                  NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                    is not citable as precedent. It is a public record.


 United States Court of Appeals for the Federal Circuit


                                        2006-3194

                                    ROGELIO GOMEZ,

                                                  Petitioner,

                                             v.

                               DEPARTMENT OF LABOR,

                                                  Respondent.

                            ___________________________

                            DECIDED: August 14, 2006
                            ___________________________


Before NEWMAN, RADER, and BRYSON, Circuit Judges.

PER CURIAM.

                                        DECISION

       Rogelio Gomez petitions for review of a decision of the Merit Systems Protection

Board, Docket No. DA-1221-05-0215-W-1, in which the Board denied his request for

corrective action in his individual right of action (“IRA”) appeal. We affirm.

                                      BACKGROUND

       Mr. Gomez was a probationary employee with the Occupational Safety and

Health Administration in the Department of Labor. He was removed from his position in

2002 during his probationary period for insubordination and failure to exercise good
judgment while conducting agency business. Mr. Gomez sought to appeal to the Merit

Systems Protection Board from the removal action, alleging that he was terminated

because he was a Methodist and because he was Hispanic.                  That appeal was

dismissed based on Mr. Gomez’s status as a probationary employee. Mr. Gomez also

filed a discrimination claim with the Department of Labor, alleging discrimination on the

same two grounds. After the agency found no discrimination, Mr. Gomez appealed that

determination to the Equal Employment Opportunity Commission, which rejected his

appeal.

       Following the agency’s decision on his discrimination claim, Mr. Gomez filed a

complaint with the Office of Special Counsel, asserting for the first time that his

termination was in retaliation for whistleblowing activity.    After the Office of Special

Counsel notified Mr. Gomez that it was terminating its inquiry into his complaint, he filed

the present IRA appeal with the Merit Systems Protection Board.

       The administrative judge who was assigned to the case ruled that Mr. Gomez

had raised non-frivolous allegations of fact sufficient to warrant a hearing. In particular,

the administrative judge ruled that Mr. Gomez had made sufficient allegations that he

had made a protected disclosure and that his termination was in reprisal for that

disclosure.   Accordingly, the administrative judge conducted a hearing to determine

whether the agency’s termination action was in fact in retaliation for protected

whistleblowing.

       The evidence at the hearing showed that Mr. Gomez’s supervisor had instructed

him not to participate as a translator in a particular interview being conducted by a co-

worker because of concerns about placing Mr. Gomez in a situation in which he could




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potentially be accused of sexual harassment. Mr. Gomez, however, participated in the

interview anyway, in disregard of the instructions he was given. An investigation of the

incident revealed not only that Mr. Gomez had acted contrary to his supervisor’s

instructions, but also that on two other occasions, Mr. Gomez had engaged in

misconduct by making sexually suggestive remarks to a female co-worker and to a

female employee of a company that the agency was investigating. The agency decided

to terminate him based on those incidents. In response, Mr. Gomez contended that

during the investigation of his conduct he had complained about the behavior of the co-

worker who conducted the interview, claiming that she had acted improperly toward the

witness in the course of the interview. It was that complaint that he alleged was the

protected disclosure that resulted in his termination.

       After the hearing, the administrative judge concluded that, even assuming Mr.

Gomez made a protected disclosure, the evidence “fails to support a conclusion that

this disclosure was a contributing factor in the agency’s decision to terminate his

employment during the probationary period.”        Beyond that, the administrative judge

ruled, “the credible evidence overwhelmingly supports a conclusion that, under the

circumstances shown, the agency would have terminated this probationary employee,

even in the absence of this disclosure.”

                                      DISCUSSION

       In order to establish a prima facie case of retaliation for whistleblowing activity,

the appellant must show by a preponderance of the evidence that he made a protected

disclosure that was a contributing factor in the action being appealed. See 5 U.S.C.

§§ 1221(e)(1), 2302(b)(8); Frey v. Dep’t of Labor, 359 F.3d 1355, 1359 (Fed. Cir. 2004);




2006-3194                                    3
Briley v. Nat’l Archives & Records Admin., 236 F.3d 1373, 1378 (Fed. Cir. 2001). Even

if the appellant makes such a showing, no corrective action is required if “the agency

demonstrates 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)(2);

Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1322 (Fed. Cir. 1999); Ellison v. Merit Sys.

Prot. Bd., 7 F.3d 1031, 1034 (Fed. Cir. 1993).

       In this case, the administrative judge, after conducting a hearing, found that Mr.

Gomez had failed to show that his alleged protected disclosure contributed to his

termination.    That finding, which was supported by a detailed factual recitation and

credibility determinations by the administrative judge, is plainly supported by substantial

evidence.      In addition, the administrative judge made the further finding that the

evidence clearly and convincingly showed that the agency would have taken the same

action against Mr. Gomez even in the absence of his asserted protected disclosure.

That finding, like the first, is supported by substantial evidence.

       Although Mr. Gomez argues at length about the facts of the case, contending

that the administrative judge should not have found the facts against him, the standard

of review on an appeal from factual findings of the Board is a difficult one for an

appellant to overcome, especially when the Board’s findings are based on credibility

determinations. See King v. Dep’t of Health & Human Servs., 133 F.3d 1450, 1453

(Fed. Cir. 1998) (“an evaluation of witness credibility is within the discretion of the Board

and . . . such evaluations are ‘virtually unreviewable’”); Hayes v. Dep’t of the Navy, 727

F.2d 1535, 1537 (Fed. Cir. 1984) (Board’s factual findings must be upheld if “it has a

rational basis supported by substantial evidence from the record taken as a whole. The




2006-3194                                     4
record need only disclose such relevant evidence as might be accepted by a

reasonable mind as adequate to support the conclusion reached.”). We hold that Mr.

Gomez has failed to satisfy that exacting standard in this case, and we therefore sustain

the ruling of the Board rejecting his IRA appeal.




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