NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit
05-3314 NANDINEE K. KUTTY, Petitioner,

v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Respondent.

__________________ _________ DECIDED: January 12, 2006

__________________ _________ Before LOURIE, RADER, and LINN, Circuit Judges

. PER CURIAM. The Merit Systems Protection Board (Board) denied Nandi nee K. Kutty’s request for corrective action followin g her termination as a probationary employee. Ms. Kutty alleges that her termination was a response to “protected disclosures” that she had made to Ho using and Urban Development’s (HUD) procurement counsel “related to violations of laws, rules or regulations and abuse of authority” by her supervisors. To the contrary, HUD terminated Ms. Kutty for specific instances of disrespectful c onduct toward her supervisor, and egregious conduct toward a co-worker. Because the record supports the Board’s decision, this court affirms

.DISCUSSI ON This court must affirm a Board decision unless it is: “(1) arbitrary or capricious, an abuse of discretion, or ot herwise not in accordance with the law; (2) obtained without procedure required by law, rule, or r egulation hav ing been followed; or (3) unsupported by subst antial evidenc e.” 5 U.S.C. § 7703(c ) (1996); Hayes v. Dep’t of Navy , 727 F.2d 1535, 1537 (Fed. Cir. 1984). Ms. Kutty began serv ing a one-y ear probationary period as an economist with the Office of Policy Development & Research, Financial I n stitutions and Regulation Division, in the Office of Economic Affa irs of the Department of Housing and Urban Development (the Agen cy), in December 2001. She was removed by the Agency the following September 16. The Agency cited the following s pecific incidents as reasons fo r her removal: disrespec tful conduc t to her supervisor in an ema il message on Sept ember 4, 2002; disres pectful conduct including public humiliation of her super visor at a meeting on September 6, 2002; and egregious behavior toward a co-worker on September 13, 2002. The record shows, for example, that Ms. Kutty criticized her supervisor’s conduct as unethical and as a violation of rules. S he also accused him of using intimidation and force, and of lack of competence in managing procurements. These c h arges came in e-mails dated September 4. The record also s hows that in a September 6 meeting Ms. Kutty accused he r supervis o r of partiality toward one of the proposers and st ated t hat “the c o mpositio n of the panel was not acceptable. ”

05-3314 2After a hearing, the Board issued a final decision that the Agency had established by clear and conv incing evi denc e that it would have terminated Ms. Kutty during her probationary period in the absence of any whistleblowing. Kutty v. Dep’t of Housing & Urban Dev

. , No. DC-1221-03-0210-B-1 (M.S

. P.B. July 14, 2005). The administrative judge consider ed the written record, as well as testimony of the participants in t he inci dent s. She evaluated the proper factors: strength of the evidence, the existence and strength of any motive to retaliate for alleged whistle-blowing action on the part of the Age n cy officia l s involved, and evidenc e t hat the Agency takes similar actions against employees who ar e not whistleblowers but who are ot herwise similarly situated. See Carr v. Soc. S e c. Admin. , 185 F.3d 1318, 1323 (Fed. Cir. 1999). Be cause the administrative judge correctly performed the “a ppropriate test for determi ning whether, in a given case, an agency has carried it s burden of establish i ng by clear and conv incing evidenc e that it would have taken the pers onnel action at issue in the absence of the disciplined employee's pr otected disclosure(s),” id. , this court affirms.

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