       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

               TAOFEEK OLONODE,
                    Petitioner

                           v.

        DEPARTMENT OF AGRICULTURE,
                   Respondent
             ______________________

                      2017-1868
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. PH-1221-16-0352-W-1.
                ______________________

              Decided: September 8, 2017
                ______________________

   TAOFEEK OLONODE, Houston, TX, pro se.

    STEPHEN CARL TOSINI, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., REGINALD
T. BLADES, JR.
                ______________________

    Before PROST, Chief Judge, REYNA, and HUGHES, Cir-
                      cuit Judges.
2                   OLONODE   v. DEPARTMENT OF AGRICULTURE



PER CURIAM.
    Taofeek Olonode, Ph.D., appeals from a final decision
of the Merit Systems Protection Board denying his Indi-
vidual Right of Action appeal. Because the Board did not
err in denying Dr. Olonode corrective action, we affirm.
                              I
    Dr. Olonode was appointed as a Commodity Grader in
the Agricultural Marketing Service (AMS) on January 10,
2016, subject to completion of a one-year probationary
period. Less than three months later, on March 17, 2016,
the agency issued Dr. Olonode a Notice of Termination
based on four incidents of improper conduct that allegedly
occurred between February 25 and March 8, 2016. Two
incidents involved Dr. Olonode neglecting his duties while
working; one incident involved Dr. Olonode’s rude treat-
ment of an employee of a company whose produce he was
grading which caused a negative perception of AMS; and
the final incident involved Dr. Olonode’s repeated inter-
ruptions and disruptions at a training session.
    After his removal, Dr. Olonode filed an Individual
Right of Action alleging that he was fired in retaliation for
reporting the following two violations of the Occupational
Safety and Health Act (OSHA) during his employment: (1)
one of the carts used to transport produce had a flat tire,
and (2) AMS failed to provide inspectors with protective
jackets when working in refrigeration units with tempera-
tures of about 40 degrees.
    The Administrative Judge found that Dr. Olonode’s
disclosures were protected and a contributing factor in his
termination. However, the Administrative Judge denied
Dr. Olonode’s request for corrective action because it
determined that AMS would have terminated him even in
the absence of his protected disclosures.
   Dr. Olonode appeals. We have jurisdiction under 28
U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A).
OLONODE   v. DEPARTMENT OF AGRICULTURE                     3



                             II
     We must sustain a decision of the Board unless it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c).
     Dr. Olonode argues that the Administrative Judge
failed to consider the injuries that he sustained as a
result of working under conditions that violated OSHA,
and failed to consider his medical reports. To the contra-
ry, the Administrative Judge did consider the evidence
that Dr. Olonode presented regarding the injuries he
incurred from using the damaged cart and concluded that
Dr. Olonode proved “that he incurred the injuries while
performing his duties.” Appx. 7. That conclusion, howev-
er, does not alter the outcome here.
    Because this is an IRA, the Board must determine
whether the agency terminated Dr. Olonode in retaliation
for making protected disclosures. See 5 U.S.C. § 1221(a).
If the Administrative Judge finds that the agency en-
gaged in whistleblower retaliation, the Board is required
to order corrective action, which may include medical
costs incurred. Id. § 1221(g)(1)(A)(ii).
    Because the Administrative Judge found that
Dr. Olonode’s disclosures were a contributing factor in his
termination, the burden shifted to AMS to show by clear
and convincing evidence that it would have taken the
same personnel action in the absence of the protected
disclosures. Carr v. Social Sec. Admin., 185 F.3d 1318,
1322 (Fed. Cir. 1999). To determine if AMS met its
burden, the Administrative Judge considered: (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 who were involved in
the decision; and (3) any evidence that the agency takes
4                  OLONODE   v. DEPARTMENT OF AGRICULTURE



similar actions against employees who are not whistle-
blowers but who are otherwise similarly situated. Id. at
1323; Appx. 13.
     Under the first Carr factor, the Administrative Judge
considered the evidence presented and found that the
agency “submitted overwhelming evidence in support of
the allegation that [Dr. Olonode] . . . was highly inappro-
priate” at the Raisin Training, and “convincing evi-
dence . . . that he was abrupt and abrasive in his
interaction with [a supervisor].” Appx. 18. Under the
second Carr factor, the Administrative Judge found
“slight evidence” of “motive to terminate [Dr. Olonode] in
retaliation for reporting the lack of protective coats and
complaining of the flat tire on a cart.” Appx. 23. Under
the final Carr factor, the Administrative Judge found that
the “record contains no evidence bearing on the issue of
whether the agency takes similar actions against similar-
ly situated employees who are not whistleblowers.” Id.
After considering the Carr factors, the Administrative
Judge found that the agency would have terminated
Dr. Olonode in the absence of his whistleblowing activity.
Appx. 25.
    Because the Administrative Judge properly analyzed
the evidence presented under the Carr factors, we find no
reversible error.
                      AFFIRMED
    No costs.
