                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JOY CHACON,                                     DOCKET NUMBER
                         Appellant,                  NY-1221-14-0372-W-1

                  v.

     DEPARTMENT OF HEALTH AND                        DATE: January 4, 2017
       HUMAN SERVICES,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Joy Chacon, Valley Stream, New York, pro se.

           Alisa W. Cupid, New York, New York, 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 this 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; th e 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. 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 and
     AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
     § 1201.113(b).
¶2         The appellant is a Quality Assurance Manager for the Department of Health
     and Human Services, Food and Drug Administration. E.g., Initial Appeal File
     (IAF), Tab 1. During the time period relevant to this appeal, her duties included
     working to ensure that the agency’s Northeast Regional Laboratory was in
     compliance with its Quality Management System.         E.g., IAF, Tab 21 at 73-80,
     Tab 88, Hearing Compact Disc 1 (HCD1) (testimony of the appellant), Tab 89,
     Hearing Compact Disc 2 (HCD2) (testimony of the appellant). She also served as
     a liaison for bi-yearly audits by the American Association for Lab Accreditation.
     E.g., HCD1 (testimony of the appellant).       The appellant’s chain of command
     included Deputy Lab Director, K.H.; Lab Director, M.P.; and Deputy Director for
     the Northeast Region, C.B. E.g., IAF, Tab 93, Hearing Compact Disc 3 (HCD3)
     (testimony of K.H.), Tab 94, Hearing Compact Disc 4 (HCD4) (testimony of
     M.P.), Tab 95, Hearing Compact Disc 5 (HCD5) (testimony of C.B.).
¶3         In August 2014, the appellant filed the instant IRA appeal, alleging that the
     aforementioned    members     of   her   command    chain   engaged    in   improper
     whistleblower reprisal.    IAF, Tab 1.    The administrative judge found that the
     Board had jurisdiction over the appeal and held a hearing on the merits. IAF,
                                                                                              3

     Tab 99, Initial Decision (ID) at 1. She issued an initial decision, though, denying
     corrective action. ID at 1, 41.
¶4         Of the 28 matters 2 the appellant characterized as disclosures, which are
     discussed below, the administrative judge found that (1)-(3), (7), (11), (14), (21),
     and (24) included protected disclosures within the Board’ s jurisdiction. 3             ID
     at 13-17. She also determined that the appellant met her burden of proving by
     preponderant evidence that the disclosures were a contributing factor in a
     December 2012 suspension, a July 2013 suspension, and an August 2014
     suspension. 4 ID at 29-31. However, the administrative judge concluded that the
     agency met its burden of proving that it would have taken the actions in the
     absence of the disclosures. ID at 31-41. Therefore, she denied the appellant’s
     request for corrective action. ID at 41. The appellant has filed a petition for
     review. Petition for Review (PFR) File, Tab 1. The agency has filed a response.
     PFR File, Tab 3.




     2
       The initial decision listed these matters in full, numb ering them from (1)-(28). ID
     at 4-10. For the sake of clarity, this decision generally will refer to the associated
     number alone, further describing the disclosure only if necessary.
     3
       The administrative judge found that (6), (8), (9), (12), (15), (17) -(19), (25), and (27)
     were not disclosures, but were instead alleged retaliatory actions. ID at 5-10. She also
     found that (13), (20), (23), (26), and (28) were neither disclosures nor alleged
     retaliatory acts; they merely provided context such as the dates of the appellant’s filings
     with the Office of Special Counsel (OSC). ID at 6-10. The administrative judge next
     dismissed (10) and (22) for lack of jurisdiction because the appellant did not first raise
     them with OSC, ID at 6, 9, and found that (4), (5), and (16) were not protected, ID at 7,
     18-23.
     4
       Although the appellant also presented allegations of harassment and a hostile work
     environment stemming from her disclosures, the administrative judge found that she
     failed to meet her burden of proving that the actions were sufficiently severe or
     pervasive to significantly change her working conditions. ID at 23-29. Therefore, she
     found that these allegations did not constitute a personnel action under 5 U.S.C.
     § 2302(a)(2)(A)(xii). Id.
                                                                                            4

     The administrative     judge    did not   abuse    her     discretion   in   ruling   on
     discovery matters.
¶5         On review, the appellant alleges that the administrative judge erred in
     denying her motions to compel discovery.          PFR File, Tab 1 at 10.       She also
     alleges that the administrative judge erred by permitting the agency to depose her
     over multiple days and not requiring the agency to provide her with a copy of her
     deposition transcript. Id. We disagree.
¶6         In her first motion to compel, the appellant asserted that the agency’s
     responses to discovery requests had been inadequate. IAF, Tab 36 at 4. After a
     status conference, the administrative judge denied the motion, noting that the
     parties had agreed to confer on any outstanding discovery matters. IAF, Tab 37
     at 1. The appellant later filed a second motion to compel, wherein she provided a
     list of admissions, discovery requests, and interrogatory requests that she
     characterized as still unfulfilled. IAF, Tab 41 at 6-10.
¶7         Although the administrative judge found that the agency’s response to one
     interrogatory was insufficient, she otherwise denied the appellant’s second
     motion to compel. IAF, Tab 45. Concerning the requests for admissions, she
     found that the appellant simply disagreed with the agency’s responses, which
     were adequate. Id. at 2. Concerning the remaining interrogatories and document
     requests, she found that the agency made good faith efforts by providing, inter
     alia, 1,500 pages of responsive documents. Id. at 2-4. She also found that the
     appellant had neither shown why the agency’s responses were insufficient nor
     specified why additional information was relevant or appeared reasonably
     calculated to lead to the discovery of admissible evidence. Id.
¶8         An administrative judge has broad discretion in ruling on discovery matters
     and, absent a showing of abuse of discretion, the Board will not reverse an
     administrative judge’s discovery rulings.    Wagner v. Environmental Protection
     Agency, 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993)
     (Table). Here, although the appellant generally asserts that the administrative
                                                                                       5

      judge erred in denying her motions to compel, we discern no basis for concluding
      that the rulings were an abuse of discretion. The appellant has failed to explain,
      either below or on review, why the agency’s extensive responses were deficient.
      She also has failed to show why additional information was relevant or
      reasonably calculated to lead to the discovery of admissible evidence. Compare
      PFR File, Tab 1 at 10, with IAF, Tab 36 at 23-40; see 5 C.F.R. § 1201.72(a)
      (explaining that discovery is the process for obtaining relevant information,
      which includes “information that appears reasonably calculated to lead to the
      discovery of admissible evidence”).
¶9         The appellant’s allegations concerning her deposition are similarly
      unavailing.   She argues that the administrative judge erred in permitting the
      agency to depose her over multiple days, which the appellant characterized as
      oppressive.   PFR File, Tab 1 at 10.      However, the instant appeal involved
      numerous allegations of disclosures and retaliatory acts, implicating several
      management officials, over a number of years.      See, e.g., IAF, Tabs 1, 25-29.
      Given the complexity of the case, we find that the administrative judge exercised
      proper discretion in granting the agency a second day to complete its deposition.
      IAF, Tab 43, 49, 51. To the extent that the appellant is alleging that she was
      improperly denied a copy of the transcript for her deposition, she has failed to
      present any basis for us to conclude that she was entitled to one. PFR File, Tab 1
      at 10-11. Moreover, the transcript was made available in the record below. IAF,
      Tab 58, Tab 62 at 233-321.

      The administrative judge did not abuse her discretion in imposing sanctions.
¶10        The appellant next alleges that the administrative judge abused her
      discretion by imposing sanctions on the appellant after she failed to timely submit
      prehearing submissions and did not appear for the prehearing conference on its
      original or rescheduled dates. PFR File, Tab 1 at 11-13. We disagree.
                                                                                        6

¶11        An administrative judge may impose sanctions as necessary to serve the
      ends of justice. 5 C.F.R. § 1201.43. That authority includes the right to sanction
      a party for failure to comply with an order. Id.
¶12        While her appeal was pending below, the appellant failed to appear for
      scheduled prehearing conferences on Ma y 18, May 26, June 26, and July 7, 2015.
      See, e.g., IAF, Tabs 57, 63, 72. She also failed to submit her prehearing exhibits
      by the deadline set for doing so. Compare IAF, Tab 57, with IAF, Tabs 64-70,
      74-78. Lastly, she failed to respond to the administrative judge’s show cause
      order, which sought an explanation for the appellant’s prior failures and warned
      of possible sanctions. IAF, Tab 63.
¶13        On review, the appellant suggests that the administrative judge rescheduled
      deadlines and prehearing conferences without her knowledge or consent.
      PFR File, Tab 1 at 11. However, an administrative judge does not need a party’s
      prior consent to set a deadline or schedule a prehearing conference.      See, e.g.,
      Gavette v. Department of the Treasury, 44 M.S.P.R. 166, 174 (1990) (declining to
      find that the deadlines set by the administrative judge prejudiced an agency and
      observing that the agency did not object to the deadlines below); 5 C.F.R.
      § 1201.41(b)(12) (listing an administrative judge’s authority as including the
      authority to hold prehearing conferences). As a registered e-filer, the appellant is
      deemed to have received the orders in which the administrative judge notified the
      parties about the deadlines for submissions and scheduling of prehearing
      conferences. IAF, Tab 1 at 1, Tabs 55, 57; see 5 C.F.R. § 1201.14(m)(2).
¶14        The appellant also suggests that the administrative judge sanctioned her, in
      part, for her having withdrawn from a voluntary settlement conference. PFR File,
      Tab 1 at 11-12. However, there is nothing in the record to support this claim.
      The record shows that the administrative judge sanctioned the appellant for her
      repeated failure to comply with orders, as detailed above.      The administrative
      judge allowed the appellant to testify, but sanctioned her by prohibiting her from
      introducing additional witnesses or exhibits at the hearing.     IAF, Tabs 72, 82.
                                                                                            7

      Under these circumstances, given the appellant’s repeated failure to follow
      orders, even in the face of warnings that sanctions could result, we find the
      sanctions appropriate. 5    See, e.g., Heckman v. Department of the Interior,
      106 M.S.P.R. 210, ¶¶ 8-9 (2007) (recognizing that it was appropriate to cancel an
      appellant’s hearing after she failed to comply with three separate order s, despite
      warnings of possible sanctions).

      The appellant has failed to establish any basis for granting her request for
      corrective action.
¶15         To prevail on the merits of her whistleblower reprisal claim, an appellant
      has the burden of proving by preponderant evidence that (1) she made a protected
      disclosure, and (2) her protected disclosure was a contributing factor in the
      challenged personnel action.       Aquino v. Department of Homeland Security,
      121 M.S.P.R. 35, ¶ 10 (2014). A protected disclosure is one that the employee
      reasonably believes evidences one or more of the categories of wrongdoing listed
      in 5 U.S.C. § 2302(b)(8), even if her belief is mistaken. Mithen v. Department of
      Veterans Affairs, 122 M.S.P.R. 489, ¶ 24 (2015), aff’d, 652 F. App’x 971 (Fed.
      Cir. 2016). The test for determining whether an employee’s belief regarding the
      disclosed matter is reasonable 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 of the agency evidenc e the wrongdoing
      disclosed. Mithen, 122 M.S.P.R. 489, ¶ 24.
¶16         If an appellant establishes her prima facie case, then the burden shifts to the
      agency to prove by clear and convincing evidence that it would have taken the
      same action in the absence of the disclosure.         5 U.S.C. § 1221(e)(2); Aquino,
      121 M.S.P.R. 35, ¶ 10.



      5
       To the extent that the appellant suggests that the administrative judge excluded her
      untimely prehearing submissions as part of the sanctions, the record reflects otherwise.
      Compare PFR File, Tab 1 at 11-12, with, e.g., ID at 13, 15 (citing IAF, Tabs 67, 74).
                                                                                            8

            The appellant has not shown that the administrative judge erred in
            addressing disclosures (4), (5), (11), or (21).
¶17         The appellant disagrees with the administrative judge’s conclusion that she
      failed to prove that disclosures (4), (5), (11), and (21) were protected disclosures.
      PFR File, Tab 1 at 17-19. We discern no basis for disturbing the administrative
      judge’s findings.
¶18         In disclosure (4), the appellant reportedly notified C.B. that M.P. was
      obstructing lab reaccreditation requirements by failing to appoint a Quality
      System Deputy. ID at 5; IAF, Tab 30 at 14. In disclosures (11) and (21), she
      reportedly informed C.B. and others that M.P. and K.H. w ere continually
      obstructing reaccreditation activities.    ID at 6, 8-9; IAF, Tab 30 at 18, 26-27.
      According to the appellant, these disclosures evidenced a violation of law, rule,
      or regulation, gross mismanagement, and an abuse of authority.
¶19         The administrative judge concluded that disclosure (4) was not protected.
      ID at 18-19.    She similarly concluded that disclosure (11) and (21) were not
      protected to the extent that they implicated the same issue as disclosure (4). 6 Id.
      The administrative judge found that the appellant could not have had a reasonable
      belief that she was disclosing wrongdoing listed in 5 U.S.C. § 2302(b)(8)
      because, during the 3-year period at issue, there were only 5 months during which
      there was no Quality System Deputy. Id. (referencing IAF, Tab 60 at 150-56;
      HCD3 (testimony of K.H.); HCD4 (testimony of M.P.)).
¶20         On review, the appellant reasserts that there was not a Quality System
      Deputy appointed at all times relevant to her complaints. PFR File, Tab 1 at 17.
      However, she has failed to identify any evidence to support her claim.
      Accordingly, we agree with the administrative judge.          The appellant failed to
      meet her burden of proving that she had a reasonable belief that her disclosures


      6
        To the extent that disclosures (11) and (21) alleged reaccreditation obstruction other
      than that described in disclosure (4), the administrative judge found that they were
      protected. ID at 13-17.
                                                                                              9

      concerning the appointment of a Quality System Manager evidence wrongdoing
      listed in 5 U.S.C. § 2302(b)(8).
¶21            In disclosure (5), the appellant reportedly notified C.B. and others that
      A.C., K.H., and M.P. obstructed reaccreditation requirements by verbally
      accosting and intimidating an internal audit team, shutting down the audit, and
      taking no corrective follow-up management action.                ID at 5; IAF, Tab 30
      at 14-15. According to the appellant, these disclosures evidenced a violation of
      law, rule, or regulation, gross mismanagement, and an abuse of authority. ID
      at 20.
¶22            As to this disclosure, the administrative judge found that the appellant
      could not have had a reasonable belief that she was disclosing wrongdoing listed
      in 5 U.S.C. § 2302(b)(8) because, among other things, there was unrefuted
      testimony that the audit was stopped merely for a few days to provide a cooling
      down period after questioning between the auditors and those being audited
      became contentious.       ID at 20-23; HCD2 (testimony of the appellant); HCD3
      (testimony of K.H.); HCD4 (testimony of M.P.). The administrative judge also
      found, contrary to the appellant’s allegations, that the record revealed that the
      agency did take corrective action stemming from the temporary work stoppage
      and the appellant was aware of that corrective action. ID at 21-22 (referencing
      HCD3 (testimony of K.H.); HCD4 (testimony of M.P.); IAF, Tab 8 at 72-85).
¶23            On   review,   the   appellant   alleges   that   the   administrative   judg e’s
      consideration of disclosure (5) “contains a number of statements that are not
      facts, [and] omits mention of facts the appellant repeatedly informed [her] of
      during the hearing.” PFR File, Tab 1 at 17-19. However, the appellant has not
      clearly articulated any error that was prejudicial or otherwise demonstrated,
      through specific references to the record, that disclosure (5) was protected.
      See, e.g., Tines v. Department of the Air Force, 56 M.S.P.R. 90, 92 (1992)
      (explaining that a petition for review must contain sufficient specificity to en able
      the Board to ascertain whether there is a serious evidentiary challenge justifying a
                                                                                       10

      complete review of the record); Panter v. Department of the Air Force,
      22 M.S.P.R. 281, 282 (1984) (explaining that an adjudicatory error that is not
      prejudicial to a party’s substantive rights provides no basis for reversal of an
      initial decision); Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133-34
      (1980) (recognizing that mere disagreement with the administrative judge’s
      findings of fact and conclusions of law does not warrant full review by the
      Board).   Therefore, we find that her bare allegations do not state a basis for
      granting review.

             The appellant’s complaint to an equal              employment    opportunity
             representative is not a protected disclosure.
¶24         In disclosure (16), the appellant reportedly notified an equal employment
      opportunity (EEO) representative of M.P.’s and K.H.’s allegedly obstructing
      reaccreditation. ID at 7; IAF, Tab 30 at 23. The administrative judge concluded
      that this disclosure was not protected in the context of this appeal. ID at 7 n.11
      (citing Applewhite v. Equal Employment Opportunity Commission, 94 M.S.P.R.
      300, ¶ 13 (2003)). On review, the appellant summarily asserts that this was an
      erroneous interpretation of the law. PFR File, Tab 1 at 22. We disagree.
¶25         Reprisal for exercising an EEO right is a prohibited personnel practice
      under 5 U.S.C. § 2302(b)(9), not 5 U.S.C. § 2302(b)(8). Mudd v. Department of
      Veterans Affairs, 120 M.S.P.R. 365, ¶ 6 (2013). The Whistleblower Protection
      Enhancement Act of 2012 extended the Board’s jurisdiction over IRA appeals to
      claims of reprisal for filing complaints seeking to remedy whistleblower reprisal
      under 5 U.S.C. § 2302(b)(8), but not to other types of complaints, filed by the
      appellant on his or her own behalf, that do not concern remedying a violation of
      subparagraph (b)(8). Mudd, 120 M.S.P.R. 365, ¶¶ 6-7. Here, in disclosure (16),
      the   appellant    complained   that   her   management   chain   was   obstructing
      reaccreditation. E.g., IAF, Tab 30 at 23. Her complaint did not seek to remedy
      whistleblower reprisal. Therefore, although that EEO activity might be protected
      activity under 5 U.S.C. § 2302(b)(9)(A)(ii), it is not a protected disclosure within
                                                                                             11

      the Board’s jurisdiction in the context of this IRA appeal.                See 5 U.S.C.
      § 1221(a); Mudd, 120 M.S.P.R. 365, ¶¶ 6-7.

            The administrative judge properly found that the alleged harassment
            was not a “personnel action” under 5 U.S.C. § 2302(a)(2)(A).
¶26         The appellant asserts that the administrative judge erred in concluding that
      her claims of harassment did not rise to the level of a significant change in
      working conditions within the scope of 5 U.S.C. § 2302(a)(2)(A)(xii). PFR File,
      Tab 1 at 19‑22. We disagree.
¶27         In support of her harassment claim, the appellant alleged that she was
      threatened with a demotion, 7 ordered to have her emails authorized by supervisors
      before sending them, ordered to return her BlackBerry, forced to close complaints
      prematurely, directed to host an audit by the Canadian Regulatory Agency, given
      onerous work assignments, and subjected to intimidating actions and false
      statements.    ID at 23-24; IAF, Tabs 1, 30.       The administrative judge properly
      noted that 5 U.S.C. § 2302(a)(2)(A)(xii) defines “personnel action” as including
      “any other significant change in duties, responsibilities, or working conditions.”
      ID at 24. She also recognized that the aforementioned term should be interpreted
      broadly, to include harassment or discrimination that could have a chilling effect
      on whistleblowing. Id.; Savage v. Department of the Army, 122 M.S.P.R. 612,
      ¶ 23 (2015).
¶28         The administrative judge concluded that the appellant had failed to establish
      conditions that were objectively severe or pervasive enough to constitute a
      significant change in working conditions. ID at 28-29. She addressed each of the
      aforementioned allegations, finding some unsubstantiated and others more
      appropriately categorized as the appellant’s disagreements with her supervisor’s


      7
       Given the true nature of this allegation, as further discussed below, we find that it was
      proper for the administrative judge to address the matter as part of the appellant’s
      harassment claim under 5 U.S.C. § 2302(a)(2)(A)(xii), rather than as a distinct
      personnel action under 5 U.S.C. § 2302(a)(2)(A)(iii), (iv), or (ix).
                                                                                           12

      legitimate decisions.     ID at 24-28.     For example, the administrative judge
      recognized that, although the appellant claimed at the hearing that she was
      threatened with demotion, she later admitted that she merely had discussions with
      M.P. about the possibility of creating a new position that would have overlapping
      duties with the appellant’s. ID at 24; HCD1 (testimony of the appellant). During
      her cross-examination, the appellant acknowledged that agency officials made no
      mention of reassignment, decrease in pay, or demotion. 8          ID at 24-25; HCD2
      (testimony of the appellant). Management officials testified that they considered
      creating the position to help the appellant with her workload, but she objected
      because she would not have supervisory authority over the position. ID at 24-25;
      HCD3 (testimony of K.H.); HCD4 (testimony of M.P.). The administrative judge
      also found that while the appellant alleged that M.P. harassed and coerced her to
      close complaints prematurely, her testimony suggested the parties merely
      disagreed, and the appellant presented no evidence that management engaged in
      any impropriety.    ID at 28.    In addition, the administrative judge found that
      management had a legitimate basis for vetting any group email the appellant
      wanted to send; the appellant repeatedly had used email inappropriately and that
      misuse was the basis for one of her suspensions. ID at 26; see, e.g., IAF, Tab 9
      at 37-43, Tab 59 at 70-78.        The administrative judge further found that
      management took away the appellant’s BlackBerry, and the BlackBerrys of
      several other employees, to comply with a Presidential mandate. ID at 26; see,
      e.g., IAF, Tab 61 at 19-22.
¶29         On review, the appellant asserts that there were additional actions reflected
      in her submissions below that the administrative judge failed to consider as
      possible harassment. PFR File, Tab 1 at 19-20 (referencing IAF, Tab 96 at 9-10).
      Yet, she has failed to specifically identify what these additional actions were, and

      8
        In her petition for review, the appellant again has summarily characterized the matter
      as a threat of demotion. PFR File, Tab 1 at 20. However, she has failed to identify any
      evidence that indicates that she was threatened with a loss of pay or grade. Id.
                                                                                       13

      we are unable to discern any substantive omission in the initial decision.
      Compare IAF, Tab 96 at 9-10, with ID at 23-24; see generally Marques v.
      Department of Health & Human Services, 22 M.S.P.R. 129, 132 (1984)
      (recognizing that an administrative judge’s failure to men tion all of the evidence
      of record does not mean that she did not consider it in reaching her decision),
      aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
¶30        The appellant also asserts that it was improper for the administrative judge
      to reference her prior Equal Employment Opportunity Commission (EEOC) case
      in the initial decision, PFR File, Tab 1 at 19-20, but we disagree.             The
      administrative judge properly cited the EEOC decision, which was included in the
      record below, along with other evidence, to address the appellant’s claims. ID
      at 26-27; see IAF, Tab 62 at 198-232.
¶31        The appellant’s remaining arguments concerning the alleged harassment are
      similarly unavailing. Although the appellant disagrees with the administrative
      judge’s findings, she has failed to articulate any basis for concluding that she was
      subjected to harassment that rose to the level of a personnel action within the
      scope of 5 U.S.C. § 2302(a)(2)(A)(xii). See, e.g., Tines, 56 M.S.P.R. at 92.

      The administrative judge correctly determined that the agency established that it
      would have taken the personnel actions absent the appellant’s
      protected disclosures.
¶32        We reject the appellant’s implicit challenge to the administrative judge’s
      determination that the agency established by clear and convincing evidence that it
      would have taken the personnel actions at issue in the absence of her protected
      disclosures. ID at 31-41. When, as here, an appellant shows by preponderant
      evidence that she made a protected disclosure and that the disclosure was a
      contributing factor in the decision to take a personnel action against her, the
      Board will order corrective action unless the agency shows by clear and
      convincing evidence that it would have taken the personnel action in the absence
      of the whistleblowing.    See 5 U.S.C. § 1221(e)(2); Chavez v. Department of
                                                                                      14

      Veterans Affairs, 120 M.S.P.R. 285, ¶ 28 (2013).      In determining whether an
      agency has shown by clear and convincing evidence that it would have taken the
      same personnel action in the absence of whistleblowing, the Board generally 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 the 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.       See Carr v. Social
      Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). The U.S. Court
      of Appeals for the Federal Circuit has held that “[e]vidence only clearly and
      convincingly supports a conclusion when it does so in the aggregate considering
      all the pertinent evidence in the record, and despite the evidence that fairly
      detracts from that conclusion.”    Whitmore v. Department of Labor, 680 F.3d
      1353, 1368 (Fed. Cir. 2012).      The Board does not view the Carr factors as
      discrete elements, each of which the agency must prove by clear and convincing
      evidence, but will weigh the factors together to determine whether the evidence is
      clear and convincing as a whole. See Mithen, 122 M.S.P.R. 489, ¶ 36.
¶33        Regarding the first Carr factor, we agree with the administrative judge’s
      determination that the agency had strong reasons for taking the actions . ID at 41.
      In reaching this conclusion, she determined that the testimony of the officials
      supporting their reasons for issuing the suspensions to the appellant was
      straightforward, unequivocal, consistent, supported by the evidence in the reco rd,
      and, based on these witnesses’ demeanor, she found their testimony to be
      credible. ID at 41. On the other hand, the administrative judge found lacking in
      merit and belied by the record evidence the appellant’s claims that she was
      disciplined too harshly for her repeated insubordination or that she was justified
      in her refusal to follow instructions. ID at 32-40. The Board must defer to an
      administrative judge’s credibility determinations when, as here, they are based,
      explicitly or implicitly, on the observation of the demeanor of witnesses
                                                                                     15

      testifying at a hearing; the Board may overturn such determinations only when it
      has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice,
      288 F.3d 1288, 1301 (Fed. Cir. 2002). We find no sufficiently sound reasons for
      disturbing the administrative judge’s credibility determinations here.
¶34        Regarding the second Carr factor, the administrative judge recognized that
      the appellant’s disclosures implicated the proposing official of the discipline at
      issue. We agree with the administrative judge, however, that the strong evidence
      in support of the agency’s actions outweighed any possible motive to retaliate on
      the part of the agency officials who were involved in the issuance of the
      suspensions. ID at 41. As to the third Carr factor, we find that the record as a
      whole fails to demonstrate that the agency imposed lesser forms of discipline for
      similar offenses that did not involve whistleblowers. Aquino, 121 M.S.P.R. 35,
      ¶ 30. Weighing all three of the Carr factors, we agree that the agency established
      by clear and convincing evidence that it would have issued the three suspensions
      at issue even in the absence of the appellant’s protected disclosures.

      The appellant’s remaining arguments provide no other basis for disturbing the
      initial decision.
¶35        The appellant has presented a number of additional assertions that do not
      warrant a full review of the record in the absence of further explanation. For
      example, she asserts that the administrative judge “significantly curtailed” her
      cross-examination of agency witnesses. PFR File, Tab 1 at 12-13 (referencing the
      third, fourth, and fifth hearing days, generally); see Miller v. Department of
      Defense, 85 M.S.P.R. 310, ¶ 8 (2000) (explaining that an administrative judge has
      wide discretion to control the proceedings, including the authority to exclude
      testimony she believes would be irrelevant or immaterial). She also asserts in
      summary fashion that “the administrative judge did not give consideration to
      numerous protected disclosures.” PFR File, Tab 1 at 16 (referencing matters (6),
      (8), (9), (12)-(20), (23), and (25)-(28)). We disagree. Supra ¶ 4 n.3. Without
                                                                                            16

      additional argument or explanation, we cannot address these vague claims. See,
      e.g., Tines, 56 M.S.P.R. at 92.
¶36         The appellant also alleges that the background portion of the initial decision
      contains a number of factual errors. PFR File, Tab 1 at 14-15. For example, she
      alleges that the initial decision misstates the dates of management officials’
      entrance into their management roles and the organizational responsibilities of
      some agency components. Id. Even if true, the appellant has failed to show how
      these purported errors were prejudicial. See Panter, 22 M.S.P.R. at 282.
¶37         Finally, the appellant has repeatedly suggested that the administrative judge
      exhibited     bias,   arguing     that   the   initial    decision   was    “deliberately
      misrepresentative.”      PFR File, Tab 1 at 17, 19, 22; IAF, Tab 82.         We find no
      merit to these assertions. See Oliver v. Department of Transportation, 1 M.S.P.R.
      382, 386 (1980) (recognizing that a party must overcome the presumption of
      honesty and integrity that accompanies administrative adjudicators in making a
      claim of bias or prejudice against an administrative judge).
¶38         Accordingly, we affirm the initial decision denying the appellant’s request
      for corrective action.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            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),
                                                                                 17

(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 f rom 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 States 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 the link below:
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
                                                                                 18

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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
