                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CEDRIC D. CLAY,                                 DOCKET NUMBER
                   Appellant,                        SF-0752-15-0456-B-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: December 19, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Cedric D. Clay, Lacey, Washington, pro se.

           Stephen D. Funderburk and Pamela J. Campbell, Joint Base
             Lewis-McChord, Washington, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the remand initial decision,
     which affirmed his removal. Generally, we grant petitions such as this one only
     when: the initial decision contains erroneous findings of material fact; the initial
     decision is based on an erroneous interpretation of statute or regulation or 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous application of the law to the facts of the case; the 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. See 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, 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 and AFFIRM the remand initial decision, which is now the
     Board’s final decision. 5 C.F.R. § 1201.113(b).

                                      BACKGROUND
¶2        In a precedential Opinion and Order, the Board remanded this appeal to the
     regional office for the administrative judge to adjudicate the appellant’s
     affirmative defense of reprisal for protected activity under the proper standard.
     Clay v. Department of the Army, 123 M.S.P.R. 245, ¶¶ 10-12 (2016). In doing so,
     the Board affirmed the administrative judge’s finding that the agency had
     established its charges against the appellant, which comprised three specifications
     each of using offensive language in the workplace and inappropriate physical
     contact with a coworker, and two specifications of failure to follow instructions.
     Id., ¶¶ 4-8. We also affirmed the administrative judge’s finding that the appellant
     failed to establish his affirmative defense of race discrimination. Id., ¶ 9. We
     also authorized the administrative judge to readopt her findings on nexus and the
     penalty in her new initial decision should she find on remand that the appellant
     failed to establish his affirmative defense of reprisal for protected activity under
     5 U.S.C. § 2302(b)(9)(A)(i). Id., ¶¶ 10-11.
¶3        The administrative judge gave the parties comprehensive notice of the
     proper elements and burdens of establishing an affirmative defense of reprisal for
                                                                                        3

     engaging in protected activity and found that, based on the allegations set forth in
     his prior removal appeal, the appellant had established that he engaged in
     protected activity. Remand File (RF), Tab 3; see Clay v. Department of the Army,
     MSPB Docket No. SF-0752-12-0406-I-1, Initial Decision (July 24, 2012). The
     appellant responded and requested a supplemental hearing. RF, Tabs 4-5. The
     administrative judge reiterated the parties’ respective burdens and scheduled a
     supplemental hearing. RF, Tabs 6-7, 11. After holding the requested hearing, the
     administrative judge issued a remand initial decision in which she affirmed the
     agency’s action. RF, Tab 13, Remand Initial Decision (RID).
¶4        The appellant filed a petition for review and the agency filed a response.
     Remand Petition for Review (RPFR) File, Tabs 1, 3. In his petition for review,
     the appellant contends that the agency retaliated against him by sending his
     evaluation forward without him seeing or signing it, by denying him leave to take
     his wife for a medical appointment, and by engaging in “several other issues
     where the agency broke the law.”      RPFR File, Tab 1.      He also questions the
     administrative judge’s determination on remand, given her previous finding that
     he already had established by preponderant evidence that he engaged in prior
     protected activity. Id. In its response, the agency contends that the appellant’s
     petition for review fails to meet the Board’s criteria for review.      RPFR File,
     Tab 3.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5        Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), to
     prevail on a prohibited personnel practice affirmative defense in a chapter 75
     appeal that independently could form the basis of an in dividual right of action
     appeal, once the agency proves its adverse action by a preponderance of the
     evidence, the appellant must demonstrate by preponderant evidenc e that he made
     a protected disclosure or engaged in protected activity and that the disclosure or
     activity was a contributing factor in the adverse action. Shibuya v. Department of
                                                                                        4

     Agriculture, 119 M.S.P.R. 537, ¶ 19 (2013); see Alarid v. Department of the
     Army, 122 M.S.P.R. 600, ¶ 12 (2015) (recognizing that under the WPEA, an
     appellant may raise an affirmative defense of whistleblower retaliation based on
     protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), and (D)).
¶6         If the appellant establishes both a protected disclosure and contributing
     factor by preponderant evidence, then the burden of persuasion shifts to the
     agency to prove by clear and convincing evidence that it would have taken the
     same action in the absence of the appellant’s protected activity.           5 U.S.C.
     § 1221(e)(2); Shannon v. Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 24
     (2014). In determining whether the agency has met this burden, the Board will
     consider all the relevant factors, including the following: (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 the agency officials involved in the decision; and
     (3) any evidence that the agency takes similar actions against employees who did
     not engage in such protected activity, but who are otherwise similarly situated.
     Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).
     The Board does not view these factors as discrete elements, each of which the
     agency must prove by clear and convincing evidence, but rather weighs these
     factors together to determine whether the evidence is clear and convincing as a
     whole. Lu v. Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015).
     In assessing whether the agency has met its burden by clear and convincing
     evidence, the Board must consider all the pertinent evidence in the record, and it
     must not exclude or ignore countervailing evidence by lo oking only at the
     evidence that supports the agency’s position.       See Herman v. Department of
     Justice, 119 M.S.P.R. 642, ¶ 15 (2013) (citing Whitmore v. Department of Labor,
     680 F.3d 1353, 1367-70 (Fed. Cir. 2012)).
¶7         In the remand initial decision, the administrative judge first reiterated her
     earlier finding that the appellant had established that he engaged in protected
     activity. RID at 5. She went on to find that, based on the “knowledge/timing
                                                                                               5

      test,” 2 the appellant’s protected activity could have been a contributing factor in
      the agency’s decision to remove him. Id. Neither party challenges these findings
      on review.
¶8          The administrative judge ultimately found, pursuant to her analysis of the
      Carr factors set forth above, that the agency established by clear and convincing
      evidence that it would have removed the appellant even in the absence of his
      protected activity.    RID at 9-10. On the first Carr factor, she found that the
      agency’s evidence supporting its action was strong. RID at 9. In light of the
      analysis set forth in our Opinion and Order affirming her earlier decision, we
      agree. Clay, 123 M.S.P.R. 245, ¶¶ 4-8.
¶9          On the second Carr factor, the existence and strength of any motive to
      retaliate on the part of the agency officials involved in the decision , the
      administrative judge assessed the testimony of three agency witnesses:                 the
      appellant’s most recent supervisor, the proposing official, and the deciding
      official.     RID at 6-8.       She found that these individuals testified credibly,
      exhibiting,    among    other     positive   attributes,   a   forthright   demeanor   and
      unequivocal manner.      Id. Pursuant to this testimony, the administrative judge
      found that the agency officials involved in the appellant’s removal had little
      motive to retaliate. RID at 9-10.
¶10         In support of her determination, the administrative judge cited the
      appellant’s supervisor’s testimony that she was largely unaware of the appellant
      and knew that he had been fired and then got his job back only because he had

      2
        Congress established a knowledge/timing test that allows an appellant to demonstrate
      that a disclosure or protected activity was a contributing fac tor in a personnel action
      through circumstantial evidence, such as evidence that the official taking the personnel
      action knew of the whistleblowing disclosure or protected activity and took the
      personnel action within a period of time such that a reasonab le person could conclude
      that the disclosure was a contributing factor in the personnel action. See 5 U.S.C.
      § 1221(e)(1)(A), (B); Rubendall v. Department of Health & Human Services ,
      101 M.S.P.R. 599, ¶ 12 (2006), superseded on other grounds by statute, Whistleblower
      Protection Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat. 1465, as stated in
      Carney v. Department of Veterans Affairs, 121 M.S.P.R. 446, ¶ 6 (2014).
                                                                                         6

      told her, but she purposefully avoided knowing any details.          RID at 6; RF,
      Tab 12, Supplemental Hearing Compact Disc. The proposing official similarly
      testified that she was aware of the appellant’s successful prior appeal of his
      removal but similarly claimed that she did not know the details nor had she asked
      the appellant for such details because it did not involve her.      RID at 7. The
      deciding official testified that he had not heard of the appellant before this matter
      and that he had learned about the appellant’s prior removal and reinstatement
      from the appellant himself.    Id. The administrative judge also considered the
      sworn declaration of the appellant’s previous supervisor, finding that even though
      it constituted hearsay evidence, it had probative value because it was both sworn
      and was consistent with her testimony in the underlying appeal. RID at 9 ; see
      Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83-87 (1981) (observing that
      the assessment of the probative value of hearsay evidence necessarily depends on
      the circumstances of each case). Because the record therefore shows that none of
      these officials were involved in the appellant’s first removal or the resulting
      appeal, such that the appellant’s exercise of his appeal rights did not affect them
      in any way, and about 3 years had passed since the appellant filed that appeal, the
      administrative judge was “left with the firm belief that, even in the absence of the
      appellant’s protected activity, the agency would have removed him.” RID at 10.
      We agree.    The appellant’s arguments on review regarding his evaluation, his
      spouse’s medical appointment or the findings in his appeal below do not show
      that the administrative judge erred in finding on remand that the agency
      established by clear and convincing evidence that it would have removed the
      appellant in the absence of his protected activity. RPFR File, Tab 1.
¶11         Accordingly, we affirm the remand initial decision, which is now the
      Board’s final decision in this appeal. 5 C.F.R. § 1201.113(b).
                                                                                 7

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      You have the right to request further review of this final decision. There
are several options for further review set forth in the paragraphs below. You may
choose only one of these options, and once you elect to pursue one of the avenues
of review set forth below, you may be precluded from pursuing any other avenue
of review.

Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request 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 your request 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, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after your
receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
                                                                                    8

discrimination claims and your other claims in an appropriate Un ited States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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.

Other Claims: Judicial Review
      If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U .S. Court of Appeals for the
Federal Circuit or by any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time.
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec.
27, 2012). You may read this law as well as other sections of the United States
Code, at our website, http://www.mspb.gov/appeals/uscode/htm.              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
                                                                                  9

court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within
the court’s Rules of Practice, and Forms 5, 6, and 11. Additional information
about other 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.
     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
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
