NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

SARAH MURRAY, PH.D.,

Petitioner

v.

DEPARTMENT OF THE ARMY,

Respondent

______________________ 

2021-1560

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DA-1221-18-0518-W-2.

______________________ 

Decided: August 31, 2021 

______________________ 

SARAH MURRAY, APO, 09180 AE, Germany, pro se. 

 MATTHEW JUDE CARHART, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by 

BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., FRANKLIN E.

WHITE, JR. 

 ______________________ 

Before MOORE, Chief Judge, PROST and TARANTO, Circuit 

Judges.

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2 MURRAY v. ARMY

PER CURIAM. 

Sarah J. Murray petitions for review of the Merit Systems Protection Board’s (“Board”) decision sustaining her 

termination of employment by the Department of the Army

(“Army”) for unprofessional conduct during a probationary 

trial period. See Murray v. Dep’t of the Army, No. DA-1221-

18-0518-W-2 (M.S.P.B. Oct. 5, 2020) (decision available at 

App. 7–591). We affirm. 

BACKGROUND

On January 11, 2016, the Army hired Ms. Murray as a

Supervisory Nurse, stationed at the U.S. Army Institute of 

Surgical Research, Burn Center & Clinical Division, Fort 

Sam Houston, Texas. App. 8. Ms. Murray’s employment 

was subject to a three-year probationary period, ending 

January 10, 2019, to allow for “an adequate period of time 

to fully evaluate [her] ability to complete a research cycle 

and/or to fully evaluate [her] contribution and conduct.” 

App. 8–9. As a Supervisory Nurse, Ms. Murray was expected “to maintain working relationships and a healthy 

work environment,” among other responsibilities. App. 9. 

On March 13, 2018 (within the probationary period), 

Ms. Murray’s supervisor, Major Thomas G. Robinson, Assistant Deputy Commander of Nursing, issued a letter to 

Ms. Murray terminating her employment. App. 60–61; see

App. 10. Major Robinson’s letter informed Ms. Murray 

that “[o]n several occasions” she had “demonstrated inappropriate, discourteous, and/or unprofessional behavior towards supervisors and coworkers” and that her conduct 

“ha[d] caused disruption in the workplace.” App. 60. The 

letter noted that Ms. Murray had been previously counseled regarding her behavior but that her “ability to handle 

stressful situations in a professional manner has not 

1 “App.” refers to the appendix filed with the Army’s 

response brief. 

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MURRAY v. ARMY 3

improved.” App. 60. The letter concluded that “the inadequacies” of Ms. Murray’s conduct “demonstrate a breach of 

minimally acceptable standards for a Supervisory Nurse” 

and that Ms. Murray had not demonstrated “fitness for 

continued employment” in that role. App. 60. 

Ms. Murray subsequently filed a complaint with the

U.S. Office of Special Counsel (“OSC”) alleging that the 

Army terminated her employment in retaliation for protected whistleblowing disclosures. See App. 67. On July 3, 

2018, OSC issued a closure letter informing Ms. Murray 

that it had terminated its inquiry into her complaint of retaliation. See App. 67–68. 

Ms. Murray then initiated an individual right of action 

(“IRA”) appeal before the Board requesting corrective action under the Whistleblower Protection Act of 1989 and 

the Whistleblower Protection Enhancement Act of 2012. 

See App. 7–8. Like her OSC complaint, Ms. Murray’s IRA 

appeal alleged that the Army terminated her employment 

in reprisal for protected whistleblowing. See App. 10–11. 

The administrative judge assigned to the case found that 

Ms. Murray had “established a prima facie case of whistleblowing retaliation.” App. 29 (emphasis omitted). But the

administrative judge further found that the Army had “met 

its burden of producing clear and convincing evidence . . . 

that it would have terminated [Ms. Murray’s employment] 

absent her protected disclosures and activity” and denied 

Ms. Murray’s request for corrective action on that basis. 

App. 50. The administrative judge’s initial decision became the final decision of the Board. See App. 51, 55. 

Ms. Murray now petitions for review of the Board’s decision. We have jurisdiction under 28 U.S.C. § 1295(a)(9). 

DISCUSSION

Our review of Board decisions is limited. Whiteman v. 

Dep’t of Transp., 688 F.3d 1336, 1340 (Fed. Cir. 2012). A 

final decision of the Board must be affirmed unless it is 

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4 MURRAY v. ARMY

“(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 also Potter v. Dep’t of Veterans Affs., 

949 F.3d 1376, 1379 (Fed. Cir. 2020). We review the 

Board’s legal determinations de novo and its factual findings for substantial evidence. Archuleta v. Hopper, 

786 F.3d 1340, 1346 (Fed. Cir. 2015). Substantial evidence 

is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol. Edison 

Co. v. NLRB, 305 U.S. 197, 229 (1938). 

If an agency employee establishes as a prima facie case

that a protected disclosure contributed to her removal, the 

burden shifts to the agency to establish by clear and convincing evidence that it would have taken the removal action even in the absence of the protected disclosure. 

5 U.S.C. § 1221(e)(2); see Kewley v. Dep’t of Health & Hum. 

Servs., 153 F.3d 1357, 1363 (Fed. Cir. 1998). In assessing 

whether an agency has met its burden, the Board considers 

three 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 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. See Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 

(Fed. Cir. 1999). But “Carr does not impose an affirmative 

burden on the agency to produce evidence with respect to 

each and every one of the three Carr factors to weigh them 

each individually in the agency’s favor.” Whitmore v. Dep’t 

of Labor, 680 F.3d 1353, 1374 (Fed. Cir. 2012). Rather, 

“[t]he factors are merely appropriate and pertinent considerations for determining whether the agency carries its 

burden of proving by clear and convincing evidence that the 

same action would have been taken absent the whistleblowing.” Id. The “absence of any evidence” relating to one 

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MURRAY v. ARMY 5

factor “can effectively remove that factor from the analysis.” Id. 

Here, Ms. Murray challenges the evidence and the 

Board’s reasoning with respect to the Carr factors.2 See

Appellant’s Br. 2–6. But, as discussed below, we see no basis to disturb the Board’s decision, which properly applied 

the Carr framework and addressed each factor in detail in 

view of the record before the Board. See App. 29–50. 

First, substantial evidence supports the Board’s finding that factor one “strong[ly]” weighed in the Army’s favor 

in that Ms. Murray “engaged in multiple hostile and unprofessional encounters with agency employees in public 

areas of the hospital.” App. 43. In support, the Board relied on testimony from multiple witnesses, including

Ms. Murray, Major Robinson, Major Laura Kraemer (who 

worked in the Army’s Department of Education), and Michael (Mika) Barba (a clinical nurse specialist). See, e.g., 

App. 30–35, 37–38. For example, Major Kraemer contemporaneously documented that Ms. Murray “verbally assault[ed] and attack[ed] [her]” with respect to a training 

session and testified that Ms. Murray’s conduct concerning

the training session was “completely unprofessional.” 

App. 32. The Board found Major Kraemer’s testimony to 

be “credible, unbiased, and consistent with her earlier written account of the confrontation.” App. 33. The Board further found Ms. Murray’s denial of this “unprofessional 

confrontation” with Major Kraemer “not credible.” 

App. 33. As another example, the Board credited 

Ms. Barba’s testimony concerning Ms. Murray’s unprofessional behavior in the workplace. App. 34. And the Board

could “discern no hostility by Kraemer or Barba which 

could have precipitated [Ms. Murray’s] conduct.” App. 39. 

Indeed, the Board found that “[w]ith respect to 

2 We have also considered Ms. Murray’s “Memorandum in Lieu of Oral Argument” (ECF No. 20). 

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6 MURRAY v. ARMY

[Ms. Murray’s] unprofessional confrontations with her coworkers, none were with a person who was the subject of 

her protected disclosures or who [Ms. Murray] claimed 

treated her poorly because of her whistleblowing activity.” 

App. 39. 

Second, substantial evidence supports the Board’s finding with respect to factor two of “only mild” or “only moderate” indications of retaliatory motive. See App. 45, 48. 

For example, the Board “considered [that] Robinson was 

relatively new to the organization and was generally unaware of [Ms. Murray’s] [protected] disclosures and activity”

and “found credible Robinson’s testimony that he only considered [Ms. Murray’s] misconduct occurring while he was 

her supervisor [in taking removal action].” App. 45–46. As 

another example, the Board credited Major Robinson’s testimony that he had already decided on removal before 

learning of Ms. Murray’s protected activity. App. 48. Indeed, it appears that the Board’s finding of even “some” retaliatory motive was based only on Ms. Murray’s “criticism 

of management” “in general.” App. 46. 

Third, the Board found that factor three was “not a significant factor in this [case]” because there was “no evidence to show that [similarly situated] employees engaged 

in similar misconduct and were not similarly terminated 

during their probationary periods.” App. 50. On appeal, 

Ms. Murray argues that this factor instead should have favored her because Lieutenant Colonel Robin Smith (who 

was a supervisor in the Burn Center) displayed “far worse 

[conduct than Ms. Murray] for a longer period of time but

. . . was not a whistleblower and was not removed.” Appellant’s Br. 4. But the Board relied on the undisputed fact 

that “Smith was an active-duty member of the military and 

[Ms. Murray] was a probationary civilian employee” to 

properly conclude that “[Ms. Murray] and Smith are not 

similarly situated.” App. 50; see Carr, 185 F.3d at 1327 

(certain employees not similarly situated where the 

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MURRAY v. ARMY 7

different employee groups “were supervised under separate chains of command”). 

The Board then “[w]eigh[ed] the three Carr factors” 

and concluded, primarily on the “strong basis” of factor one, 

that the Army had met its burden of producing clear and 

convincing evidence that it would have terminated 

Ms. Murray’s employment even absent her protected disclosures and activity. App. 50. As discussed, substantial 

evidence supports the Board’s analysis of each factor. And

it was not improper for the Board to have based its conclusion in this case on the strength of factor one given its findings with respect to the other two factors. See Whitmore, 

680 F.3d at 1374. Accordingly, we conclude that the 

Board’s ultimate determination under the Carr factors is 

in accordance with the law and supported by substantial 

evidence. 

CONCLUSION

We have considered Ms. Murray’s remaining arguments but find them unpersuasive. For the reasons above, 

we affirm the Board’s decision. 

AFFIRMED

COSTS

No costs. 

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