                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     TROY W. MILLER,                                 DOCKET NUMBER
                   Appellant,                        DA-1221-11-0401-W-3

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: April 8, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Dennis L. Friedman, Esquire, Philadelphia, Pennsylvania, for the appellant.

           John T. LeMaster, Esquire, Washington, D.C., 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 his request for corrective action in his 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
     on an erroneous interpretation of statute or regulation or the erroneous application

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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).
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     of the law to the facts of the case; the 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, and based on the
     following points and authorities, 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 formerly held the position of Superintendent of Industries,
     GS-13, with the agency’s Federal Bureau of Prisons. Hearing Transcript (HT) at
     6-8.    The appellant’s primary duty as Superintendent of Industries was to
     supervise the running of a UNICOR factory that produced helmets for the
     military. HT at 8-11. UNICOR is the trade name for Federal Prison Industries, a
     government-owned corporation that employs inmates incarcerated in correctional
     facilities under the Federal Bureau of Prisons. HT at 227. The appellant filed an
     appeal with the Board alleging that he was reassigned out of his position into a
     series of temporary assignments, and then finally to the position of Management
     Analyst, GS-13, in retaliation for whistleblowing activity, specifically, a verbal
     disclosure on October 7, 2009, and verbal and written disclosures on December
     16, 2009, of gross mismanagement and the gross waste of funds in the factory’s
     operations. Initial Appeal File (IAF), Tab 10 at 1.
¶3          After holding a hearing, the administrative judge issued an initial decision
     finding that the appellant had established by a preponderance of the evidence that
     he had made protected disclosures under 5 U.S.C. § 2302(b)(8) that were a
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     contributing factor in the decision to reassign him, but the agency had established
     by clear and convincing evidence that it would have reassigned the appellant in
     the absence of his disclosures. IAF, Tab 12, Initial Decision (ID) at 9, 18.
¶4        The appellant has filed a petition for review of the initial decision arguing
     that the administrative judge incorrectly found that the agency met its burden of
     proving by clear and convincing evidence that it would have reassigned him in
     the absence of his disclosures.      Petition for Review (PFR) File, Tab 6.    The
     agency has filed a response in opposition to the appellant’s petition. PFR File,
     Tab 7.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5        When reviewing the merits of an IRA appeal, if the appellant is able to
     prove by a preponderance of the evidence that he made a protected disclosure
     under 5 U.S.C. § 2302(b)(8) that was a contributing factor in an agency’s
     personnel action, then the Board must order corrective action unless the agency
     can establish by clear and convincing evidence that it would have taken the same
     personnel action in the absence of the disclosure.       Chavez v. Department of
     Veterans Affairs, 120 M.S.P.R. 285, ¶ 17 (2013). 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. Id. The administrative
     judge, having determined that the appellant proved by a preponderance of the
     evidence that his two disclosures were a contributing factor in the decision to
     reassign him, analyzed whether the agency had established by clear and
     convincing evidence that it would have reassigned the appellant in the absence of
     the disclosures. ID at 6-9, 11-18.
¶6        One of the appellant’s supervisors testified that the appellant was initially
     reassigned because the Office of the Inspector General (OIG) requested that he be
     removed from the operational aspects of the UNICOR factory during an
     investigation. HT at 321-22. OIG raised concerns that the appellant’s presence
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     might compromise the integrity of the investigation. HT at 361. The supervisor
     also testified that OIG subsequently requested that he be removed from a set of
     temporary duties because of accusations that the appellant was hampering the
     investigation by having conversations with inmates who had worked at the
     factory. HT at 325-26, 353. The supervisor further testified that the appellant
     was removed from another set of temporary duties at OIG’s request after
     accusations that the appellant was monitoring the phone calls of inmates who had
     worked in the factory specifically to gain information about the investigation. HT
     at 326-29.    The supervisor testified to the increasing difficulty in identifying
     duties that the appellant could perform during the investigation. HT at 291-94.
     The factory closure at the appellant’s facility was announced around September
     2011.     HT at 339.    On June 14, 2012, the appellant received a directed
     reassignment to the position of Management Analyst, GS-13.          IAF, Tab 6 at
     11-17.
¶7           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 the
     protected disclosure, the Board generally considers the strength of the agency’s
     evidence in support of its action, the existence and strength of any motive to
     retaliate on the part of the agency officials who were involved in the decision,
     and any evidence that the agency takes similar actions against employees who are
     not whistleblowers but who are otherwise similarly situated.        Carr v. Social
     Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). 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. McCarthy v.
     International Boundary & Water Commission, 116 M.S.P.R. 594, ¶ 44 (2011),
     aff’d, 497 F. App’x 4 (Fed. Cir. 2012), cert. denied, 134 S. Ct. 386 (2013).
¶8           In applying the Carr factors, the administrative judge considered the
     evidence and testimony presented by both the agency and the appellant. ID at
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     6-9, 11-18. The administrative judge found that the appellant’s supervisor had
     little motive to retaliate because he had no vested interest in the subject of the
     disclosures, i.e., alleged mismanagement and the waste of funds at UNICOR.
     E.g., ID at 7, 13, 18.       The administrative judge also found that considerable
     unrebutted evidence supported the agency’s stated reason for reassigning the
     appellant in the manner that it did. E.g., ID at 8-9, 14, 17-18. The administrative
     judge found that there were no similarly situated-employees, and, therefore, no
     basis    for   evaluating    whether    the   agency   took   similar     actions   against
     non-whistleblowers under comparable circumstances. ID at 9, 18.
¶9           The appellant argues on review that his supervisor’s testimony concerning
     his reassignment was based “in its entirety” on hearsay and without corroborating
     evidence and thus lacks the persuasiveness necessary to meet the clear and
     convincing evidence standard.          PFR File, Tab 6 at 12-14.         The supervisor’s
     testimony about what he was told by OIG is not hearsay.                 See Fed. R. Evid.
     801(c) (defining “hearsay” as a statement, other than one made by the declarant
     while testifying at the trial or hearing, offered into evidence to prove the truth of
     the matter asserted).       His testimony is direct evidence, i.e., his own personal
     knowledge gained by hearing directly from OIG. 2 See, e.g., HT at 321. As noted
     in the initial decision, the record contains evidence that corroborates the
     supervisor testimony. The appellant sent an email on December 16, 2009, stating
     that he had been removed from the factory on December 15, 2009, due to the OIG
     investigation. ID at 9. The appellant testified that his supervisor called him and
     told him he was being removed because OIG was coming to do an investigation
     with his staff.    Id.   The nature and scope of the investigation, including the
     involvement of the U.S. Attorney’s Office, also corroborates the supervisor’s
     testimony. ID at 17-18; HT at 104-10.

     2
      In any event, hearsay evidence is admissible in Board proceedings, but the assessment
     of the probative value of hearsay evidence necessarily depends on the circumstances of
     each case. Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83-87 (1981).
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¶10        Next, the appellant argues that the administrative judge erred in failing to
      properly consider certain factors in assessing whether the supervisor’s testimony
      was credible.    PFR File, Tab 6 at 13-15.       Specifically, he argues that the
      supervisor’s testimony, that OIG directed his reassignment because OIG has no
      administrative authority over Federal Bureau of Prisons employees, is inherently
      improbable.     Id. at 14-15.   The appellant also argues that his supervisor’s
      testimony was inherently improbable because the agency never produced
      documentary evidence of OIG’s request, the appellant was never given written
      notice regarding the reasons for the reassignment, and many of his temporary
      duties were not commensurate with the grade level of his position. Id. We find
      these arguments unpersuasive.      The appellant’s supervisor testified that OIG
      requested that the appellant be reassigned, the request was discussed amongst the
      appellant’s supervisor, his regional director, and UNICOR’s central office, and
      the agency decided to reassign the appellant. HT at 321-24. The appellant’s
      supervisors further explained that it was difficult to find duties for the appellant
      that were commensurate with his grade level during the protracted OIG
      investigation because OIG asked that he not have access to the inmates who had
      worked in the factory, and he could no longer access the UNICOR computer. See
      HT at 292, 330-32. We find that it is not inherently improbable that OIG would
      ask that the appellant be reassigned during its investigation, or that the agency
      would comply with this request, given the apparent scope of the investigation and
      the possibility of criminal charges against the appellant.     See HT at 104-10,
      287-91, 297, 321-22.
¶11        The appellant argues, moreover, that his supervisor had a strong retaliatory
      motive because his disclosures were an impediment to the supervisor’s interest in
      maximizing inmate employment in the “highly profitable” helmet production
      business. PFR File, Tab 6 at 15. The record, however, does not support such a
      conclusion. We agree with the administrative judge’s finding that the supervisor
      had little to no motive to retaliate because he possessed little knowledge as to the
                                                                                       7

      products manufactured in the factory, exercised no responsibility or influence
      over the business decisions at the factory, and was not principally interested in
      whether the factory was profitable or not, as long as it continued to provide
      training and employment for inmates.          ID at 7.   We also agree with the
      administrative judge’s finding that the supervisor had little motive to retaliate
      based on the appellant’s disclosures because, when the appellant made his
      disclosures, OIG’s investigation into the factory’s operations was already
      underway. ID at 13.
¶12        In sum, we find that the appellant’s assertions on review reflect mere
      disagreements with the administrative judge’s well-reasoned and thoroughly
      explained findings. After considering the arguments raised by the appellant in his
      petition for review, we find no basis to disturb the administrative judge’s finding
      that the agency established by clear and convincing evidence that it would have
      reassigned the appellant in the absence of his disclosures. See Crosby v. U.S.
      Postal Service, 74 M.S.P.R. 98, 106 (1997).

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the United
      States 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
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may request review of this final decision by the United States 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 United States 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 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 United States 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
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
        If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit.       The Merit Systems Protection Board
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neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
