NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3225

DIANE KING, Petitioner,

v.
DEPARTMENT OF VETERANS AFFAIRS, Respondent. Diane King , of Deatsville, Alabama, pro se. Maame A.F. Ewusi-Mensah , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Departm ent of Justice, of Washington, DC, for respondent. With him on the brief were Peter D. Keisler , Assistant Attorney General, Jeanne E. Davidson , Director, and Kathryn A. Bleecker , Assistant Director. Appealed from: United States Merit Systems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3225 DIANE KING, Petitioner,

v. DEPARTMENT OF VETERANS AFFAIRS, Respondent.

___________________________ DECIDED: September 14, 2007

___________________________ Before RADER, Circuit Judge , CLEVENGER, Senior Circuit Judge , and DYK, Circuit Judge

. PER CURIAM. Diane King (“King”) appeals from the decisi on of the Merit Systems Protection Board (“Board”) in AT-1221- 06-0781-W-1, denying her request for corrective action under the Whistleblower Protection Act (“W PA”) after she was suspended from her position for one day. Because we conclude t hat the various errors alleged by King are without merit, we affirm

. BACKGROUND King is a Medical Technologist, GS-09, at the VA Health Care System in Alabama. On November 10, 2005, the VA proposed to repr imand King for making false statements about a co-worker. According to King’s own admission, on November 15, 2005, she was off-duty but on the VA’s East Campus in Tuskegee for a doctor’s appointment and went into the canteen to do Christmas shopping. She approached asupervisor, who said hello, and King responded: “You know, I didn’t get my law degree out of a cracker jack box. Y ou’re going to wish you hadn’t started this.” Based on this conduct, the agency suspended her for one day for “disrespectful conduct.” King claimed that she was disciplined for protec ted whistleblowing, alleging that she had engaged in protected whistleblowing in making the statement s about the other employee for which the earlier reprimand wa s proposed. She exhaus ted her remedies with the Office of Special Counsel and then f iled an Individual Right of Action with the Merit Systems Protection Board (“Board”). After a hearing, the Administrative Judge issued an initial decision denying corrective ac tion, which became the final decision of the Board upon denial of review. King timely appealed to this court, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). DISCUSSION The Board’s decision must be affirmed unless it is found to be arbitrary, capricious, an abuse of discretion, or other wise not in accordance with law; obtained without procedures required by la w, rule, or regulation; or unsupported by substantial evidence. 5 U.S. C. § 7703(c) (2000); Yates v. Merit Sys. Prot. Bd. , 145 F.3d 1480, 1483 (Fed. Cir. 1998). Even assuming, solely for purposes of this appeal, that Ki ng made a protected disclosure and that the protected disclosure was a contri buting factor in the personnel action, the agency can sustain the discipline if it can show by clear and convincing evidence that it would have taken the action in the absence of the pr otected disclosure. 5 U.S.C. § 1221(e)(2). We conclude that the Board’s finding that the agency would have taken its action regardless of the protec ted alleged activity was supported by clear

2007-3225 22007-3225 3 and convincing substantial ev idence. As found by the Board, the evidence of disrespectful conduct was both “strong” and “undisputed” and the agency had imposed far more serious discipline on “similarly situated individuals,” whom the Board found were not whistleblowers. While King argues that the suspension was improper because she was off-duty at the time of the incident, adverse personnel actions may be taken for off-duty conduct if there is a nexus betw een the conduct and the “efficiency of the service.” Allred v. Dept. of Health & Human Servs. , 786 F.2d 1128, 1130 (Fed. Cir . 1986). We conclude that the record provides substantial evidenc e of a nexus, including the fact that the incident happened at her employer’s facility and involved a supervisor. King also argues that her statements we re protected by the First Amendment, but the government may restrict speech if it “reasonably believe[] [it] would disrupt the office, undermine [a supervisor’s] authority, and destroy close working relationships.” Connick v. Myers , 461 U.S. 138, 154 (1983). The re cord discloses substantial evidence to support a conclusion that this is such a situation. King makes a variety of other arguments, each of which we have considered carefully and find to be without merit. We therefore affirm. No costs.