         NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
                __________________________

                 DIANA L. HARRISON,
                      Petitioner,

                             v.
          DEPARTMENT OF AGRICULTURE,
                  Respondent.
                __________________________

                        2010-3150
                __________________________

    On appeal from the Merit Systems Protection Board
in case No. DC0752100191-I-1.
              ___________________________

               Decided: December 15, 2010
               ___________________________

      DIANA L. HARRISON, District Heights, Maryland, pro
se.

    ELLEN M. LYNCH, Trial Counsel, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With her on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and REGINALD T. BLADES,
JR., Assistant Director.
HARRISON   v. AGRICULTURE                                2


                __________________________

    Before BRYSON, DYK, and MOORE, Circuit Judges.
PER CURIAM.

                            DECISION

    Diana L. Harrison appeals the decision of the Merit
Systems Protection Board sustaining her removal from a
position with the Farm Service Agency (“FSA”), an agency
within the Department of Agriculture. We affirm.

                       BACKGROUND

    Ms. Harrison was employed by the FSA as a Human
Resources Assistant. She joined the FSA on April of 2008
and was removed in December of 2009 for conduct unbe-
coming a federal employee and for providing inaccurate
information on federal documents.

    The first charge was based on statements Ms. Harri-
son made about her supervisor, Lisa Greesen. With
respect to that charge, Linda Roebuck, a co-worker,
testified before the Board that Ms. Harrison told her that
she knew where Ms. Greesen lived and “could have her
jumped.” According to Ms. Roebuck, Ms. Harrison said
that she had previously had someone “jumped.” Ms.
Roebuck testified that she found Ms. Harrison’s state-
ments “hostile,” and that the statements made her “very
uncomfortable.” Ms. Roebuck said that she had relayed
the threats to a higher-level supervisor in the interest of
her safety and that of Ms. Greesen. In addition, Karen
Williams, another co-worker, testified about a conversa-
tion she had with Ms. Harrison in which Ms. Harrison
said that Ms. Greesen had entered Ms. Harrison’s office
and touched her paperwork and that Ms. Harrison added
3                                 HARRISON   v. AGRICULTURE


that she “wished [Ms. Greesen] was dead.” At the hear-
ing, Ms. Harrison denied making those statements. The
administrative judge, however, found the statements
consistent with Ms. Harrison’s attitude towards Ms.
Greesen and, based on the demeanor and conduct of the
testifying witnesses, the administrative judge found the
charge to be supported by preponderant evidence.

    The second charge was supported by four specifica-
tions. All four specifications involved answers Ms. Harri-
son provided on Optional Form 306 (“OF-306”) as part of
her employment application with the FSA and on the
“electronic questionnaire for investigations processing”
form (“e-QIP”) that Ms. Harrison filled out during the
investigation of the first charge.

    Before joining the FSA, Ms. Harrison worked in a
similar position with the Federal Emergency Manage-
ment Agency (“FEMA”) until she was terminated in
November of 2004. Following her termination, she ap-
pealed to the Board and eventually entered into a settle-
ment agreement with FEMA. The first two specifications
relate to her failure to disclose the existence of the set-
tlement agreement. When Ms. Harrison filled out OF-306
on her first day of work with the FSA, she answered “no”
to question 12:

    During the last 5 years, have you been fired from
    any job for any reason, did you quit after being
    told that you would be fired, did you leave any job
    by mutual agreement because of specific prob-
    lems, or were you debarred from Federal employ-
    ment by the Office of Personnel Management or
    any other Federal agency?
HARRISON   v. AGRICULTURE                                  4


Ms. Harrison also responded “no” to a similar question on
the e-QIP. Because Ms. Harrison had resigned from her
position with FEMA by mutual agreement, the adminis-
trative judge concluded that her answers were false and
therefore sustained the first two specifications.

      The third and fourth specifications involved answers
Ms. Harrison provided to questions concerning tax delin-
quencies. Ms. Harrison responded “no” to question 13 of
OF-306, which asked, “Are you delinquent on any Federal
debt? (including delinquencies arising from Federal taxes
. . . .).” She also answered “no” to question 22 of the e-QIP
inquiry, which asked, “In the last 7 years, have you . . .
been subject to a tax lien.” The administrative judge
found that Ms. Harrison had been delinquent on her
federal tax obligations for a number of years before be-
ginning her job with FSA and that the IRS had imposed a
tax lien against her home in December of 2009. Based on
those findings, the administrative judge sustained the
third and fourth specifications of the falsification charge.

    Before her removal in December of 2009, Ms. Harri-
son had been subject to an earlier disciplinary action by
the FSA. In April of 2009, she was issued a letter of
reprimand based on her disclosure of confidential infor-
mation to a co-worker. That reprimand related to a
dispute over the agency’s failure to give Ms. Harrison a
bonus in 2009. FSA employees may be eligible for a
monetary bonus if their performance meets certain guide-
lines. Ms. Harrison had not received a performance
review or a bonus as of April of 2009. She sent an e-mail
to a colleague who had also not received a performance
review and carbon-copied her superiors. The e-mail
contained the names of seven other FSA employees who
had received bonuses and disclosed the amounts of their
bonus awards. Ms. Harrison also contacted the FSA’s
5                                  HARRISON   v. AGRICULTURE


Deputy Administrator for Management concerning the
status of her performance review. As a result of that
conduct, the FSA placed a reprimand letter in Ms. Harri-
son’s personnel file stating that the disclosure of individ-
ual remuneration information to her co-workers was
contrary to agency policy, set a poor example for other
employees, and undermined her trustworthiness as a
human resources professional. The letter also faulted Ms.
Harrison for sidestepping agency protocol by contacting
the agency’s Deputy Administrator instead of her more
immediate supervisors.

    Before the Board, Ms. Harrison presented a whistle-
blower defense predicated on her disclosure to the Deputy
Administrator that the FSA had failed to conduct her
annual review in a timely manner. The administrative
judge held that Ms. Harrison failed to show that the
disclosure was protected and found that there was no
evidence suggesting that the officials who proposed and
effected her removal were aware of the disclosure.

    After sustaining the charges against Ms. Harrison,
the administrative judge held that the FSA had addressed
the relevant Douglas factors and had concluded that the
penalty of removal was reasonable in light of her actions,
which were “serious, intentional, and alarming to other
employees.”     The administrative judge accepted the
deciding official’s testimony that Ms. Harrison was not a
good candidate for rehabilitation, as she had been repri-
manded before at the FSA and had been removed from a
different federal agency and later misrepresented the
circumstances of that removal.
HARRISON   v. AGRICULTURE                                6


                        DISCUSSION

    In challenging the administrative judge’s finding on
the first charge, Ms. Harrison relies on Ms. Greesen’s
testimony that Ms. Harrison had never made any threats
directly to her and only heard about Ms. Harrison’s
threats from others. The charged conduct, however, was
not limited to threats made directly to Ms. Greesen;
threatening language made to others but directed at Ms.
Greesen was sufficient to constitute conduct unbecoming
a federal employee.

    Ms. Harrison also contends that Ms. Roebuck was ly-
ing and that the administrative judge should not have
credited her testimony. Ms. Harrison relies on the fact
that Ms. Roebuck’s testimony at various times differed
from her testimony and that of Ms. Greesen. After weigh-
ing the relative credibility of the witnesses, the adminis-
trative judge credited Ms. Roebuck and discredited Ms.
Harrison. Credibility determinations are virtually unre-
viewable on appeal. Griessenauer v. Dep’t of Energy, 754
F.2d 361, 364 (Fed. Cir. 1985). There is nothing in this
case that would justify the unusual step of rejecting the
administrative judge’s credibility assessment.

    With respect to the second charge, Ms. Harrison
claims that she did not knowingly and intentionally
falsify information regarding her employment with
FEMA. To prevail on that charge, the agency was re-
quired to prove that the statement was false, that it was
material, and that the employee acted with the intent to
deceive the agency for her private gain. Leatherbury v.
Dep’t of the Army, 524 F.3d 1293, 1301-02 (Fed. Cir.
2008). The settlement agreement between FEMA and
Ms. Harrison permitted her to acknowledge that she left
her position by mutual agreement. Although FEMA has
7                                   HARRISON   v. AGRICULTURE


amended her SF-50 to indicate that she was not removed
but left by agreement, that change did not alter her
obligation to respond truthfully to the questions relating
to separation by mutual agreement. Falsification of
federal employment applications is a type of misconduct
as to which materiality is presumed. See Kissner v. Office
of Pers. Mgmt., 792 F.2d 133, 134 (Fed. Cir. 1986). More-
over, an intent to defraud can be inferred from circum-
stantial evidence, such as an applicant’s desire not to
disclose information that could adversely affect the likeli-
hood of her being hired. Here, the administrative judge
considered the record as a whole and Ms. Harrison’s
explanations as to why she answered the questions the
way she did and found that she acted with an intent to
deceive the FSA. That finding is supported by substantial
evidence; we therefore sustain the Board’s decision with
respect to the first and second specifications of the falsifi-
cation charge.

    The Board’s findings as to the third and fourth speci-
fications, which relate to Ms. Harrison’s failure to disclose
her delinquent tax obligations, are also supported by
substantial evidence. Ms. Harrison points out that the
tax lien against her house was levied in December of
2008, eight months after she filled out the OF-306 in
April of that year. The lien was in place, however, when
she filled out the e-QIP in June of the next year. And OF-
306 asked if she was delinquent on any federal debt,
including tax debt. Although Ms. Harrison states that
she was on a payment plan with the IRS, she was on that
plan because of her tax delinquency.

    Ms. Harrison next argues that the penalty of removal
was unreasonable. The choice of penalty “is committed to
the sound discretion of the employing agency and will not
be overturned unless the penalty selected is wholly un-
HARRISON   v. AGRICULTURE                                 8


warranted in light of all the relevant factors.” Guise v.
Dep't of Justice, 330 F.3d 1376, 1382 (Fed. Cir. 2003).
The FSA determined that Ms. Harrison’s threats directed
against her supervisor were unprofessional and inappro-
priate, and that they adversely affected the work atmos-
phere. Her misrepresentations on documents relating to
her employment and indebtedness history, combined with
her prior disclosure of confidential compensation informa-
tion to her co-worker, raised doubts about her trustwor-
thiness. Under those circumstances, the administrative
judge did not err in concluding that the FSA’s choice of
penalty was within the permissible range of reasonable-
ness.

    Finally, to the extent that Ms. Harrison’s appeal is
predicated on the dismissal of her whistleblower’s de-
fense, we affirm the Board’s decision. Ms. Harrison had
the burden to show by a preponderance of the evidence
that she made a protected disclosure and that the disclo-
sure was a contributing factor to the personnel action at
issue. Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1322 (Fed.
Cir. 1999). A protected disclosure “evidences (i) a viola-
tion of law, rule, or regulation, or (ii) gross mismanage-
ment, a gross waste of funds, an abuse of authority, or a
substantial and specific danger to public health or safety.”
5 U.S.C. § 2302(b)(8)(A). Ms. Harrison’s allegedly pro-
tected disclosure is an e-mail relaying confidential bo-
nuses awarded to her co-workers in which she carbon-
copied a high-level superior, as well as an independent
inquiry to that superior regarding the status of her review
and bonus. The administrative judge found that Ms.
Harrison failed to show that she had a reasonable belief
that the FSA violated a law, rule, or regulation when she
made the disclosure in question, and we sustain that
finding. The administrative judge therefore properly
rejected Ms. Harrison’s whistleblower defense.
9                      HARRISON   v. AGRICULTURE


    No costs.

                AFFIRMED
