                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JANE WEBSTER,                                   DOCKET NUMBER
                         Appellant,                  DE-1221-16-0091-W-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: September 8, 2016
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Jane Webster, Salt Lake City, Utah, pro se.

           Letha Miller, Esquire, Denver, Colorado, 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; 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 and
     AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
     § 1201.113(b).

                                      BACKGROUND
¶2         The appellant served as a Staff Nurse at the agency’s Salt Lake City
     Medical Center. Initial Appeal File (IAF), Tab 8 at 16. On May 20, 2015, the
     agency notified her that she would be detailed temporarily to a Health
     Administrative Services position during an investigation into concerns regarding
     her performance and conduct.      IAF, Tab 6 at 57.     A Summary Review Board
     (SRB) was convened to investigate the concerns raised about the appellant’s
     performance and conduct on various occasions between December 2014 and
     April 2015. IAF, Tab 8 at 35-56. Following its investigation, on August 4, 2015,
     the SRB recommended that the appellant be terminated during her probationary
     period because, among other things, evidence supported concerns about her
     “attitude, competency, and behavior” and established that she had “difficulty
     performing her duties independently as well as working with others in a team
     environment,” “demonstrated an unwillingness to learn or adapt to the needs of”
     the Gastrointestinal-Lab/Endoscopy Unit, and lacked “personal insight and
     accountability into her own performance and conduct deficiencies.” Id. at 27.
                                                                                      3

     Effective August 29, 2015, the agency terminated the appellant during her
     probationary period. Id. at 16.
¶3         The appellant filed a Board appeal alleging that the agency’s actions in
     detailing her and terminating her during her probationary period were taken in
     retaliation for her May 15, 2015 disclosure concerning defective cabinet
     installation.   IAF, Tab 1 at 8.   The appellant’s disclosure was related to an
     incident on May 14, 2015, in which a 700-pound cabinet located in another
     workspace fell on and injured a lab technician, and it was discovered that some
     cabinets had been improperly secured to the walls. IAF, Tab 7 at 47, Tab 8 at 14,
     Tab 17, Hearing Compact Disc (HCD) (testimony of the appellant).               The
     following day, the appellant disclosed that she was concerned that she and other
     employees were still assigned to work in rooms that had the same type of cabinets
     as the one that had fallen and injured the lab technician. HCD (testimony of the
     appellant).
¶4         After finding Board jurisdiction over the appeal, IAF, Tab 10, and
     following a hearing, the administrative judge issued an initial decision denying
     the appellant’s request for corrective action, IAF, Tab 18, Initial Decision (ID).
     The administrative judge found that, although the appellant had established a
     prima facie case of whistleblower reprisal, the agency met its burden of
     establishing by clear and convincing evidence that it would have detailed her and
     terminated her employment absent her disclosure. ID at 6-16.
¶5         The appellant has filed a petition for review arguing that the administrative
     judge erred in denying her request for corrective action.     Petition for Review
     (PFR) File, Tab 1 at 2.      The agency has opposed the appellant’s petition.
     PFR File, Tab 3.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶6         When, as here, an appellant exhausts her administrative remedy with the
     Office of Special Counsel and establishes the Board’s jurisdiction in an IRA
                                                                                           4

     appeal, she then 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);
     Lu v. Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). If the
     appellant makes this prima facie showing, the burden shifts to the agency to prove
     by clear and convincing evidence that it would have taken the same personnel
     action in the absence of the protected disclosure. Lu, 122 M.S.P.R. 335, ¶ 7.
     Clear and convincing evidence is that measure or degree of proof that produces in
     the mind of the trier of fact a firm 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(e).
¶7         In determining whether an agency has met this burden, the Board will
     consider the following factors:      (1) the strength of the agency’s evidence in
     support of the 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. Lu, 122 M.S.P.R. 335,
     ¶ 7 (citing 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. Id.
¶8         On review, the appellant disputes the agency’s decisions to detail her and
     terminate her employment and argues that the evidence supporting the agency’s
     decisions was insufficient. 2 PFR File, Tab 1 at 2. In an IRA appeal, however, the



     2
      Neither party challenges the administrative judge’s findings that the appellant made a
     protected disclosure under 5 U.S.C. § 2302(b)(8), which was a contributing factor in her
                                                                                             5

      Board lacks the authority to adjudicate the merits of the underlying personnel
      action; rather, our jurisdiction is limited to adjudicating the whistleblower
      allegations. See Lu, 122 M.S.P.R. 335, ¶ 7. The relevant inquiry is not whether
      the appellant committed any actual misconduct, but whether the agency had
      strong evidence to support its personnel action.           Phillips v. Department of
      Transportation, 113 M.S.P.R. 73, ¶ 15 (2010). Thus, the administrative judge
      properly considered the strength of the agency’s justification for taking the
      challenged actions as part of the clear and convincing analysis.
¶9          Upon review of the record below, we agree with the administrative judge
      that the agency established by clear and convincing evidence that it would have
      detailed and terminated the appellant absent her disclosure. ID at 16. In reaching
      this conclusion, the administrative judge carefully balanced the Carr factors, and
      on review the appellant has presented no basis for us to disagree with his
      findings. 3
¶10         We agree with the administrative judge that the agency had sufficiently
      strong reasons for taking the personnel actions. ID at 12-13. The record reflects
      that, prior to the appellant’s May 15, 2015 disclosure, numerous employees had
      raised concerns regarding her performance and patient care abilities. IAF, Tab 8
      at 57-65, 82-88.       The administrative judge credited the agency officials’
      testimony concerning emails showing that, prior to the appellant’s disclosure,
      they already had begun addressing such concerns, conducting a fact-finding
      inquiry to initiate the SRB review process and discussing detailing the appellant



      detail and termination, and we find no reason to disturb the administrative judge’s
      findings on these issues. ID at 6-11.
      3
        Because the agency did not present any evidence regarding the third Carr factor, the
      administrative judge properly considered it to be neutral. ID at 12; see Whitmore v.
      Department of Labor, 680 F.3d 1353, 1374 (Fed. Cir. 2012) (noting that the agency is
      not required to submit evidence concerning each Carr factor, and recognizing that the
      absence of evidence relating to the third Carr factor “can effectively remove that factor
      from the analysis”).
                                                                                        6

      to work in an administrative capacity. ID at 11-13; IAF, Tab 13 at 11-18. The
      administrative judge also properly considered evidence weighing against the
      agency’s case, but nevertheless found that the agency had proven by clear and
      convincing evidence that it would have detailed and terminated the appellant in
      the absence of her protected disclosure. ID at 13-15; see Shibuya v. Department
      of Agriculture, 119 M.S.P.R. 537, ¶ 37 (2013) (stating that a proper analysis of
      the clear and convincing issue requires all of the evidence to be considered).
¶11        Regarding the second Carr factor, the administrative judge found that the
      individuals who ultimately made the decisions to detail the appellant and
      terminate her employment were not aware of her disclosure. ID at 15‑16. He
      further found that, although the appellant’s first-level supervisor was aware of her
      disclosure and had encouraged the agency to detail the appellant, he had a weak
      motive to retaliate because he had begun the process of addressing the appellant’s
      performance issues prior to her disclosure.       ID at 15-16.     In light of our
      consideration of the Carr factors, we agree with the administrative judge that the
      agency met its burden.
¶12        We find unavailing the appellant’s argument on review that she was not
      aware that the SRB findings would be at issue in this appeal and that, per the
      jurisdictional order, she believed the appeal to be focused on “the actions of 5/14,
      5/15, and 5/20/15.” PFR File, Tab 1 at 2. Although administrative judges are
      obligated to provide more guidance to pro se appellants and interpret their
      arguments in the most favorable light, see Miles v. Department of Veterans
      Affairs, 84 M.S.P.R. 418, ¶ 10 (1999), the affirmative responsibility to present
      relevant evidence is fundamentally that of the parties, Richardson v. Department
      of Justice, 11 M.S.P.R. 186, 195 (1982).        Here, the appellant was advised
      regarding the relevant issues and burdens of proof and had the opportunity to
      present evidence at the hearing.     We discern no abuse of discretion by the
      administrative judge.
                                                                                          7

¶13         Accordingly, we affirm the administrative judge’s denial of 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),
      (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.
            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
                                                                                  8

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
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.
