                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     GRACE MORALES,                                  DOCKET NUMBER
                 Appellant,                          AT-1221-14-0656-W-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: February 25, 2016
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Denis P. McAllister, Esquire, Glen Cove, New York, for the appellant.

           Mary E. Bagby, Esquire, Dallas, Texas, 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 initial decision, which
     denied her request for corrective action in her individual right of action (IRA)
     appeal. Generally, we grant petitions such as this one only when: the initial
     decision contains erroneous findings of material fact; the initial decision is based


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     on an erroneous interpretation of statute or regulation or the 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. Except as
     expressly MODIFIED by this Final Order to VACATE the administrative judge’s
     finding that there was no evidence of a motive to retaliate on the part of agency
     officials, we AFFIRM the initial decision.

                                      BACKGROUND
¶2         Effective September 20, 2009, the Department of Homeland Security (the
     agency) appointed the appellant, under the Federal Career Intern Program, to a
     Criminal Investigator position with the agency’s U.S. Immigration and Customs
     Enforcement Division.      Initial Appeal File (IAF), Tab 12 at 112-13.          Her
     excepted-service appointment was for a term not to exceed 2 years and subject to
     termination for unsatisfactory performance.      Id. at 112.    After the appellant
     completed her 6-month training course at the Federal Law Enforcement Training
     Center (FLETC), she began working for the agency’s Homeland Security
     Investigations (HSI) Field Office in Panama City, Florida.            Id. at 12-13.
     Effective August 10, 2010, the agency terminated the appellant during her 2-year
     trial period for performance and conduct reasons. Id. at 104-09.
¶3         On July 13, 2013, the appellant filed a whistleblower complaint with the
     Office of Special Counsel (OSC). IAF, Tab 1 at 18-33. In her OSC complaint,
     the appellant alleged that the agency committed a prohibited personnel practice
                                                                                          3

     by terminating her in reprisal for disclosing the use of racial profiling to her
     first-line supervisor, the Resident Agent-in-Charge (RAC), on April 22, 2010. Id.
     at 25. She stated that she told her supervisor, in front of other HSI employees,
     that the agency was engaged in racial and ethnic profiling in connection with the
     local enforcement of a national operation to discover and detain certain criminal
     aliens residing in the United States. Id. She also stated that an agency employee,
     her Field Training Officer (FTO), and a local law enforcement officer exceeded
     their authority by accessing internal, sensitive, HSI law enforcement databases
     and running a list of Hispanic surnames to determine if unlawful aliens were
     residing in the Panama City, Florida area, without any reasonable suspicion of
     their criminal activity. Id. at 25, 203. She described her disclosure as an abuse
     of authority and a violation of law, rule, or regulation by the agency. Id. at 25.
¶4         During the course of OSC’s investigation, the appellant provided OSC with
     copies of her April 22, 2010 email to the RAC and her FTO, clarifying her
     question about racial profiling, and the RAC’s April 23, 2010 email response.
     IAF, Tab 1 at 196-98. OSC concluded that the appellant asked a deferential or
     clarifying question about racial profiling, which did not constitute a protected
     disclosure under 5 U.S.C. § 2302(b)(8), and issued a closure letter on
     February 26, 2014, terminating its investigation. Id. at 11-12. The appellant filed
     a timely IRA appeal with the Board, alleging that the agency terminated her on
     August 10, 2010, in reprisal for her protected disclosure of racial profiling on
     April 22, 2010. 2 IAF, Tab 1 at 2, Tab 8 at 4-6.
¶5         After holding a hearing and finding jurisdiction over the appeal, the
     administrative judge issued an initial decision denying the appellant’s request for
     corrective action. IAF, Tab 26, Initial Decision (ID) at 1-2; IAF, Tab 25, Hearing

     2
       Before filing her IRA appeal with the Board, the appellant filed a formal equal
     employment opportunity complaint on September 3, 2010, challenging her termination.
     IAF File, Tab 13 at 22-23. On October 10, 2011, the agency issued a final agency
     decision finding no discrimination, and the appellant did not appeal the decision. Id.
     at 22, 30.
                                                                                       4

     Compact Disc (HCD). The administrative judge found that the appellant did not
     make a protected disclosure of racial profiling during her April 22, 2010
     discussion at the shooting range. ID at 11-12. However, the administrative judge
     found that the appellant made a protected disclosure based on her April 22, 2010
     email to the RAC and her FTO alleging agency abuse of its authority and a
     violation of its rules prohibiting racial profiling. ID at 13-15. The administrative
     judge also found that the appellant proved that her protected disclosure was a
     contributing factor to her termination because the deciding official, the Senior
     Agent-in-Charge (SAC), knew about the appellant’s disclosure and terminated her
     less than 4 months later.    ID at 15-16.   The administrative judge nonetheless
     found that the agency showed by clear and convincing evidence that it would
     have taken the same personnel action absent the appellant’s disclosure.          ID
     at 27-28.
¶6        The appellant filed a timely petition for review. Petition for Review (PFR)
     File, Tab 1. The agency filed a response in opposition to her petition. PFR File,
     Tab 3.

                                        ANALYSIS
¶7        In an IRA appeal, after establishing the Board’s jurisdiction, the appellant
     must establish a prima facie case of whistleblower retaliation by proving by
     preponderant evidence that she made a protected disclosure that was a
     contributing factor in a personnel action taken against her. 5 U.S.C. § 1221(e)(1);
     Mattil v. Department of State, 118 M.S.P.R. 662, ¶ 11 (2012). If the appellant
     meets that burden, the Board shall order such corrective action as it considers
     appropriate unless the agency shows by clear and convincing evidence that it
     would have taken the same personnel action in the absence of the protected
     disclosure.   5 U.S.C. § 1221(e)(1)-(2); Chambers v. Department of the
     Interior, 116 M.S.P.R. 17, ¶ 12 (2011). Clear and convincing evidence is that
     measure or degree of proof that produces in the mind of the trier of fact a firm
                                                                                              5

     belief as to the allegations sought to be established; it is a higher standard than
     the “preponderance of the evidence” standard.                 Sutton v. Department of
     Justice, 94 M.S.P.R. 4, ¶ 18 (2003), aff’d, 97 F. App’x 322 (Fed. Cir. 2004); 5
     C.F.R. § 1209.4(d). The administrative judge found that the appellant established
     a prima facie case of whistleblower retaliation by proving that she made a
     protected      disclosure   in   her   April    22,   2010   email,    which,   under   the
     knowledge/timing test, was a contributing factor in a personnel action taken
     against her. ID at 16. We affirm this finding for the reasons set forth below.
     The appellant’s        termination     is   a   “personnel   action”    under   5   U.S.C.
     § 2302(a)(2)(A).
¶8         On August 10, 2010, the agency terminated the appellant during her 2-year
     trial period. IAF, Tab 12 at 104-09. Terminating an appointment during a trial
     period is a “personnel action” under the Whistleblower Protection Act (WPA).
     See Downing v. Department of Labor, 98 M.S.P.R. 64, ¶¶ 2-3, 7 (2004); see also
     Sirgo v. Department of Justice, 66 M.S.P.R. 261, 267 (1995) (explaining that
     terminating a probationer is a personnel action under the WPA). We therefore
     find that the appellant has shown that the agency took a covered personnel action
     against her.
     The appellant’s disclosure of a potential abuse of authority and a violation of the
     agency’s rules against racial profiling is a “protected disclosure” under 5 U.S.C.
     § 2302(b)(8).
¶9         Protected whistleblowing occurs when an appellant makes a disclosure that
     she reasonably believes evidences a violation of law, rule, or regulation, gross
     mismanagement, a gross waste of funds, an abuse of authority, or a substantial
     and specific danger to public health and safety. Mudd v. Department of Veterans
     Affairs, 120 M.S.P.R. 365, ¶ 5 (2013); see 5 U.S.C. § 2302(b)(8). The proper test
     for determining whether an employee had a reasonable belief that her disclosures
     were protected is whether a disinterested observer with knowledge of the
     essential facts known to, and readily ascertainable by, the employee could
     reasonably conclude that the actions evidenced a violation of a law, rule, or
                                                                                       6

      regulation, or one of the other conditions set forth in 5 U.S.C. § 2302(b)(8).
      Mudd, 120 M.S.P.R. 365, ¶ 5.
¶10        The administrative judge found that the appellant made a protected
      disclosure in her April 22, 2010 email to her RAC, expressing concern that
      individuals were targeted for a detainment and deportation operation simply
      because they owned a car parked at a trailer park, they did not show up in law
      enforcement or immigration databases, and they had Hispanic last names.        ID
      at 14-15. The administrative judge found that the appellant presented undisputed
      evidence that racially motivated policing violated a Department of Justice policy
      directive applicable to all Federal law enforcement agencies.     Id. at 15.   The
      administrative judge further found that the appellant’s email disclosed an alleged
      violation of law, rule, or regulation, and an abuse of Government authority. Id.
      at 14. We agree with the administrative judge’s findings on this issue.
      The appellant’s conversation at the gun range, seeking advice on preparing the
      operational plan (OPPLAN) for Operation Crosscheck without the appearance of
      racial profiling, is not a “protected disclosure” under 5 U.S.C. § 2302(b)(8).
¶11        The appellant further argues that she made a protected disclosure of racial
      profiling to her FTO and her RAC when they were at the gun range on April 22,
      2010, and she expressed her concern about how to write the Crosscheck
      OPPLAN, without it appearing to be racial profiling in light of the local deputy’s
      list. PFR File, Tab 1 at 5; see ID at 11, n.4. The administrative judge found that
      the appellant did not make a protected disclosure at the gun range because a
      disinterested observer who heard the appellant’s allegations, as recounted by the
      RAC and the FTO in their testimony, could not conclude that the appellant
      disclosed any misconduct identified by 5 U.S.C. § 2302(b)(8)(A).               The
      administrative judge considered the testimony of the RAC and the FTO that the
      appellant based her allegation of racial profiling at the gun range simply on the
      local detective’s presence in the predominately Hispanic trailer park and the fact
      that the surnames on the list he provided appeared to be of Hispanic origin. ID
                                                                                           7

      at 11.     The administrative judge observed that the FTO and the RAC both
      described the appellant’s comments about racial profiling as a “confusing and
      poorly conceptualized mess.” Id. The administrative judge also considered the
      testimony of the RAC that he was concerned that the appellant did not know what
      racial profiling was and he encouraged her to go back to her FLETC materials and
      review the law. Id. The administrative judge further found that the appellant’s
      testimony about how her FTO and her RAC reacted to her racial profiling
      question was not credible. 3 Id.
¶12            Although the appellant disputes on review that she did not make a protected
      disclosure of racial profiling during her racial profiling conversation at the
      shooting range on April 22, 2010, we find no reason to disturb the administrative
      judge’s finding on this issue.       PFR File, Tab 1 at 5-6.       We find that the
      administrative judge thoroughly analyzed this issue and found that the RAC, the
      FTO, and another special agent who was at the shooting range that day gave
      highly credible testimony directly refuting key details of the appellant’s
      uncorroborated account of what transpired at the shooting range in determining
      that there was no protected disclosure. ID at 12. The Board will not disturb an
      administrative judge’s findings when, as in this case, he considered the evidence
      as a whole, drew appropriate inferences, and made reasoned conclusions of
      credibility. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997);
      Broughton v. Department of Health & Human Services, 33 M.S.P.R. 357, 359
      (1987). We therefore affirm the administrative judge’s finding that the appellant
      did not make a protected disclosure during her conversation at the gun range.



      3
        The administrative judge considered the appellant’s testimony that the RAC reacted to
      her racial profiling question by shouting at her, questioning her aggressively, and
      challenging her knowledge and loyalty to the office and law enforcement mission. ID
      at 6. The administrative judge also considered the appellant’s testimony that her FTO
      reacted to her racial profiling question by jumping up from his seat and pacing during
      the discussion. Id.
                                                                                      8

      The appellant has proven that her protected disclosure in her April 22, 2010 email
      to her RAC was a contributing factor in the agency’s actions by satisfying the
      knowledge/timing test.
¶13        To prevail in her reprisal claim, the appellant must prove by preponderant
      evidence that her protected disclosure in her April 22, 2010 email was a
      contributing factor in her termination. See 5 U.S.C. § 1221(e)(1). An employee
      may demonstrate that a disclosure was a contributing factor in a personnel action
      through circumstantial evidence, such as evidence that the official taking the
      personnel action knew of the disclosure, and that the personnel action occurred
      within a period of time such that a reasonable person could conclude that the
      disclosure was a contributing factor in the personnel action. Scott v. Department
      of Justice, 69 M.S.P.R. 211, 238 (1995), aff’d, 99 F.3d 1160 (Fed. Cir. 1996)
      (Table).      The Board commonly refers to this method of proof as the
      knowledge/timing test. The Board has found that a period of more than 1 year
      between a protected disclosure and a personnel action can satisfy the
      knowledge/timing test. See Jones v. Department of the Interior, 74 M.S.P.R. 666,
      676 (1997).
¶14        The agency official who decided to terminate the appellant testified that she
      became aware of the appellant’s racial profiling concerns shortly after she
      expressed them. ID at 16; HCD (testimony of the SAC). Given the deciding
      official’s knowledge of the appellant’s protected disclosure, and the proximity in
      time of less than 4 months between the appellant’s protected disclosure and her
      termination on August 10, 2011, we affirm the administrative judge’s finding that
      the appellant has shown that her protected disclosure was a contributing factor to
      her termination under the knowledge/timing test. ID at 16.
      The agency proved by clear and convincing evidence that it would have
      terminated the appellant in the absence of her protected disclosure.
¶15        The remaining issue is whether the agency met its burden of proving by
      clear and convincing evidence that it would have terminated the appellant even in
      the absence of her whistleblowing activity. In determining whether an agency has
                                                                                       9

      met this burden, the Board will consider the following factors: (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 agency officials who were involved in the
      decision; and (3) any evidence that the agency takes similar actions against
      employees who are not whistleblowers 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.        Rather, the Board will
      weigh the factors together to determine whether the evidence is clear and
      convincing as a whole.         See, e.g., Yunus v. Department of Veterans
      Affairs, 84 M.S.P.R. 78, ¶ 27 (1999), aff’d, 242 F.3d 1367 (Fed. Cir. 2001).
            The strength of the agency’s evidence in support of the appellant’s
            termination.
¶16        In the letter terminating the appellant for performance and conduct reasons,
      the agency specified that the appellant:     (1) responded to a traffic stop on
      April 14, 2010, without functional clothing or a visible weapon, and failed to
      follow her FTO’s instructions; (2) arrived 30 minutes late for an Operation
      Crosscheck briefing that she was scheduled to lead on April 27, 2010; (3) refused
      to pat down a subject incident to an arrest, as part of Operation Crosscheck, on
      April 27, 2010; (4) failed to prepare for an interview as instructed, on April 30,
      2010; (5) falsely identified an investigative subject within a criminal
      investigation database on May 25, 2010, because of her failure to conduct a
      thorough investigation; (6) arrived 30 minutes late for an operational briefing on
      June 11, 2010; and (7) failed to locate a fake lawful permanent resident card in a
      bag search on June 29, 2010, because of her failure to conduct a thorough
      investigation. IAF, Tab 12 at 106-07. The agency also noted the appellant’s poor
      attitude and marginal performance rating at the FLETC. Id. at 107.
¶17        Regarding the first Carr factor, the administrative judge found that the
      agency provided strong evidence that it had legitimate reasons to terminate the
                                                                                            10

      appellant during her trial period. ID at 24. The administrative judge noted that
      the deciding official, the SAC, testified that she terminated the appellant based on
      her undisputed poor conduct and performance at FLETC, and her poor conduct
      and performance in Panama City as reported by her FTO and the RAC. 4 ID at 6.
      The administrative judge also noted the deciding official’s testimony that the
      appellant’s racial profiling disclosure had no bearing on her termination.            ID
      at 27.    The administrative judge found that the deciding official was a highly
      credible witness, and that the FTO, the RAC, and the other agency witnesses
      credibly testified about the incidents cited by the deciding official in her
      termination letter. ID at 18-26.
¶18            Turning to the appellant’s arguments regarding the first Carr factor, the
      administrative judge considered that the appellant admitted many of the incidents
      cited in her termination letter, but argued that some of her actions were justified.
      For example, the administrative judge considered the appellant’s argument that
      she refused her FTO’s April 27, 2010 order to conduct a pat down weapons
      search because she understood that her FTO wanted her to perform a more
      intrusive physical search of the male subject in violation of agency policy. ID
      at 21.     The administrative judge nonetheless found that the FTO directed the
      appellant only to perform a pat down search, having made a demeanor-based
      determination that her FTO’s testimony on this issue was firm, unhesitating, and


      4
        It is undisputed that the appellant received a student evaluation at FLETC dated
      March 12, 2010, rating her performance from September 20, 2009 to March 5, 2010, as
      marginal in professionalism, attitude, dependability, participation, cooperativeness, and
      initiative. IAF File, Tab 12 at 10. The comments section of her student evaluation also
      noted that one of her physical techniques instructors rated her as the worst student he
      had seen in 4 years. Id. It also is undisputed that the FLETC Section Chief over basic
      training and the FLETC Director of Training approached the SAC in
      mid-February 2010, before the appellant graduated from FLETC and began working in
      the field office under the SAC’s operational control, and informed the SAC of the
      appellant’s performance problems. ID at 4-5. Specifically, they informed the SAC of
      the appellant’s tardiness, lack of motivation, poor attitude, failure to follow
      instructions, and problems getting along with other students at the FLETC. Id.
                                                                                          11

      credible.   ID at 21-22.     The administrative judge also found that the FTO’s
      testimony was consistent with his contemporaneous notes about the incident and
      was corroborated by the RAC. ID at 22. In contrast, the administrative judge
      found improbable the appellant’s testimony that her FTO spontaneously selected
      one subject for an invasive search by the appellant in the presence of several
      other officers. Id.
¶19         The   Board     must    defer   to   an   administrative   judge’s    credibility
      determinations based, explicitly or implicitly, on the observation of the demeanor
      of witnesses testifying at a hearing, and may overturn such determinations only
      when it has “sufficiently sound” reasons to for doing so. Haebe v. Department of
      Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant argues on review
      that the administrative judge did not base his credibility determinations on his
      observations of the witnesses’ demeanor at the hearing. PFR File, Tab 1 at 8, 15.
      We disagree.    The administrative judge explicitly made thorough and detailed
      credibility determinations in accordance with the Board’s framework in Hillen v.
      Department of the Army, 35 M.S.P.R. 453, 458 (1987), and he considered the
      witnesses’ demeanor in his analysis. 5 ID at 7-23. The administrative judge also
      considered the appellant’s explanations for the other incidents cited in the
      termination letter, but found that each incident cited in the deciding official’s
      termination decision letter was well supported by the record. ID at 24. Although
      the appellant takes exception to some of the administrative judge’s factual
      findings in analyzing the parties’ evidence, she does not dispute his finding that


      5
        To resolve credibility issues, an administrative judge must identify the factual
      questions in dispute, summarize the evidence on each disputed question, state which
      version he believes, and explain in detail why he found the chosen version more
      credible, considering such factors as: (1) the witness’s opportunity and capacity to
      observe the event or act in question; (2) the witness’s character; (3) any prior
      inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the
      contradiction of the witness’s version of events by other evidence or its consistency
      with other evidence; (6) the inherent improbability of the witness’s version of events;
      and (7) the witness’s demeanor. Hillen, 35 M.S.P.R. at 458.
                                                                                            12

      the agency had strong evidence to support her termination. 6 We therefore find no
      reason to disturb the administrative judge’s finding on this issue.
¶20         The      appellant   argues   on   review   that   the     administrative   judge’s
      determination that the SAC and the RAC provided credible testimony is
      inconsistent with the evidence.      PFR File, Tab 1 at 7-8.         First, the appellant
      asserts specifically that the SAC did not credibly testify that on May 4, 2010, she
      had not already decided to terminate the appellant.            Id. at 11.   The appellant
      argues that this testimony was not credible because on May 4, 2010, the SAC
      already knew about the appellant’s racial profiling disclosure and all of her
      performance deficiencies cited in her August 9, 2010 termination letter, except
      for the three incidents that occurred after May 4, 2010. Id. at 9-12; IAF, Tab 9
      at 13. The appellant submits that this proves the SAC had already decided to
      terminate the appellant in retaliation for her racial profiling allegation. PFR File,
      Tab 1 at 11.
¶21         Likewise, the appellant disputes the SAC’s credibility insofar as she
      testified that she did not forward the appellant’s racial profiling allegations for
      investigation because she assumed that the RAC had handled it. Id. at 12-13.
      The appellant argues that the SAC’s testimony on this issue is improbable
      because, inter alia, “[t]he ‘tag’ of racial profiling in law enforcement is
      stigmatizing,” and because the SAC was “an ‘interested witness’ to an allegation
      of racial profiling in her area of responsibility.” Id. at 13. We find that the
      appellant’s arguments on review constitute mere disagreement with the
      administrative judge’s credibility determinations and fact findings, which does
      not warrant reversal of the initial decision.


      6
         For example, the appellant disputes the administrative judge’s finding that she
      provided “deliberately false” testimony about arriving late to a meeting on April 27,
      2010. ID at 20; PFR File, Tab 1 at 25. The appellant states that she never denied being
      late and attempts to explain her testimony that the administrative judge construed as
      false. PFR File, Tab 1 at 25.
                                                                                       13

¶22        As to the administrative judge’s finding that the RAC was a credible
      witness, the appellant argues that the administrative judge failed to consider that
      the RAC was an interested witness in the proceeding because he supervised the
      office where the alleged racial profiling occurred. Id. at 14-21. The appellant
      also argues “that the record is replete with evidence that [the] RAC . . . was quite
      concerned about the Appellant’s allegations and had a desire to keep the lid on
      the disclosures.” Id. at 15. In support of her argument, the appellant asserts that
      her RAC gave a false account of what transpired at the gun range in the April 23,
      2010 email he sent to the appellant. She also asserts that the RAC routinely sent
      the FTO copies of his emails to the appellant, but the RAC deliberately did not
      include her FTO on the April 23, 2010 email to avoid incrimination because he
      too was at the gun range and may have remembered what occurred. Id. at 17-18.
      The appellant contends that the administrative judge failed to consider this
      critical information in assessing the RAC’s credibility. Id. at 15. The appellant
      also argues that the RAC’s testimony that the appellant’s racial profiling
      allegations at the gun range were a “confusing and poorly conceptualized mess” is
      inconsistent with the content of their April 22-23, 2010 email exchange. Id.
¶23        Based on our review of the record, we find that the RAC provided
      consistent testimony concerning the material facts as found by the administrative
      judge.   ID at 12-15.   The appellant offered no new and material evidence on
      review to support her arguments that the RAC made false statements in his
      August 23, 2010 email or that the RAC and her FTO were not credible.            We
      further find that the record reflects that the administrative judge properly
      considered the record as a whole, including the appearance and substance of the
      April 22-23, 2010 emails about the appellant’s racial profiling disclosure and the
      witnesses’ hearing testimony, in making his credibility determinations in
      accordance with the Board’s guidance in Hillen. ID at 7-24.
¶24        Moreover, although the appellant further argues that the administrative
      judge failed to consider certain evidence, it is well settled that an administrative
                                                                                         14

      judge’s failure to mention all the evidence in the record does not mean that he did
      not consider it in reaching his decision. Marques v. Department of Health &
      Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir.
      1985) (Table). The appellant raises many other allegations, all of which we have
      reviewed, but we find no basis for disturbing the administrative judge’s
      demeanor-based credibility determinations. 7         See Frey v. Department of
      Labor, 359 F.3d 1355, 1361 (Fed. Cir. 2004) (finding that the evaluation of
      witness credibility is a matter within the administrative judge’s discretion and is
      “virtually unreviewable”).     Having considered the appellant’s arguments on
      review, we affirm the administrative judge’s finding that the agency provided
      strong evidence that it had legitimate reasons to terminate the appellant during
      her trial period. ID at 24.
            The existence and strength of any motive to retaliate on the part of agency
            officials who were involved in the decision.
¶25         When applying the second Carr factor, the Board will consider any motive
      to retaliate on the part of the agency officials who ordered the action, as well as
      any motive to retaliate on the part of other officials who influenced the decision.
      See Carr, 185 F.3d at 1326. In Whitmore v. Department of Labor, 680 F.3d 1353,
      1370 (Fed. Cir. 2012), the U.S. Court of Appeals for the Federal Circuit cautioned
      the Board against taking an unduly dismissive and restrictive view of retaliatory
      motive, holding that, “[t]hose responsible for the agency’s performance overall
      may well be motivated to retaliate even if they are not directly implicated by the


      7
        For example, the appellant argues that the administrative judge observed that the
      agency’s witnesses had no prior performance and conduct problems, unlike the
      appellant, to suggest that she “had a propensity for erroneous decision-making, while
      the other Agency witnesses did not.” PFR File, Tab 1 at 26. The appellant submits this
      as proof that the administrative judge engaged in an “inappropriate attempt at
      bootstrapping the ‘credibility’ of agency witnesses because of the absence of
      something.” Id. Our review of the administrative judge’s well-reasoned credibility
      determinations in the initial decision, however, does not support the appellant’s
      argument. ID at 3-27.
                                                                                          15

      disclosures, and even if they do not know the whistleblower personally, as the
      criticism reflects on them in their capacities as managers and employees.”
¶26         Here, the administrative judge found no evidence that the agency had any
      motive to retaliate primarily because the local police officer who generated the
      list of Hispanic surnames did not work for the agency and, before the appellant
      made her alleged protected disclosure, the officer leading Operation Crosscheck
      refused to include the local officer’s list of names in his operation plan. 8 ID
      at 8-10, 24. The administrative judge also noted, inter alia, that the RAC testified
      that he believed that the appellant’s racial profiling concerns were unwarranted,
      and that his April 23, 2010 email reiterated to the appellant that the agency would
      not tolerate racial profiling and employees should report it. ID at 24-25.
¶27         The appellant’s primary argument on review is that the administrative judge
      took an uncritical view of the SAC’s and the RAC’s motive to dissemble. PFR
      File, Tab 1 at 7, 15. She also appears to argue that the administrative judge failed
      to consider her disclosure in its entirety in analyzing the agency’s motive to
      retaliate.   Id. at 22-24.   For the reasons explained below, we find that the
      administrative judge took an unduly restrictive view of the evidence under the
      second Carr factor.
¶28         The appellant directly implicated her FTO in her protected disclosure by
      alleging that he used the local police officer’s list of Hispanic surnames, and he
      accessed sensitive HSI databases to check the immigration status of the people on
      that list, without any reasonable suspicion of criminal activity. Her FTO reported
      to the appellant’s supervisor, the RAC. ID at 5. The RAC reported to the SAC,
      who oversaw operations at the Panama City duty station and decided to terminate
      the appellant. ID at 4; IAF, Tab 9 at 17. Although the appellant’s disclosure did

      8
        Operations Crosscheck was under the authority and control of the agency’s Detention
      and Removal Operations (DRO). ID at 8. The DRO officer leading Operation
      Crosscheck asked the RAC for the assistance of his HSI field office and that assistance
      included acting as a liaison with the local police and the county probation and parole
      office. ID at 8-9.
                                                                                        16

      not directly implicate or harm the RAC or the SAC, her protected disclosure
      reflected poorly on them in their capacities as supervisory employees, which is
      sufficient to establish a retaliatory motive.   See Whitmore, 680 F.3d at 1370.
      Thus, we find that there may have been some motive to retaliate against the
      appellant for her protected disclosure. We therefore modify the initial decision to
      vacate the administrative judge’s finding that there was no evidence of a motive
      to retaliate.
             Any evidence that the agency takes similar actions against employees who
             are not whistleblowers but who are otherwise similarly situated.
¶29         Regarding the third Carr factor, the administrative judge found that the
      parties presented very little evidence for him to consider concerning whether the
      agency takes similar actions against nonwhistleblower employees who are
      otherwise similarly situated to the appellant. ID at 27. The administrative judge
      noted that the deciding official testified that she had never seen a trainee agent
      with monthly performance ratings as negative as were the appellant’s, and that
      she had proposed the termination of the only other special agent under her
      supervision who received a “marginal” FLETC evaluation; but he resigned before
      he was terminated. Id. The administrative judge did not find, however, that the
      special agent who resigned was similarly situated to the appellant. Moreover, the
      parties offered no evidence or argument addressing this Carr factor on review.
      We therefore find that the third Carr factor is insignificant to our analysis of this
      case. See Whitmore, 680 F.3d at 1374 (recognizing that the absence of evidence
      relating to the third Carr factor “can effectively remove that factor from the
      analysis”).
¶30         Weighing all the Carr factors against one another, we agree with the
      administrative judge that the agency met its burden of proving by clear and
      convincing evidence that it would have terminated the appellant absent her
      protected disclosure. Although we find that the agency officials involved in the
      termination decision had some motive to retaliate, we conclude that the agency
                                                                                    17

had a very strong basis to terminate the appellant for her poor performance and
conduct. We therefore conclude that the administrative judge properly denied the
appellant’s request for corrective action.

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
      The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request review of this final decision by the U.S. 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 U.S. 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 U.S. 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.
                                                                                 18

      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 U.S. 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 U.S. 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 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 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:                               ______________________________
                                             William D. Spencer
                                             Clerk of the Board
Washington, D.C.
