NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

JULIE E. PEARSON, 

Petitioner, 

v. 

DEPARTMENT OF VETERANS AFFAIRS, 

Respondent. 

__________________________ 

2011-3104 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case no. CH1221090692-W-1. 

__________________________ 

Decided: December 13, 2011 

__________________________ 

JULIE E. PEARSON, of Monroe, Louisiana, pro se. 

CHRISTOPHER A. BOWEN, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With 

him on the brief were TONY WEST, Assistant Attorney 

General, JEANNE E. DAVIDSON, Director, and TODD M.

HUGHES, Deputy Director. 

__________________________ 
2 PEARSON v. VA

Before BRYSON, CLEVENGER, and LINN, Circuit Judges. 

PER CURIAM. 

Julie E. Pearson (“Pearson”) appeals from a final decision of the Merit Systems Protection Board (“Board”) 

denying her request to correct her termination under the 

Whistleblower Protection Act, 5 U.S.C. § 1212 (“the Act”). 

Pearson v. Dep’t of Veterans Affairs, No. CH-1221-09-0692 

(Apr. 27, 2010) (“Initial Decision”), reh’g denied, (Feb. 2, 

2011) (“Final Order”). For the reasons discussed below, 

this court affirms. 

BACKGROUND

On September 28, 2008, the Department of Veterans 

Affairs (“VA” or “agency”) hired Pearson as a probationary 

appointee at the Veterans Affairs Illiana Health Care 

System in Danville, Illinois (“VAIHCS”). Pearson was 

hired as an Architect and her responsibilities included 

facility planning and assisting with the layout and design 

of office spaces. While Pearson was employed at VAIHCS, 

she reported to Troy Field (“Field”), Chief of Planning 

Design. Field reported to Dan Murrell (“Murrell”), Chief 

of Engineering Services. Murrell reported to Diana 

Carranza (“Carranza”), Associate Director. Carranza 

reported to Michael Hamilton (“Hamilton”), the Director. 

Pearson admits that she did not get along with 

Murrell, her supervisor’s superior, and others in the office 

were aware of the “personality conflict” between Pearson 

and Murrell. One month after starting work for VAIHCS, 

on October 28, Pearson began looking for a new job. On 

November 7, Pearson admits that she decided to resign 

but that she “would try to stay for [a] meeting with [the] 

Director.” Later that day, Pearson sent a long email to 

Murrell, Carranza, and others on a “furnishing committee” in which she berated Murrell and Carranza. Eight 

minutes after sending the email, Pearson went to Field 

and admitted that the email was “abrasive, volatile, 

possibly inappropriate” and that “[she] expect[ed] to be 
 PEARSON v. VA 3

fired over it.” On November 10, 2008, the VA terminated 

Pearson, effective November 22, because of her “disrespectful and unprofessional interactions with management.” 

On December 27, 2008, Pearson filed a complaint with 

the Office of Special Counsel asserting that her discharge 

was retaliatory. Pearson alleged, as the basis for her 

claim under the Act, that VAIHCS staff retaliated against 

her for disclosures protected by the Act. In addition to the 

cast of characters mentioned above, Pearson’s allegations 

also involve Ed DeMoss (“DeMoss”), an electrician, and 

Janet Thompson (“Thompson”), an interior designer. On 

March 30, 2009, the Office of Special Counsel terminated 

its inquiry because it found insufficient evidence to support her allegations against the agency. Pearson filed a 

timely individual right of action appeal to the Board on 

June 6, 2009. 

The Board distilled four possible protected disclosures 

made by Pearson: (1) an October 16, 2008, disclosure to 

Field of improper procurement policies and threats 

against Pearson by Murrell; (2) a November 5, 2008, 

disclosure to Field regarding Murrell’s alleged threat to 

Pearson’s employment in response to her request to meet 

with Director Hamilton; (3) a November 7, 2008, disclosure to Field of harassment by DeMoss for Murrell’s 

benefit; and (4) a November 7, 2008, disclosure to Field 

regarding procurement violations and threats by Carranza and Murrell. Initial Decision at 6-7. 

The Board held a three day hearing and ultimately 

denied her request for correction under the Act. Initial 

Decision at 2. In its decision, the Board analyzed each 

alleged disclosure and concluded that none of them were 

protected disclosures under 5 U.S.C. § 2302(b)(8). Initial 

Decision at 5-23. Specifically, the Board concluded that 

Pearson’s disclosures were vague and conclusory allegations of wrongdoing, disclosures made in the normal 

performance of Pearson’s duties, or simply frustrations 
4 PEARSON v. VA

expressed about Murrell’s management decisions, and 

that none of these were protected disclosures under the 

Act. See id. Additionally, the Board concluded that even 

if Pearson had established that a protected disclosure was 

a contributing factor in her termination, the VA demonstrated by clear and convincing evidence that it would 

have terminated Pearson’s probationary employment 

even in the absence of Pearson’s disclosures. Initial 

Decision at 23-27. The full Board, on rehearing, denied 

Pearson’s claim. Final Order at 8. Pearson appeals from 

the Board’s final decision and we have jurisdiction under 

28 U.S.C. § 1295(a)(9). 

DISCUSSION

This court must affirm the Board’s decision unless it 

is “(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). 

Pearson challenges the Board’s decision on three 

grounds: (1) the Board erred in finding that Pearson failed 

to prove that she made any protected disclosures, (2) the 

Board erred in finding that she would have been terminated anyway, and (3) the Board erroneously excluded 

disclosures, erroneously dismissed disclosures, and engaged in ex parte communications with the agency. Each 

challenge is addressed in turn. 

1. Protected Disclosure 

“The purpose of the Whistleblower Protection Act is to 

encourage disclosure of wrongdoing to persons who may 

be in a position to act to remedy it . . . .” Horton v. Dep’t of 

the Navy, 66 F.3d 279, 282 (Fed. Cir. 1995). “Whistleblowers are encouraged to make such disclosures by 

providing protection against retaliation for making the 

disclosures.” Carr v. Soc. Sec. Admin., 185 F.3d 1318, 

1326 (Fed. Cir. 1999). “The [Act] was enacted to protect 
 PEARSON v. VA 5

employees who report genuine infractions of law, not to 

encourage employees to report arguably minor and inadvertent miscues occurring in the conscientious carrying 

out of one’s assigned duties.” Frederick v. Dep’t of Justice, 

73 F.3d 349, 353 (Fed. Cir. 1996). 

In determining whether reprisal for whistleblowing 

activities occurred and whether corrective action is warranted, the Board must determine whether the appellant 

has shown by a preponderance of the evidence that a 

protected disclosure was made and that the disclosure 

was a contributing factor in the agency’s personnel action. 

5 U.S.C. § 1221(e); Kewley v. Dep’t of Health and Human 

Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998). 

In this case, the Board analyzed each alleged disclosure and concluded that Pearson failed to establish by 

preponderant evidence that she made any protected 

disclosures under 5 U.S.C. § 2302(b)(8). Initial Decision

at 22. On appeal, Pearson alleges that the agency failed 

to prove that the Board did not err when it concluded that 

none of Pearson’s disclosures were protected. See, e.g., 

Pet’r’s Reply Br. 1-2. Additionally, for each alleged disclosure, Pearson challenges the conclusion of the Board by 

reasserting that her disclosure evidenced a violation of 

law, alleging that the Board “failed to analyze substantial 

evidence,” and asserting that the Board erred by adopting 

the agency’s arguments. The government responds that 

Pearson fails to explain how any of her disclosures 

amount to a protected disclosure. Further, the government responds that the Board carefully considered each 

alleged disclosure, resolved conflicting testimony by 

making credibility determinations, and that substantial 

evidence supports the Board’s findings of fact. 

This court agrees with the government. At the outset, 

Pearson misunderstands her burden on appeal. The 

burden of establishing a reversible error in a Board decision rests upon the petitioner. Harris v. Dep’t of Veteran 

Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998). If substan-
6 PEARSON v. VA

tial evidence supports the Board’s factual findings, this 

court must affirm. 5 U.S.C. § 7703(c); Hayes v. Dep’t of 

the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984). Substantial evidence is “such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion.” 

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 

(1938). This is a highly deferential standard of review: 

“where two different, inconsistent conclusions may reasonably be drawn from the evidence in record, an agency’s 

decision to favor one conclusion over the other is the 

epitome of a decision that must be sustained upon review 

for substantial evidence.” In re Jolley, 308 F.3d 1317, 

1329 (Fed. Cir. 2002). This court has independently 

reviewed the Board’s fact findings concerning each alleged 

protected disclosure and has concluded, for the reasons 

explained below, that substantial evidence supports the 

findings of the Board. 

The Board concluded that Pearson’s disclosure on October 16, 2008, was not protected. In this disclosure, 

Pearson relayed to Field, her supervisor, statements that 

Carranza made to Murrell concerning Murrell’s poor 

performance. Pearson fails to explain how she can claim 

to have made a protected disclosure of something that 

Murrell’s superior, Carranza, already knew and acted 

upon. Substantial evidence supports the Board’s conclusion, based upon the testimony of Field and Carranza, 

that this disclosure did not impart any information of 

wrongdoing and was not a protected disclosure under the 

Act. 

The Board concluded that Pearson’s disclosures on 

November 4 and 5 to Field that she had emailed Hamilton 

and Carranza requesting a meeting to discuss Murrell’s 

“organizational and managerial experience and skills” 

raised only non-specific allegations and primarily focused 

upon Pearson’s policy disagreements with Murrell. See 

LaChance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999) 

(“The [Act] is not a weapon in arguments over policy or a 
 PEARSON v. VA 7

shield for insubordinate conduct.”). Additionally, Pearson 

claimed that Murrell abused his authority because Pearson heard people in the office saying that Murrell had 

become angry about someone, but Pearson was not sure 

about whom. Pearson’s allegations lacked specificity and, 

although she argues on appeal that “one could infer 

abuse(s) of authority,” the burden rests on Pearson to 

demonstrate that the Board’s interpretation is unreasonable. Pearson simply failed to establish by preponderant 

evidence that the she made a protected disclosure. Substantial evidence supports the Board’s conclusion, based 

upon the emails of record and the testimony of another 

employee, that Pearson lacked a reasonable belief that 

she made a protected disclosure and that Murrell’s angry 

outburst was not directed at Pearson. 

The Board concluded that Pearson’s disclosure on November 7 to Field of harassment by DeMoss for the benefit of Murrell also was not protected. The alleged threat 

was when, after DeMoss overheard Pearson complaining 

about Murrell to Thompson, DeMoss later asked Pearson 

“what if I break your finger?” The Board credited the 

testimony of DeMoss where he said that he had not 

threatened Pearson, if anything he was joking, and that 

he did not speak to her on Murrell’s behalf. Credibility 

determinations made by the Board are “virtually unreviewable” on appeal. King v. Dep’t of Health & Human 

Servs., 133 F.3d 1450, 1453 (Fed. Cir. 1998). Additionally, 

the Board concluded that Pearson’s disclosures to Thompson, of which DeMoss purportedly overheard, were “vague 

and conclusory” and failed to identify what procurement 

orders or procurement policies were violated by Murrell. 

Initial Decision at 21. Substantial evidence, including 

DeMoss’s testimony, supports the Board’s conclusion that 

Pearson failed to allege facts to show that DeMoss’s 

statements evidenced an abuse of authority by Murrell or 

were made on behalf of Murrell. 
8 PEARSON v. VA

The Board concluded that Pearson’s disclosure on November 7 to Field regarding the discussion she had with 

Thompson concerning procurement violations and threats 

by Murrell or Carranza (discussed supra) was also not a 

protected disclosure. The Board credited Carranza’s 

testimony that she was not aware of Pearson’s meeting 

with Thompson or DeMoss’s comments. Additionally, the 

Board credited Field’s testimony that there was nothing 

inappropriate in Carranza and Murrell ordering furniture 

from Widmer Interiors because Widmer Interiors sold 

products listed on the GSA approved schedule. The 

Board’s conclusion as to this alleged disclosure is supported by substantial evidence, including the testimony of 

Field and Carranza. 

Considering all the evidence presented and for the 

reasons stated above, the record contains substantial 

evidence to support the Board’s finding that Pearson 

lacked a reasonable belief that she had made any protected disclosures under the Act and the Board’s conclusion to that effect is affirmed. 

2. Inevitable Adverse Action 

 Although the Board concluded that Pearson did not 

make a protected disclosure, it also went on to conclude 

that even if Pearson made a protected disclosure and it 

was a contributing factor, “the agency demonstrated by 

clear and convincing evidence that it would have terminated [Pearson]’s probationary employment of five weeks 

absent a protected disclosure.” Initial Decision at 23. If 

the appellant establishes that a protected disclosure was 

a contributing factor, the burden shifts to the agency to 

establish by clear and convincing evidence that it would 

have taken the action even in the absence of the protected 

disclosure. 5 U.S.C. § 1221(e)(2); Kewley, 153 F.3d at 

1363. 

Pearson argues that “[t]he [Board] failed to analyze 

substantial evidence” and that the agency failed to carry 
 PEARSON v. VA 9

its burden of clear and convincing evidence that it would 

have terminated Pearson even in the absence of any 

disclosures. Pet’r’s Br. 55. The government responds that 

it proved by clear and convincing evidence that even if 

Pearson had made protected disclosures, “the VA had 

shown that it would have fired her[] because of [Pearson’s] email to the furnishing committee.” Resp. Br. 36. 

Because Pearson did not make any protected disclosures 

under the Act, see supra, this court need not review the 

Board’s determination that the agency would have terminated Pearson in the absence of protected disclosures. 

Nonetheless, because substantial evidence supports the 

Board’s determination that the agency proved it would 

have terminated her in the absence of protected disclosures, this court also affirms on that alternative ground, 

for the reasons explained below. 

Field, Pearson’s supervisor, testified that Pearson 

brought to his attention the abusive email she had sent to 

the furnishings committee eight minutes after she had 

sent it. Initial Decision at 23. In coming to Field, Pearson identified this email as one that she could be discharged for sending. Id. at 24. Field also testified that he 

had previously discussed with Pearson the proper chain of 

command, which she did not follow. Id. The record 

reflects that on November 7, 2008, Field issued Pearson a 

written statement counseling against insubordination and 

he provided a copy of this statement and a memorandum 

of his conversation with Pearson to Karen Cox (“Cox”), 

Chief of Human Resources. Id. 

Cox testified that she was contacted by management 

regarding discipline against Pearson. Id. at 25. Cox then 

explained that it was important to monitor the performance and conduct of probationary employees to see if they 

are a good fit for the agency before they receive a permanent appointment. Id. Cox further testified that she 

reviewed emails sent to Carranza and the email sent to 

the furnishing committee to determine if it was sufficient 
10 PEARSON v. VA

for probationary termination. Id. Cox made the determination to terminate Pearson on November 10, 2008. Id.

After hearing the testimony and considering the record evidence, the Board concluded that Pearson sent 

inappropriate communications to managers and repeatedly refused to follow the chain of command. Id. at 25. 

Additionally, the Board also relied on testimony from one 

of Pearson’s coworkers that Pearson’s discharge was not 

retaliatory but was instead because she sent inappropriate emails and failed to observe the chain of command. 

Id. at 26. The Board also concluded that “[t]he record 

reflects that [Murrell]’s and [Pearson]’s disagreement as 

to her job duties and responsibilities on October 16, 2008, 

led to a serious personality conflict that was not resolved 

during the appellant’s extremely short tenure at the 

agency.” Initial Decision at 21-22. These conclusions are 

supported by substantial evidence and Pearson fails to 

prove otherwise. This court therefore affirms the Board’s 

conclusion that the VA would have terminated Pearson in 

the absence of any protected disclosures. 

3. Additional Issues 

This court has considered the additional issues raised 

by Pearson on appeal and has concluded that none of 

them has any merit. Pearson complains that the Board 

excluded additional disclosures that Pearson alleges were 

protected. The Board properly excluded these additional 

disclosures because they were omitted from the form she 

filed with the Office of Special Counsel which stated, in 

all caps, “must be completed for all disclosures reported in 

this complaint.” Pearson’s complaint to the Office of 

Special Counsel is what set the boundaries for the Board’s 

inquiry. Pearson also alleges that the Board improperly 

dismissed disclosures five and six, which were included on 

that form. The Board properly dismissed disclosure five 

as simply providing background information. See Initial 

Decision at 6 n.3. The Board properly dismissed disclosure six because it related to Pearson’s claim of sex dis-
 PEARSON v. VA 11

crimination and harassment by Murrell, which Pearson is 

pursuing before the EEOC and district court and not the 

Board. Finally, Pearson alleges that the agency engaged 

in ex parte communications with the Board. However, as 

the Board correctly found on rehearing and Pearson fails 

to rebut, Pearson’s allegations of ex parte communications 

relate not to the merits but only to matters of scheduling. 

See Final Order at 7. 

For the foregoing reasons, the decision of the Board is 

affirmed. 

AFFIRMED 

COSTS

Each party shall bear its own costs.