       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                  JOHN HOWARD,
                     Petitioner,

                           v.

      DEPARTMENT OF TRANSPORTATION,
                  Respondent.
            ______________________

                      2012-3143
                ______________________

    Appeal from the Merit Systems Protection Board in
No. SF1221110384-W-1.
                ______________________

               Decided: March 11, 2013
               ______________________

      CHRISTOPHER D. VAUGHN, The Vaughn Law Firm,
LLC, of Decatur, Georgia, for petitioner.
      DANIEL G. KIM, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Acting Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and TODD M.
HUGHES, Deputy Director. Of counsel on the brief was
ALEXANDRA R. RANDAZZO, Office of the Chief Counsel,
Federal Aviation Administration, of Washington, DC.
2          JOHN HOWARD   v. DEPARTMENT OF TRANSPORTATION
                 ______________________

Before LOURIE, PLAGER, and WALLACH, Circuit Judges.
PER CURIAM.
     John Howard appeals the decision of the Merit Sys-
tem Protection Board (“MSPB” or “Board”) denying his
petition for review and adopting, with modification, the
initial decision of an MSPB Administrative Judge. The
Administrative Judge affirmed the decision by the Feder-
al Aviation Administration (“FAA”) to terminate Mr.
Howard’s temporary assignment as a Supervisory Air
Traffic Control Specialist (“SATC”) and to return him to
his permanent position as a facility Air Traffic Control
Specialist (“ATCS”). We affirm.
                       BACKGROUND
    The crux of this dispute lies in whether Mr. Howard
engaged in protected whistleblowing activity pursuant to
the Whistleblower Protection Act (“WPA”), 5 U.S.C. §
2302, and was demoted from SATC to ATCS by the FAA
in retaliation as a result. 1
    Mr. Howard alleges that in November 2007, he en-
gaged in protected activities that included reporting the
misconduct of another air traffic controller to his supervi-
sor (“November Disclosure”). Howard v. Dep’t of Transp.,
SF-1221-11-0384-W-1, 2011 MSPB LEXIS 5589, at *2
(M.S.P.B. Sept. 15, 2011) (“Initial Decision”).




    1    A disclosure is generally protected if the employee
reasonably believes the disclosure shows “(i) any violation
of any 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).
 JOHN HOWARD   v. DEPARTMENT OF TRANSPORTATION           3
    In December 2007, Mr. Howard was offered a tenta-
tive job promotion to SATC. Id. at *3-4. In January 2008,
Mr. Howard was promoted to the SATC position “effective
February 3, 2008, for a term not to exceed (NTE) Febru-
ary 1, 2010, with a remark as follows: Temporary promo-
tion may be terminated sooner depending on agency
needs.” Id. at *5 (internal citations omitted and capitali-
zation altered).
    Also in December 2007, Mr. Howard was reprimanded
for making inappropriate statements to a fellow employ-
ee. Id. at *3-4. The reprimand was later reduced to an
admonishment. Id. at *4. In June and July of 2008, Mr.
Howard was moved to a different team and was told he
would receive closer oversight by his supervisory in re-
sponse to his making inappropriate comments to female
subordinates. Id. at *5-6. This later incident was investi-
gated by the Accountability Board. Id. at *28.
    In May 2009, Mr. Howard was terminated from his
SATC position and returned to his ATCS position. Id. at
*6-7. Mr. Howard then filed a complaint with the Office
of Special Counsel (“OSC”) “alleging that the termination
of the NTE assignment was based on his [November]
Disclosure . . . . Id. at *7. The OSC informed Mr. Howard
that it had closed the investigation, and Mr. Howard then
appealed. Id.
     In his Initial Decision, the Administrative Judge de-
nied Mr. Howard’s request for corrective action. Id. at
*41. The Administrative Judge first found “it most effi-
cient to assume arguendo that the appellant made a
protected disclosure . . . .” Id. at *13. The Administrative
Judge also found support in the record that Mr. Howard
failed to “meet [the] expectations of leadership” associated
with the SATC position, and was terminated for that
reason. Id. at *37-38. Accordingly, although the termina-
tion of Mr. Howard’s temporary assignment occurred after
the protected disclosure, the Administrative Judge ulti-
4          JOHN HOWARD    v. DEPARTMENT OF TRANSPORTATION
mately found that the agency had shown by clear and
convincing evidence that it would have taken the disputed
personnel action regardless of any whistleblowing activi-
ty. Id. at *41. 2
     Mr. Howard filed an individual right of action appeal
with the Board; the Board denied Mr. Howard’s petition
for review, adopting with modification the Initial Decision
of the Administrative Judge as its Final Decision. Howard
v. Dep’t of Transp., SF-1221-11-0384-W-1, 117 M.S.P.R.
610, 610 (M.S.P.B. 2012) (“Final Decision”).
    Mr. Howard filed a timely appeal. We have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(9).
                        DISCUSSION
    A federal employee may seek corrective action from
the Board when personnel action has been taken in
retaliation for a WPA-protected disclosure. Fields v. Dep’t
of Justice, 452 F.3d 1297, 1302 (Fed. Cir. 2006) (citing 5
U.S.C. § 1221(a)). This court must uphold a decision of
the Board unless it is “(1) arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c); see also Bennett
v. Merit Sys. Prot. Bd., 635 F.3d 1215, 1218 (Fed. Cir.


    2   The appellant has the burden to prove, by prepon-
derant evidence, that he engaged in whistleblowing
activity by making a protected disclosure under 5 U.S.C. §
2302(b)(8) and that any such disclosure(s) was a contrib-
uting factor in the personnel action at issue; if he does so,
the Board must order corrective action unless the agency
establishes by clear and convincing evidence that it would
have taken the same personnel action in the absence of
the disclosure(s). See Kewley v. Dep’t of Health & Human
Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).
 JOHN HOWARD   v. DEPARTMENT OF TRANSPORTATION           5
2011). We review evidentiary and discovery rulings for
abuse of discretion and will reverse only if the petitioner
can “prove that the error caused substantial harm or
prejudice to his rights which could have affected the
outcome of the case.” Curtin v. Office of Pers. Mgmt., 846
F.2d 1373, 1379 (Fed. Cir. 1988). In addition, credibility
determinations are “virtually unreviewable on appeal.”
Rogers v. Dep’t of Def. Dependents Sch., 814 F.2d 1549,
1554 (Fed. Cir. 1987).
    Mr. Howard argues the Board erred and should be re-
versed because (1) the Administrative Judge improperly
considered evidence, (2) Mr. Howard’s “Cat’s Paw” theory
was improperly applied, and (3) the Administrative Judge
made improper character determinations of multiple
witnesses. [BB 11.] We consider each argument in turn.
    First, Mr. Howard objects to the Administrative
Judge’s consideration of multiple pieces of evidence. Mr.
Howard argues that the Administrative Judge improperly
considered the letter of admonishment Mr. Howard re-
ceived in December 2007, which had been reduced from a
reprimand, for inappropriate comments made to a
coworker. [BB 13.] However, Mr. Howard himself identi-
fied the letter of admonishment (and the earlier letter of
reprimand) as one of the FAA’s several allegedly retalia-
tory actions against him. Resp’t App. 24-26 (Mr. How-
ard’s OSC complaint); see Briley v. Nat’l Archives &
Records Admin., 236 F.3d 1373, 1377 (Fed. Cir. 2001).
The Administrative Judge did not abuse his discretion
considering the letter of admonishment brought into issue
by Mr. Howard. 3


   3   Additionally, the Board found that “[t]here is no in-
dication that the Administrative Judge relied upon the
admonishment as support for the agency’s decision to
terminate the appellant’s term supervisory appointment.”
Final Decision at 610.
6          JOHN HOWARD   v. DEPARTMENT OF TRANSPORTATION
     Similarly, the Administrative Judge properly consid-
ered Mr. Howard’s “unwelcome remarks to subordinate
female employees.” Initial Decision at *36. 4 Mr. Howard
argues because the Accountability Board found he acted
with no malice and did not punish him for his comments,
the Administrative Judge and the Board acted contrary to
the Accountability Board’s finding and did not “look[ ] into
any of the facts.” Pet. Br. at 16-17. However, the record
does not support this contention. In fact, the Administra-
tive Judge found that he “ha[d] no reason to doubt [Mr.
Howard’s] contention that he had no malicious intent,”
but also noted that Mr. Howard’s comments were deemed
sufficiently inappropriate so as to warrant counseling,
following the Accountability Board’s investigation. Initial
Decision at *36-37. Mr. Howard did not dispute this
finding. The Administrative Judge assessed the record
and did not abuse his discretion in considering these
remarks. 5


    4   As an initial matter, Mr. Howard notes that the
Administrative Judge incorrectly cited to an admonish-
ment to the wrong John Howard, a John R. Howard. [BB
15.] However, we find nothing inappropriate with the
Board’s determination that although “[i]t appears that
the administrative judge incorrectly referenced, in his
statement of background facts and analysis of the
strength of the agency’s evidence, the written admonish-
ment of a different individual mistakenly included in the
agency file,” that, notwithstanding, the Administrative
Judge “also appropriately relied upon other evidence that
did relate to the appellant in support of the agency’s
decision to terminate his supervisory term appointment.”
Final Decision at 610. This is the basis of the Board’s
modification of the Administrative Judge’s Initial Deci-
sion. See Final Decision at 610.
    5  Mr. Howard also argues that the Administrative
Judge improperly considered evidence of his choice of a
 JOHN HOWARD   v. DEPARTMENT OF TRANSPORTATION            7


    Turning to Mr. Howard’s other arguments, Mr. How-
ard’s “Cat’s Paw” theory was properly rejected. According
to Mr. Howard, “a plaintiff may present evidence that an
adverse employment decision was discriminatory, ‘despite
the innocence of the employer’s nominal decisionmaker by
showing that such innocent party simply relied upon,
without himself evaluating the plaintiff’s situation, a
recommendation or false information offered by someone
else because of a prohibited animus.’” Pet. Br. at 18 (citing
Curtis v. Teletech Customer Care Mgmt. (Telecommunica-
tions), Inc., 208 F. Supp. 2d 231, 1243 (N.D. Ala. 2002)).
Based on this theory, Mr. Howard argued that, in retalia-
tion for the November Disclosure, another official had
“influenced [the managerial official who terminated Mr.

certain employee as Controller In Charge (“CIC”) who
eventually was found to be unqualified for the position.
[BB 17.] Here, the Administrative Judge concluded that
the CIC certification decision contributed to the termina-
tion of Mr. Howard’s assignment. Initial Decision at *37.
He cited the undisputed fact that Mr. Howard certified
this employee despite her lack of qualifications. Id.
Although Mr. Howard argues this information should not
have been considered for various reasons and that the
Administrative Judge failed to consider the reasons he
offered, Mr. Howard fails to explain how those arguments
would have altered the Administrative Judge’s well-
supported conclusion. Additionally, merely because a
decision does not mention a particular point “forms no
basis for an assumption that it did not consider those
elements.” Windsurfing Int’l Inc. v. AMF, Inc., 782 F.2d
995, 998-99 (Fed. Cir. 1986); see also Perkin-Elmer Corp.
v. Computervision Corp., 732 F.2d 888, 901 (Fed. Cir.
1984) (holding that when “a court does not discuss certain
propositions,” that “does not make the decision inade-
quate or suggest the court failed to understand them”).
8          JOHN HOWARD   v. DEPARTMENT OF TRANSPORTATION
Howard] by poisoning her first impression of Mr. How-
ard.” Initial Decision at *24.
     Mr. Howard, however, wholly fails to establish that
any individual sufficiently exerted influence on the mana-
gerial official who terminated Mr. Howard so as to impute
knowledge of the November Disclosure to the official, and
thus providing a motivation to retaliate. This lack of
evidence is fatal to Mr. Howard’s claim. To the contrary,
substantial evidence supports the Administrative Judge’s
finding that Mr. Howard failed to “meet [the] expectations
of leadership” associated with the SATC position, and was
terminated for that reason. Id. at *37-38.
    Finally, Mr. Howard argues that the Administrative
Judge’s credibility determinations of various witnesses
were incorrect. [BB 21.] As noted above, credibility de-
terminations are “virtually unreviewable on appeal.”
Rogers, 814 F.2d at 1554. Here, Mr. Howard’s complaints
amount to disagreement with the Administrative Judge’s
determinations, and therefore there is no basis for dis-
turbing these determinations on appeal. 6




    6  In fact, the Administrative Judge presented a thor-
ough credibility assessment of each of the FAA witnesses,
based upon his personal observations of them as they
testified. Specifically, the Administrative Judge noted
that each of these witnesses provided “unequivocal”
testimony “based on [his or her] personal knowledge as a
percipient witness.” Initial Decision at *31-34. He noted
the level of specificity and detail with which each witness
testified, as well as the extent to which each witness’s
testimony was consistent with that of other witnesses
(and with Mr. Howard’s testimony). Id.
 JOHN HOWARD   v. DEPARTMENT OF TRANSPORTATION      9
                      CONCLUSION
    Finding substantial evidence supporting the Board’s
decision, it is
                      AFFIRMED.
