UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ALMA D. CHAVEZ,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

SF-0752-17-0308-I-1

DATE: January 25, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Alma D. Chavez, Clovis, California, pro se.

Coleen L. Welch, Martinez, California, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

sustained her removal. Generally, we grant petitions such as this one only in the

following circumstances: 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

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

administrative 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. 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, 2 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. Except as expressly MODIFIED to

find that the appellant’s previous Board appeal was not a contributing factor in

her removal, and to VACATE the portion of the initial decision finding that the

agency proved by clear and convincing evidence that it would have removed the

appellant in the absence of her previous Board appeal, we AFFIRM the initial

decision. 

On review, the appellant submits various documents, including social

media posts, emails, and photographs, apparently intended to impeach the

credibility of a witness. Petition for Review (PFR) File, Tab 8 at 5-15, Tab 9

at 7-8. Evidence offered merely to impeach a witness's credibility is not

generally considered new and material. Bucci v. Department of Education,

42 M.S.P.R. 47, 55 (1989). Consequently, the newly submitted evidence does not

warrant further review. 

The appellant also contends that the administrative judge was biased

against her. PFR File, Tab 8 at 2-3, Tab 9 at 6. In making a claim of bias or

prejudice against an administrative judge, a party must overcome the presumption

of honesty and integrity that accompanies administrative adjudicators. Oliver v.

Department of Transportation, 1 M.S.P.R. 382, 386 (1980). An administrative

judge’s conduct during the course of a Board proceeding warrants a new

2

 To the extent the appellant’s reply to the agency’s response to her petition raises new

allegations of error, we do not consider it. 5 C.F.R. § 1201.114(a)(4); see Boston v.

Department of the Army, 122 M.S.P.R. 577, ¶ 5 n.3 (2015).
3

adjudication only if the administrative judge’s comments or actions evidence “a

deep-seated favoritism or antagonism that would make fair judgment impossible.”

Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002)

(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). 

Here, the appellant has provided no evidence to support her claim of bias

other than her general disagreement with the administrative judge’s findings and

credibility determinations. Mere disagreement with the administrative judge's

findings and credibility determinations does 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),

review denied, 669 F.2d 613 (9th Cir. 1982) (per curiam); see Crosby v. U.S.

Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the

administrative judge’s findings when she considered the evidence as a whole,

drew appropriate inferences, and made reasoned conclusions). 

For the reasons discussed below, we modify our analysis of the appellant’s

claim that the agency removed her in retaliation for her previous Board appeal.

Chavez v. Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 13 (2013).

Because that appeal included a claim of retaliation for protected disclosures under

5 U.S.C. § 2302(b)(8), the appellant’s claim falls within the scope of 5 U.S.C.

§ 2302(b)(9)(A)(i), and we consider it under the evidentiary framework of

5 U.S.C. § 1221(e). Elder v. Department of the Air Force, 124 M.S.P.R. 12,

¶¶ 39-40 (2016).

Under that framework, the appellant must first establish by preponderant

evidence3 that she engaged in protected activity that was a contributing factor in

the personnel action at issue. 5 U.S.C. § 1221(e)(1); Elder, 124 M.S.P.R. 12,

¶ 39. If the appellant does so, the burden of persuasion shifts to the agency to

prove by clear and convincing evidence 4 that it would have taken the same action

in the absence of the appellant’s protected activity. 5 U.S.C. § 1221(e)(2); Elder,

3

 Preponderant evidence is the degree of relevant evidence that a reasonable person,

considering the record as a whole, would accept as sufficient to find that a contested

fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
4

124 M.S.P.R. 12, ¶ 39. If the appellant does not establish her prima facie case,

the Board will not consider whether the agency would have met its burden under

the clear and convincing evidence test. Clarke v. Department of Veterans Affairs,

121 M.S.P.R. 154, ¶ 19 n.10 (2014), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015). 

Under 5 U.S.C. § 1221(e)(1), one way to establish contributing factor is to

show that the official taking the personnel action knew of the disclosure or

personnel activity and that the personnel action occurred within a period of time

such that a reasonable person could conclude the disclosure or protected activity

was a contributing factor in the personnel action. 5 U.S.C. § 1221(e)(1). Here,

the deciding official admitted that he had knowledge of the appellant’s previous

Board appeal. Initial Appeal File (IAF), Tab 22 at 45-46. However, more than

3 years transpired between the appellant’s earlier Board appeal, which concluded

in October 2013 and resulted in her December 2013 reinstatement, and her

subsequent removal, which was proposed in December 2016 and effected in

March of the following year. A delay of more than 2 years between a protected

disclosure or activity and the contested personnel action is too remote to satisfy

the knowledge component of the knowledge/timing test. Agoranos v. Department

of Justice, 119 M.S.P.R. 498, ¶ 21 (2013). Moreover, even if the removal were

considered as part of a continuum of related personnel actions stretching back to

the appellant’s July 2016 suspension, id., ¶ 22, the suspension and the privacy

investigation that preceded it also did not occur until more than 2 years had

passed since her protected activity. Thus, contrary to the initial decision, the

appellant has not established the contributing factor element under the

knowledge/timing test. 

That said, we note that the knowledge/timing test is not the only way for an

appellant to satisfy the contributing factor standard. Dorney v. Department of the

Army, 117 M.S.P.R. 480, ¶ 14 (2012). If an administrative judge determines that

4

 Clear and convincing evidence is that measure or degree of proof that produces in the

mind of a trier of fact a firm belief as to the allegations sought to be established.

5 C.F.R. § 1209.4(e). 
5

an appellant has failed to satisfy the knowledge/timing test, she should consider

other evidence, such as (1) evidence pertaining to the strength or weakness of the

agency’s reasons for taking the personnel action; (2) whether the whistleblowing

was personally directed at the proposing or deciding officials; and (3) whether

these individuals had a desire or motive to retaliate against the appellant. Id.

Any weight given to the whistleblowing activity, either alone or in combination

with other factors, can satisfy the contributing factor standard. Id. 

However, consideration of the Dorney factors also does not support a

finding of contributing factor. The first factor does not weigh in the appellant’s

favor, given that the agency has supported its charges by a preponderance of the

evidence. Regarding the second factor, the appellant’s claims of whistleblowing

reprisal in her previous Board appeal were not personally directed at the

proposing official or the deciding official, who were not involved in the events at

issue. As to the third factor, we note that the deciding official was formerly the

Director of the Fresno VA Medical Center, where the appellant was employed,

and is presently the Director of the VA Central California Health Care system,

which includes the Fresno facility. IAF, Tab 22 at 44. However, as the deciding

official did not become Director of the Fresno VA Medical Center until

December 2015, id., it is unlikely that he would have had a significant motive or

desire to retaliate against the appellant for her previous Board appeal, which

occurred well before his tenure. Nor is there evidence of any desire or motive to

retaliate on the part of the proposing official. 

In sum, we find that the appellant has not met her burden of establishing

that her protected activity under 5 U.S.C. § 2302(b)(9)(A)(i) was a contributing

factor in the agency’s decision to remove her. Because the appellant has not met

her initial burden, we do not reach the question of whether the agency proved by

clear and convincing evidence that it would have removed her in the absence of

her protected activity. Clarke, 121 M.S.P.R. 154, ¶ 19 n.10. Accordingly, we

vacate the portion of the initial decision addressing the clear and convincing
6

evidence test. See Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 26

(2016). The initial decision is otherwise affirmed. 5 

NOTICE OF APPEAL RIGHTS6

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum. 

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

5

 On petition for review, the appellant also argues that the agency failed to prove its

charges, violated her due process rights, and retaliated against her for prior equal

employment opportunity activity. We have considered the appellant’s arguments, but

we agree with the administrative judge’s analysis of these issues as set forth in the

initial decision. 

6

 Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.
7

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following

address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. 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, 10, and 11. 

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

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
8

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. 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. 

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below: 

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

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 
9

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction.7 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. 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, 10, and 11. 

7

 The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510. 
10

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

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below: 

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

FOR THE BOARD: ______________________________

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.