       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
                ______________________

                 REGINA G. DAVIS,
                     Petitioner

                           v.

          DEPARTMENT OF THE ARMY,
                   Respondent
             ______________________

                      2017-1740
                ______________________

   Petition for review of the Merit Systems Protection
Board in Nos. DA-1221-12-0640-W-6, PH-315H-12-0551-I-
3.
                ______________________

              Decided: September 11, 2017
                ______________________

   REGINA G. DAVIS, San Antonio, TX, pro se.

    MELISSA BAKER, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by CHAD A.
READLER, ROBERT E. KIRSCHMAN, JR., L. MISHA PREHEIM.
                 ______________________

    Before NEWMAN, DYK, and TARANTO, Circuit Judges.
PER CURIAM.
2                                             DAVIS   v. ARMY



    In May 2011, the Department of the Army removed
Dr. Regina Davis from her position as a Clinical Psy-
chologist in the Warrior Resiliency Program at the Brooke
Army Medical Center at Fort Sam Houston. The De-
partment stated that the removal was based on her
disregard of directives. The Merit Systems Protection
Board dismissed part of Dr. Davis’s subsequent appeal of
her removal, finding a lack of Board jurisdiction because
she was not an “employee” under the pertinent statutory
provision. The Board also found a regulatory-appeal
provision inapplicable, finding that she was not removed
based on pre-appointment conduct. And the Board reject-
ed her claim that her removal was an act of reprisal for
protected whistleblowing, finding that the Department
had proven that it would have removed her even if the
asserted whistleblowing had not occurred. We affirm.
                             I
    From January 11, 2010, until September 24, 2010, Dr.
Davis worked as a Clinical Psychologist for the Brooke
Army Medical Center’s Warrior Resiliency Program at
Fort Sam Houston. During that period, she was a con-
tractor hired by Humana/Veritas Healthcare, which,
operating under a contract with the federal government,
was providing the relevant services at the Center. On
September 27, 2010, pursuant to a Standard Form 50 (SF-
50), Dr. Davis was formally appointed to a federal-
government position, a General Schedule (GS) position, as
a psychologist at the Center. The appointment was
subject to a one-year probationary period. See Davis v.
Dep’t of the Army, Nos. DA-1221-12-0640-W-6, PH-315H-
12-0551-I-3, 2017 WL 67422, ¶ 2 (M.S.P.B. Jan. 6, 2017);
Appx291. 1



    1   “Appx” refers to the materials attached to Dr. Da-
vis’s petition to this court. In responding to the petition,
DAVIS   v. ARMY                                          3



    During the months she was with Humana/Veritas, Dr.
Davis had charged that she was subjected to sexual
harassment and related retaliation. The Department
conducted an investigation under Army Regulation 15-6
(AR 15-6) between September 7, 2010, and October 19,
2010, resulting in a report rejecting the charge issued on
November 16, 2010—by which time she had entered the
federal service. SAppx368–76. When Dr. Davis thereaf-
ter made further related charges regarding a hostile work
environment and reprisal, the Department conducted a
second AR 15-6 investigation, which started on February
22, 2011, and ended with a report issued on March 9,
2011. Appx190–93. In that investigation, the Depart-
ment received criticism of Dr. Davis’s conduct toward
some colleagues.
    In April 2011, Dr. Davis was directed, on three occa-
sions, to meet with a ranking officer to discuss the second
AR 15-6 investigation and her request for a transfer. Dr.
Davis refused to meet. On May 5, 2011, well before one
year had elapsed since September 27, 2010, the Depart-
ment notified Dr. Davis that her employment was termi-
nated effective May 11, 2011.
    Dr. Davis sought relief from the Board on September
12, 2012. She complained, among other things, that her
removal was a reprisal for certain whistleblowing disclo-
sures—allegations of misconduct within the Department
that she made in October 2010, February 2011, and April
2011. After hearing evidence, the Board administrative
judge issued an Initial Decision on March 22, 2016.
Initial Decision, Davis v. Dep’t of the Army, Nos. DA-1221-




the Department assigned consecutive page numbers to
Dr. Davis’s materials, treated as a single document. We
follow that numbering. “SAppx” refers to the Depart-
ment’s own attachments, a “supplemental” appendix.
4                                             DAVIS   v. ARMY



12-0640-W-6, PH-315H-12-0551-I-3 (M.S.P.B. Mar. 22,
2016) (Initial Decision).
    The administrative judge determined that the Board
lacked jurisdiction to review the removal under 5 U.S.C.
§§ 7511–7513 because Dr. Davis was not an “employee”
under 5 U.S.C § 7511. The reason, the administrative
judge concluded, is that she was still within her proba-
tionary period and she did not have one year of continu-
ous service as defined in 5 U.S.C. § 7511(a)(1)(A). As to
the one-year issue, the administrative judge found that
Dr. Davis’s eight months of work for Humana/Veritas did
not count because that work was not qualifying federal-
government employment. Initial Decision at 3–5.
    The administrative judge next rejected Dr. Davis’s
claim of a regulatory violation. Under 5 C.F.R. § 315.805,
a probationary employee has certain procedural rights
when an agency proposes to terminate employment
“based in whole or in part on conditions arising before his
appointment.” But the termination here, the administra-
tive judge concluded, was based squarely on Dr. Davis’s
refusal to follow directives after the September 27, 2010
appointment, not on conduct occurring before that ap-
pointment. Initial Decision at 5–8.
    Finally, the administrative judge determined that Dr.
Davis was not entitled to relief based on her claim that
she was the subject of whistleblowing reprisal in violation
of 5 U.S.C. § 2302(b)(8)-(9). The administrative judge first
found that Dr. Davis had made two protected disclosures
(October 2010 and February 2011) that a reasonable
person could conclude contributed to the Department’s
alteration of her duties and termination of her employ-
ment. Initial Decision at 9–24. But the administrative
judge then found that the Department provided clear and
convincing evidence that it would have taken the same
actions against Dr. Davis without her protected disclo-
sures. Id. at 24–37.
DAVIS   v. ARMY                                            5



    The Board subsequently rejected Dr. Davis’s chal-
lenges to the Initial Decision. Davis, 2017 WL 67422 at
¶¶ 1-33. Dr. Davis timely sought review in this court. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
                             II
    Under 5 U.S.C. § 7703(c), we must affirm the Board’s
decision unless we determine that 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.” We review
the Board’s ruling on its jurisdiction de novo. Bledsoe v.
Merit Sys. Prot. Bd., 659 F.3d 1097, 1101 (Fed. Cir. 2011).
We review factual findings, including those concerning
protected disclosures, for substantial evidence. See, e.g.,
Miller v. Dep’t of Justice, 842 F.3d 1252, 1257-58 (Fed.
Cir. 2016). We review the Board’s procedural and eviden-
tiary decisions for abuse of discretion. Spezzaferro v. Fed.
Aviation Admin., 807 F.2d 169, 173 (Fed. Cir. 1986).
                             A
    We see no reversible error in the Board’s determina-
tion that it lacked jurisdiction over Dr. Davis’s appeal
under 5 U.S.C. §§ 7511–7513. That jurisdiction depended
on whether Dr. Davis was an “employee” under 5 U.S.C
§ 7511(a)(1)(A), which, as relevant here, required her to
be, at the time of removal in May 2011, “an individual in
the competitive service—(i) who is not serving a proba-
tionary or trial period under an initial appointment; or (ii)
. . . who has completed 1 year of current continuous
service under other than a temporary appointment lim-
ited to 1 year or less.” Dr. Davis was a probationary
employee in May 2011 and so did not come within (i). But
she contended that she came within (ii): she argued that
she had more than one year of the required continuous
service as of May 2011 because she was entitled to add to
the 7.5 months of GS service since September 27, 2010, to
6                                             DAVIS   v. ARMY



the 8.5 months she worked for Humana/Veritas from
January 11, 2010, to September 24, 2010. The Board
properly rejected that contention.
    There was substantial evidence to support the find-
ings that Dr. Davis was a contract worker for Hu-
mana/Veritas, and not in the federal civil service, before
September 27, 2010. The evidence includes the Septem-
ber 2010 SF-50, which lists no prior federal service; the
absence of an SF-50 covering the Humana/Veritas work;
and correspondence referring to Dr. Davis as an employee
of Humana/Veritas. The “service” that counts toward
completion of the one-year probationary period is only
“[p]rior Federal civilian service.” 5 C.F.R. § 315.802(b).
In Johnson v. Merit Sys. Prot. Bd., 495 F. App’x 68, 71
(Fed. Cir. 2012), the petitioner sought to satisfy
§ 7511(a)(1)(A) based on his work in the same capacity as
a contractor with a private entity before he was employed
by the Army. We held that such private work did not
count. The same result is required here.
                             B
    We also find no reversible error in the Board’s rejec-
tion of Dr. Davis’s contention that she was entitled to the
protections available even to probationary employees like
her when termination is for pre-appointment reasons.
Under 5 C.F.R. § 315.805, a probationary employee who is
terminated at least in part for pre-appointment reasons is
entitled to certain rights including: (1) notice of the pro-
posed action, (2) a reasonable time to file a written an-
swer to the proposed action, and (3) notice of the agency’s
decision, including notice of the right to appeal. The
Board has jurisdiction under 5 C.F.R. § 315.806(c) to hear
appeals from alleged denials of the procedural rights of 5
C.F.R. § 315.805. See LeMaster v. Dep’t of Veterans Af-
fairs, 123 M.S.P.R. 453, 457 (2016); Pope v. Dep’t of the
Navy, 62 M.S.P.R. 476, 478 (1994). In the present matter,
Dr. Davis, pointing to the May 2011 termination letter’s
DAVIS   v. ARMY                                            7



reference to the AR 15-6 investigations, argues in particu-
lar that the reference to the first AR 15-6 investigation
shows that her termination was based in part on pre-
appointment reasons because that investigation began
before her appointment on September 27, 2010. We
uphold the Board’s rejection of this argument.
     Substantial evidence supports the finding that the
termination was based only on the April 2011 refusals to
follow directives. The termination letter states the “ter-
mination is based on the following information,” and what
follows the colon is a four-item list that, after stating the
trial-period character of the employment, lists only the
three refusals to follow directives. Appx129–30. That
language contrasts with the “I also considered the follow-
ing” language that comes next, which is where the letter
mentions a February 2011 incident and follow-up meeting
(which were post-appointment) and the two AR 15-6
investigations. The difference in language supports the
Board’s finding that the latter served only as “back-
ground,” Davis, 2017 WL 67422 at ¶ 18, and were not part
of what the termination was “based on.”
     Further, what the termination letter says about the
AR 15-6 investigations is simply that they include “find-
ings” of “confrontational, aggressive, intimidating and
hostile” conduct by Dr. Davis. Appx130. The “findings”
language naturally refers to the reports of the two investi-
gations, from November 2010 and March 2011. As the
Board observed, however, the former does not make
findings about this kind of conduct by Dr. Davis, Davis,
2017 WL 67422 at ¶ 19; see SAppx368–76, and the latter
is reasonably read as not referring to this kind of conduct
from the pre-appointment period—at all, or in any mean-
8                                            DAVIS   v. ARMY



ingful way, Davis, 2017 WL 67422 at ¶ 19; see Appx190–
93. 2
    For those reasons, we conclude that the Board rea-
sonably found, on the evidence, that Dr. Davis’s termina-
tion was not based on pre-appointment reasons, even in
part. We therefore affirm the determination that 5 C.F.R.
§ 315.805 does not apply here.
                            C
     We see no reversible error in the Board’s rejection of
Dr. Davis’s whistleblowing claim, presented to the Board
under 5 U.S.C. § 1221(e). To secure relief on that claim,
which invokes the protections of 5 U.S.C. § 2302(b)(8) &
(9), Dr. Davis had to show that (1) she made a protected
disclosure and (2) the protected disclosure was a contrib-
uting factor in the agency’s decision to take a personnel
action. See 5 U.S.C. § 1221(e)(1)(A) & (B); Yunus v. Dep’t
of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001).
The Department could then defeat the claim if it could
show, by clear and convincing evidence, that it would
have taken the same action in the absence of the protect-
ed disclosures. See 5 U.S.C. § 1221(e)(2); Whitmore v.
Dep’t of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012).
Here, the Board held that the Department had made that
showing as to the two protected disclosures it found had
contributed to the removal. We affirm the Board’s ruling.
   The Board examined (1) the strength of the Depart-
ment’s evidence in support of its action, (2) the existence
and strength of any motivation to retaliate by the indi-


    2   The administrative judge also found that the de-
ciding official, when seeking drafting assistance in prepa-
ration for the termination, “mention[ed] only allegations
of misconduct that occurred after [Dr. Davis’s] appoint-
ment.” Initial Decision at 8. Dr. Davis has not shown
that finding to be unsupported by the evidence.
DAVIS   v. ARMY                                           9



viduals involved in the decision, and (3) evidence that the
Department takes similar actions against employees who
are similarly situated but not whistleblowers. Davis,
2017 WL 67422 at ¶ 27 (citing Carr v. Soc. Sec. Admin.,
185 F.3d 1318, 1323 (Fed. Cir. 1999)). First, the Board
found that the agency presented evidence, including
testimony, showing that Dr. Davis “engaged in repeated
insubordination, failing to follow orders from senior
leadership to attend meetings called to discuss the results
of the second AR 15-6 investigation.” Id. at ¶ 28. Second,
the Board found that the “administrative judge gave
serious consideration to the appellant’s overarching claim
that the agency engaged in a pattern of retaliatory con-
duct against her” and agreed with the administrative
judge’s determination that there was “only weak evidence
of any motive to retaliate against” Dr. Davis. Id. at ¶¶ 29-
30. The Board deferred to the administrative judge’s
determination that Dr. Davis’s supervisor credibly testi-
fied that he did not learn of her higher-level complaints
until after he decided to terminate her appointment and
that he would have terminated any other employee for
disobeying a direct order to meet with their senior super-
visory officials. Id. at ¶ 30. Third, the Board found that
the strength of evidence relating to the first two Carr
factors made up for any lack of evidence regarding the
third Carr factor. Id. at ¶ 32. Dr. Davis argued that two
other individuals, including her supervisor, suffered no
adverse event for failing to attend the first AR 15-6 inves-
tigation meetings. Id. The administrative judge had
distinguished the actions of those individuals because the
record did not show that those individuals had been
ordered to attend the meeting. Id. The Board agreed
with the administrative judge’s analysis. Id.
    The evidence is sufficient to support the Board’s find-
ing. We have held that “Carr does not impose an affirma-
tive burden” on the Government to produce evidence
regarding each factor, and that the factors are “appropri-
10                                           DAVIS   v. ARMY



ate and pertinent considerations” to be used in determin-
ing if the agency carries its burden of establishing by
clear and convincing evidence that it would have taken
the same action had the protected disclosures not oc-
curred. Whitmore, 680 F.3d at 1374; see Miller, 842 F.3d
at 1263 (“the Government need not introduce evidence for
each Carr factor, or prove that each weighs in its favor to
meet its burden”). In this case, even without evidence
regarding the third Carr factor, the Board could reasona-
bly find that the Department proved that it would have
taken the same action in the absence of the protected
disclosures.
                            D
    Dr. Davis also contends that the administrative judge
who presided over the prehearing conference and witness
selection denied her due process by refusing to hear from
certain proposed witnesses and denying her the ability to
question her accusers. Dr. Davis also asserts that the
administrative judge who presided over the hearing
“repeatedly accepted the testimony of Agency officials at
face value, with little to no corroborating evidence, and
disregarded evidence (i.e., documents, emails, audio
recordings and video recordings) that [she] supplied to
refute the Agency’s testimony as false.” Pet. Br. at 25.
The Board found no abuse of discretion by the administra-
tive judges involved in the proceedings relating to the
rulings on witnesses and evidence. Davis, 2017 WL 67422
at ¶¶ 22-23. In particular, the Board found that the
administrative judge who presided over the prehearing
conference and witness selection explained the reasons for
declining to hear from each witness at issue and that Dr.
Davis failed to show how the testimony of any of those
witnesses would have affected the outcome. Id. at ¶ 22.
Similarly, the Board found that Dr. Davis failed to show
how the administrative judge erred in excluding a partic-
ular exhibit. Id. at ¶ 23.
DAVIS   v. ARMY                                         11



    The Board and its administrative judges have wide
discretion regarding the admission of evidence and the
conduct of proceedings. 5 C.F.R. § 1201.41(b); Langer v.
Dep’t of Treasury, 265 F.3d 1259, 1265-66 (Fed. Cir. 2001).
Dr. Davis has not made a persuasive showing of any
abuse of discretion, much less an abuse that caused
prejudice to the outcome.
                            III
    For the foregoing reasons, we affirm the Board’s
judgment.
   No costs.
                      AFFIRMED
