                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DIANE KING,                                     DOCKET NUMBER
                         Appellant,                  AT-1221-12-0143-W-3

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: August 5, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL *

           Diane King, Prattville, Alabama, pro se.

           Asmaa Abdul-Haqq, and Kevin Thompson, Fort Stewart, Georgia, for the
             agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     denied her request for corrective action under the Whistleblower Protection Act.
     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

     *
         A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 interpretation of statute or regulation or the erroneous application of
     the law to the facts of the case; the 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, and based on the
     following points and authorities, 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 initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2         The appellant filed an individual right of action (IRA) appeal in which she
     contended that she was terminated from her GS-9 Medical Technologist position
     during her probationary period in retaliation for making protected disclosures.
     After a hearing, the administrative judge found that the appellant had established
     IRA jurisdiction and that she made protected disclosures that were a contributing
     factor in an adverse action. King v. Department of the Army, MSPB Docket No.
     AT-1221-12-0143-W-3, Initial Decision (ID) at 2-4. He found, however, that the
     agency showed by clear and convincing evidence that it would have terminated
     the appellant during her probationary period absent any protected whistleblowing.
     ID at 4-8.
¶3         In determining whether an agency has shown by clear and convincing
     evidence that it would have taken the same personal action in the absence of
     whistleblowing, the Board will consider the strength of the agency’s evidence in
     support of its action, the existence and strength of any motive to retaliate on the
     part of the agency officials who were involved in the decision, and any evidence
     that the agency takes similar actions against employees who are not
     whistleblowers but are otherwise similarly situated.       Carr v. Social Security
                                                                                         3

     Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).          We turn first to the
     strength of the agency’s evidence.
¶4         The deciding official testified that he terminated the appellant because she
     displayed persistent unprofessional behavior and insubordination and created an
     atmosphere that her coworkers perceived to be hostile. ID at 7. The record in
     this appeal contains ample evidence that the appellant was frequently
     insubordinate and unprofessional and that she had frequent conflicts with her
     first-level supervisor, Initial Appeal File, MSPB Docket No. AT-1221-12-0143-
     W-1 (W-1 File), Tab 6 at 46, 62, her second level supervisor, id. at 35-36, 40-41,
     53, 55-57, 59-60, 84-85, 89-92, both of her primary trainers, id. at 67-68, 76-79,
     and a third trainer who had to be brought in when one of the primary trainers
     refused to work with the appellant, id. at 94. According to her own statements,
     the appellant only complies with instructions when she agrees with them and is
     satisfied with the manner in which they were delivered. See id. at 48 (ignoring a
     superior’s questions because “I do not reward aggressive behavior”); id. at 72
     (“My trainer was insisting that I report a critical value that I did not believe was a
     [sic] critical.     I was not going to do it and so the OIC’s intervention was
     required.”).      The administrative judge concluded that any reasonable manager
     would terminate a probationer who behaved in this manner, ID at 8, and we find
     that the evidence in support of the termination is strong.
¶5         In contrast, the appellant merely asserts that the agency’s witnesses were
     untruthful and she alleges that the administrative judge did not perform a proper
     credibility analysis. Petition for Review (PFR) File, Tab 3 at 1. We agree that
     the administrative judge did not articulate a lengthy explanation for his credibility
     determinations, but it is manifestly clear that he found the agency’s witnesses to
     be more credible than the appellant’s witnesses, and the appellant has not
     identified a sufficiently sound reason for us not to defer to those findings. See
     Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).
     Moreover, the appellant points to no evidence of record tending to call the
                                                                                        4

     administrative judge’s credibility determinations into question, and we discern
     none. Thus, although the administrative judge did not articulate the reasoning
     behind his credibility determinations, his mistake was of no legal consequence
     because there is no showing that it adversely affected the appellant’s substantive
     rights. See Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981).
¶6         The appellant further contends that the administrative judge did not apply
     the proper test for determining whether the agency satisfied the clear and
     convincing evidence test.    PFR File, Tab 3 at 1.     We do not agree and find,
     instead, that the administrative judge properly applied the legal standards
     governing this appeal.
¶7         She also alleges that the administrative judge’s findings on the clear and
     convincing evidence test were insufficient under Whitmore v. Department of
     Labor, 680 F.3d 1353 (Fed. Cir. 2012). PFR File, Tab 3 at 1. In Whitmore, the
     court emphasized that a fair clear and convincing evidence analysis requires
     genuine consideration of all of the evidence on both sides of the question.
     Whitmore, 680 F.3d at 1368. The strength of the agency’s evidence in support of
     the termination was the most important factor in the administrative judge’s
     analysis, but he also examined the record for any evidence tending to show that
     the termination was retaliatory and found none. ID at 5-8. The appellant did not
     identify any direct or circumstantial evidence of retaliatory animus, proffered no
     evidence of retaliatory motive, presented no evidence about any other
     probationers who behaved as she did and were not terminated, did not support her
     allegation that the agency’s witnesses were untruthful, and offered no evidence of
     collusion.   We find that the administrative judge performed as thorough a
     Whitmore evaluation as the evidence of record permitted.
¶8         The remainder of the appellant’s arguments on review constitute a
     reiteration of her version of the facts, focusing in particular on an allegation that
     the appellant might be violent, an accusation she believes was unfair and
     unfounded. PFR File, Tab 3 at 3-5, Tab 6. However, she identifies no evidence
                                                                                    5

that contradicts the administrative judge’s findings and therefore provides no
basis for granting her petition for review.

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
        You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
        The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
        If you want to request review of the Board’s decision concerning your
claims    of   prohibited   personnel   practices   under   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 United States Court of Appeals
for the Federal Circuit or 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. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both.    Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
        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
                                                                                 6

States     Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective         websites,     which      can      be      accessed      through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
         If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for a list of attorneys who have
expressed interest in providing 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:                             ______________________________
                                           William D. Spencer
                                           Clerk of the Board
Washington, D.C.
