special Counsel

(“OSC”), alleging that she was fired in retaliation for 

whistleblowing. After OSC notified Johnson that it had 

terminated its investigation, she appealed to the Board. 

In September 2011, the Administrative Judge (“AJ”) 

held a hearing and in October 2011, issued a decision 

denying Johnson’s request for corrective action. Initial 

Decision at 2. The AJ found that Johnson’s disclosures 

were not protected disclosures under the Whistleblower 

Protection Act (“WPA”) because Johnson’s disclosures: (1) 

were general complaints to Richardson made by several 

SPD employees, including Johnson, about the Dental 

Clinic’s sloppy work that lacked specificity and detail, and 

(2) were not information that Miller and Richardson did 

not already know. Id. at 13–14. 

However, the AJ found that Johnson had made a protected disclosure concerning Richardson’s abuse of authority, viz., her harassment of Johnson, id. at 14, and that 

the disclosure was a contributing factor in the VA’s decision to terminate Johnson’s employment, id. at 15. The 

AJ nevertheless concluded that, despite the protected 
4 JOHNSON v. DVA

disclosure, the VA had presented clear and convincing

evidence that it had fired Johnson for her unprofessional 

conduct and would have fired her regardless of Johnson’s 

protected disclosure. Id. at 19–20. 

Johnson petitioned for review by the full Board, which 

was denied. Final Order 1–2. The Board found that even 

though Johnson’s disclosures relating to dental instrument sterilization may have qualified as protected disclosures, the VA had presented clear and convincing 

evidence that it would have taken the same personnel 

action in the absence of the protected disclosures. Id. at 

6. Except for the above modifications, the initial decision 

of the AJ was adopted as the decision of the full Board. 

Id. at 8.

Johnson appealed to this court. We have jurisdiction 

pursuant to 28 U.S.C. § 1295(a)(9).

DISCUSSION

The scope of our review in an appeal from a Board decision is limited. We can only set aside the Board’s decision if it was “(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); see Briggs v. 

Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003). 

The Board’s decision is supported by substantial evidence

“if it is supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096

(Ct. Cl. 1981) (internal quotation marks omitted).

Johnson argues that the Board did not take into account a supplemental investigation conducted by the 

Office of Resolution Management and that the Board did 

not apply the Whistleblower Protection Enhancement Act 

of 2012. The government responds that the supplemental 
JOHNSON v. DVA 5

investigation was ordered pursuant to a separate EEOC 

complaint that Johnson filed alleging several discrimination claims that are not relevant to the current appeal. 

The government further contends that the Board correctly 

applied the WPA and determined that the VA had presented clear and convincing evidence that it would have 

removed Johnson for unprofessional conduct despite the 

protected disclosures. 

We agree with the government. The supplemental investigation concerned separate allegations before the 

EEOC that were not before the Board. Although the 

Board recognized that Johnson had filed an EEOC complaint, see Initial Decision at 4, the administrative proceedings before the EEOC were not relevant to Johnson’s 

appeal before the Board. Cf. Spruill v. Merit Sys. Prot. 

Bd., 978 F.2d 679, 692 (Fed. Cir. 1992) (noting that Congress desired discrimination complaints to be appealed to 

the EEOC to “avoid[] duplication of effort [which] conserves governmental resources and avoids potentially 

conflicting procedures or outcomes”). Accordingly, the 

Board did not err in failing to consider the allegations or 

factual findings in the EEOC complaint. 

Although Johnson alleges that the Board misapplied 

the WPA, she does not explain in what way the Board 

applied the wrong law and how any alleged error would 

have affected her appeal. Here, the Board carefully 

analyzed the various disclosures and found that they

were, or could have been, protected. Initial Decision at 

14; Final Order at 6. However, the Board further found 

that despite the protected disclosures, the VA had presented clear and convincing evidence that it would have 

fired Johnson due to unprofessional conduct, including 

her comments regarding Richardson, her language, and 

instances in which she intimidated other employees. 

Final Order at 6–8. Substantial evidence thus supports 

the Board’s denial of Johnson’s request for corrective 

action. 
6 JOHNSON v. DVA

Additionally, although Johnson contends that the 

Board misapplied the Whistleblower Protection Enhancement Act of 2012, presumably because the AJ 

applied the then-current WPA in its 2011 decision, the 

Board specifically modified the AJ’s initial decision to 

include the dental instrument sterilization disclosures 

because “the fact that the information in question may 

have been already known, previously disclosed, or disclosed to either a supervisor or person who participated in 

the activity . . . does not in and of itself prevent it from 

being considered a protected disclosure under the provisions of the Whistleblower Protection Enhancement Act of 

2012, . . .” Id. at 6. Nevertheless, even though the Board 

found the disclosure to be protected, it agreed that the VA 

established by clear and convincing evidence that it would 

have removed the appellant absent that protected disclosure, id., which we have concluded was supported by 

substantial evidence. The Board thus did not err in its 

consideration of the Whistleblower Protection Enhancement Act of 2012. 

We have considered Johnson’s remaining arguments 

and conclude that they are without merit. For the foregoing reasons, the decision of the Board is affirmed.

AFFIRMED

COSTS

No costs.