                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     GEORGE DUGGAN,                                  DOCKET NUMBER
                 Appellant,                          SF-1221-14-0544-W-2

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: September 13, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           John Ota, Esquire, Alameda, California, for the appellant.

           Mark Hostetter, San Jose, California, for the appellant.

           David Gallagher, Fort Belvoir, Virginia, 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

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. Except as
     expressly MODIFIED by this Final Order to supplement the contributing factor
     analysis, we AFFIRM the initial decision.

                                      BACKGROUND
¶2         The appellant, a Senior Auditor with the Defense Contract Audit Agency
     (DCAA), filed a timely IRA appeal challenging several personnel actions that he
     alleged were taken because he made seven alleged protected disclosures.
     Duggan v. Department of Defense, MSPB Docket No. SF-1221-14-0544-W-1,
     Appeal File (W‑1 AF), Tab 1.         The appellant exhausted the whistleblower
     complaint procedures with the Office of Special Counsel.           W‑1 AF, Tab 3,
     Subtab 4c.   After discovery and a hearing, the administrative judge issued an
     initial decision denying the appellant’s request for corrective action. Duggan v.
     Department of Defense, MSPB Docket No. SF-1221-14-0544-W-2, Appeal File
     (W‑2 AF), Tab 21, Initial Decision (ID).
¶3         The appellant has filed a petition for review, arguing that the administrative
     judge mischaracterized the nature of his disclosures, abused his discretion in
     denying his motion to compel discovery and not approving certain witnesses for
     the hearing, and erred in applying the law to the facts of the case. Petition for
     Review (PFR) File, Tab 3.      The agency has opposed the petition for review.
                                                                                         3

     PFR File, Tab 5. The appellant filed a reply to the agency’s opposition. PFR
     File, Tab 6.

                       DISCUSSION OF ARGUMENTS ON REVIEW
     The administrative judge did not abuse his discretion by denying the appellant’s
     motion to compel discovery and request for additional witnesses at the hearing.
¶4         The appellant argues that the administrative judge abused his discretion
     in denying, in part, his motion to compel discovery.          PFR File, Tab 3 at 28.
     Specifically, the appellant alleges that his document requests sought evidence to
     establish     disparate   treatment.   Id.    The    Board     will not   reverse   an
     administrative judge’s discovery rulings absent an abuse of discretion. Wagner v.
     Environmental Protection Agency, 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d
     1236 (Fed. Cir. 1993). After reviewing the disputed discovery requests, we find
     that the administrative judge did not abuse his discretion.
¶5         The appellant argues that the administrative judge should have granted his
     motion to compel regarding document requests 1‑26, which he characterizes as
     seeking documents that referenced him to and from “superiors” and other agency
     officials who are likely to have been involved in the adverse personnel actions
     that are at issue in this case. PFR File, Tab 3 at 28; W‑2 AF, Tab 14 at 8. The
     administrative judge granted the appellant’s motion to compel responses to
     document requests 1‑4 and 7‑8, which concerned documents to and from the
     management officials responsible for the alleged retaliatory personnel actions.
     W‑1 AF, Tab 14 at 29‑35, Tab 25 at 2.
¶6         The administrative judge did not abuse his discretion by denying the motion
     to compel responses to document requests 11‑12, which requested documents to
     and from a manager who works in the agency’s Internal Review Directorate
     (IRD).      In his disclosure on the Government Executive website, the appellant
     accused IRD of covering management malfeasance and of being used to keep
     employee complaints out of the hands of the Inspector General. W‑1 AF, Tab 22,
                                                                                      4

     Subtab A‑09.    He provided extensive testimony at the hearing concerning his
     belief that IRD treated complaints filed by supervisors differently than complaints
     filed by nonsupervisory employees and failed to recommend discipline when
     supervisors committed misconduct.     Hearing Transcript (HT), Volume (Vol.) 1
     at 133‑52. The record also contains extensive documentation concerning the IRD
     investigations that the appellant alleges are relevant to his appeal.    W‑1 AF,
     Tab 22, Subtabs H‑29 – H‑37. We find that the appellant’s argument that IRD
     investigations did not result in discipline against supervisory employees is not
     relevant to the issues in this appeal, and the administrative judge did not abuse
     his discretion in denying the appellant’s request for documents from an
     IRD manager.
¶7        The administrative judge did not abuse his discretion by denying the motion
     to compel responses to document requests 21‑24, which requested documents to
     and from two attorneys who represented the agency in litigation involving the
     appellant.    W‑1 AF, Tab 14 at 35.    The agency objected to these document
     requests based on attorney-client privilege.        Id.    We agree that these
     communications are protected by the attorney-client privilege. An appellant can
     be denied discovery of relevant information that is protected by the
     attorney‑client privilege.   Grimes v. Department of the Navy, 99 M.S.P.R. 7,
     ¶ 8 (2005).
¶8        The administrative judge did not abuse his discretion in denying the
     appellant’s motion to compel responses to document requests 9‑10, 17‑20, and
     25‑26, which requested documents about the appellant to and from the head of
     the agency, the Regional Director, the appellant’s fourth-level supervisor, and the
     deciding official’s supervisor. W‑1 AF, Tab 14 at 31, 33‑34. In considering the
     existence and strength of any motive to retaliate on the part of agency officials
     who were involved in the decisions, the Board must consider evidence of other
                                                                                     5

     officials not directly involved but who may have influenced the decision by a
     retaliatory motive. Whitmore v. Department of Labor, 680 F.3d 1353, 1370 (Fed.
     Cir. 2012). However, there is no indication that any of these managers influenced
     the decision on the proposed suspension or the performance appraisal at issue in
     this appeal. The agency assigned a deciding official for the proposed suspension
     who was not in the appellant’s chain of command and had not been the subject of
     any of his disclosures and complaints.     HT, Vol. 9 at 185‑93.   The appellant
     requested and received every document referencing his disclosure to the
     Government Executive website. W‑1 AF, Tab 5, Subtabs K‑08 – K‑12, K‑24 –
     K‑41. The appellant requested and received emails to and from the managers
     who participated in the personnel actions at issue.      W‑1 AF, Tab 25.      The
     appellant has failed to show how the additional documents he requested would
     have affected the administrative judge’s findings. See Jones v. Department of
     Health & Human Services, 119 M.S.P.R. 355, ¶ 18 (stating that the Board will not
     find reversible error in an administrative judge’s discovery rulings absent an
     abuse of discretion that prejudiced the appellant’s substantive rights), aff’d,
     544 F. App’x 976 (Fed. Cir. 2013).
¶9        The administrative judge did not abuse his discretion by denying the
     appellant’s motion to compel responses to document requests 13‑16, which
     requested documents about the appellant to and from the two human resources
     specialists who advised management concerning the personnel action at issue in
     this appeal. W‑1 AF, Tab 14 at 32. The human resources specialists were not the
     subject of any of the appellant’s disclosures, and the record contains no evidence
     that they were otherwise motivated to influence the responsible management
     officials to retaliate against the appellant.   Because the administrative judge
     granted the appellant’s motion to compel discovery of all the documents
     concerning the appellant to and from the responsible management officials during
     the relevant time period, any documents to or from the human resources
                                                                                           6

      specialists to the responsible management officials already were subject
      to discovery.
¶10         The appellant also argues that the administrative judge abused his discretion
      by denying his motion to compel discovery for interrogatories 9-16 and document
      requests 28‑37, which he characterizes as seeking evidence concerning the
      treatment of comparators.      PFR File, Tab 3 at 28‑29.          Document request 28
      sought all documents related to every disciplinary action taken against employees
      in the DCAA Western Region for a 7‑year period.             Id.    Records concerning
      whether the agency took action in response to similar misconduct by other
      employees who were not whistleblowers could be relevant in determining whether
      the agency met its burden to show by clear and convincing evidence it would
      have taken the same personnel actions against the appellant absent his
      disclosures. McGrath v. Department of the Army, 83 M.S.P.R. 48, ¶ 11 (1999).
      In response to interrogatory 10, the agency provided the appellant with documents
      concerning disciplinary actions taken against DCAA Western Region employees
      for comments similar to those made by the appellant. W‑1 AF, Tab 16 at 5‑6.
      The record contains written decisions in adverse actions taken against five
      employees disciplined, at least in part, for making inappropriate statements.
      W‑1 AF, Tab 20.       The administrative judge did not abuse his discretion by
      denying the appellant’s motion to compel discovery seeking this same
      information via additional document requests and interrogatories.
¶11         The appellant’s interrogatories 11‑17 and document requests 34‑35 sought
      evidence concerning the disposition of investigations by the Department of
      Defense Inspector General and the DCAA’s IRD. W‑1 AF, Tab 14 at 25‑28, 38.
      The appellant argues that his discovery requests concerning cases investigated by
      IRD relate to possible similar cases of discipline. PFR File, Tab 6 at 14. The
      disposition of these investigations is irrelevant to this case; therefore, we find that
      the administrative judge did not abuse his discretion in denying the appellant’s
                                                                                          7

      motion to compel responses to these document requests. 2 Document request 37
      concerns fiscal year 2013 performance awards. Id. at 38. The agency responded
      to the request by stating that there were no responsive documents because it
      did not provide performance awards for fiscal year 2013. Id. This response is
      responsive to the appellant’s request.
¶12        The appellant also argues that the administrative judge abused his discretion
      by denying him certain witnesses at the hearing. PFR File, Tab 3 at 29. The
      appellant requested 17 witnesses.     W‑2 AF, Tab 7.      The administrative judge
      allowed 11 of those witnesses to testify. 3      W‑2 AF, Tab 10.       The appellant
      objected to being denied the testimony of five witnesses. W‑2 AF, Tab 11. On
      petition for review, the appellant argues that the administrative judge abused his
      discretion in denying his request for four witnesses. 4 PFR File, Tab 3 at 29.
¶13        An administrative judge has wide discretion to control the proceedings,
      including holding prehearing conferences for the simplification of issues and
      ruling on exhibits and witnesses. 5 C.F.R. § 1201.41(b). Here, the administrative
      judge properly assessed that the testimony of the denied witnesses would have
      been irrelevant or duplicative of the approved witnesses’ testimony.              See
      Benton v. Department of Labor, 25 M.S.P.R. 430, 436 (1984) (stating that an
      administrative judge has wide discretion to exclude witnesses the appellant
      has not shown would offer relevant, material, and nonrepetitious evidence).

      2
        The appellant was allowed to provide extensive testimony at the hearing concerning
      these IRD investigations. HT, Vol. 1 at 133‑52. The record also contains documents
      concerning the specific investigation that is the subject of document request 35.
      W‑1 AF, Tab 22, Subtabs H‑29 - H‑37. Therefore, the appellant has not shown that he
      was prejudiced by the administrative judge denying his motion to compel discovery in
      response to this document request.
      3
       Four of the appellant’s 11 witnesses were also on the agency’s witness list. W‑1 AF,
      Tab 20 at 1‑2.
      4
        The appellant has abandoned his claim that the administrative judge erred by denying
      his request to have the head of the agency testify at the hearing. PFR File, Tab 3
      at 29‑30.
                                                                                      8

¶14        The appellant argues that two of the denied witnesses would have testified
      about the lack of discipline for disrespectful employees who were not
      whistleblowers, and the other two witnesses would have “themselves been
      evidence of disparate treatment.”     Id. at 29‑30.   The record is completely
      developed regarding the issue of disparate treatment.    HT, Vol. 4 at 190‑201,
      226‑36 (testimony establishing that there were no comparable cases of
      misconduct because the appellant was the only employee charged with a third
      offense of disrespectful conduct). The parties also stipulated to the fact that no
      employee was disciplined for calling the appellant “unprofessional.” Id. at 237.
      The record, moreover, contains testimony that several managers were not
      disciplined based on complaints about their “bad behavior.”           HT, Vol. 9
      at 120‑21.   The appellant has not established that the testimony of these
      additional witnesses would not have been unduly repetitious.

      The administrative judge appropriately determined that three of the appellant’s
      disclosures were not protected whistleblowing.
¶15        In reviewing the merits of an IRA appeal based on an allegation of
      whistleblower reprisal, the Board must examine whether the appellant proved by
      preponderant evidence that he made protected disclosures under 5 U.S.C.
      § 2302(b)(8), and that his whistleblowing disclosure was a contributing factor in
      an agency personnel action; if so, the Board must order corrective action unless
      the agency established by clear and convincing evidence that it would have taken
      the same personnel action in the absence of the disclosures.            Chavez v.
      Department of Veterans Affairs, 120 M.S.P.R. 285, ¶ 17 (2013). An individual
      making a disclosure may be protected from retaliation for whistleblowing based
      on his reasonable belief that his disclosure evidenced one or more of the
      categories of wrongdoing listed in 5 U.S.C. § 2302(b)(8), even when his belief is
      mistaken. Drake v. Agency for International Development, 543 F.3d 1377, 1382
      (Fed. Cir. 2008). The test for determining if an employee’s belief regarding the
                                                                                         9

      disclosed matter is reasonable is whether a disinterested observer with knowledge
      of the essential facts known and readily ascertainable by the employee could
      reasonably conclude that the actions of the agency evidence the wrongdoing
      disclosed. Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999).
¶16         The appellant alleges that the initial decision mischaracterized his
      disclosures by stating that they all concern DCAA’s access‑to‑records policy.
      PFR File, Tab 3 at 13.         The initial decision states that the appellant’s seven
      alleged protected disclosures, during the time that he was part of a team
      examining the financial records of the Environmental Chemical Corporation
      (ECC), all relate to his belief that management was not following the agency’s
      access-to-records policy. ID at 4. The alleged disclosures were identified in the
      initial decision as follows:
            1. At a January 22, 2013, morning meeting the appellant told the
            new Branch Manager that DCAA management was not following its
            access to records policy at the ECC audits;
            2. At an afternoon meeting that same day, he told the Branch
            Manager that her supervisor was not following the denial to access to
            records policy and the Generally Acceptable Government Audit
            Standards (GAGAS);
            3. On February 8, 2013, he told the Branch Manager that it was
            inappropriate for her to attempt to manipulate the written record of
            the January 22, 2013, team meeting to make it appear that he had
            acted inappropriately;
            4. On February 14, 2013, he told the Branch Manager that she had
            wrongly interpreted the GAGAS government audit standards
            requirement of candor in audit communications and disrespectfully
            called him and others “unprofessional,” when in fact his statements
            and actions were consistent with professional standards;
            5. In a May 8, 2013, article on the Government Executive website,
            the appellant discussed shortcomings of DCAA agency leadership
            under the Director who took over in 2008;
            6. In a May 15, 2013, comment on the Government Executive
            website, the appellant rebutted the agency Director's response to the
            May 8, 2013, article on the same website;
                                                                                       10

            7. In an August 29, 2013, e-mail to the Branch Manager and agency
            management the appellant said that the Branch Manager's direct
            order to censor him in a meeting was mismanagement and abuse of
            authority which jeopardized proper oversight of billions of dollars of
            government subcontracts.
      ID at 5‑6. The appellant argues that only two of the disclosures concern the
      access‑to‑records policy. PFR File, Tab 3 at 13-16. Even if the administrative
      judge’s summary of the disclosures was inaccurate, we disagree with the
      appellant’s argument that this reflects a misunderstanding of the nature of the
      disclosures. The initial decision accurately identifies each of the seven alleged
      disclosures. Compare ID at 5‑6, with W‑1 AF, Tab 21 at 5.
¶17        The appellant also argues that the administrative judge erred by finding
      disclosures three, four, and seven, which the appellant claims concern
      “management abuse,” were not protected disclosures. PFR File, Tab 3 at 14; ID
      at 5‑6. For purposes of the Whistleblower Protection Act, an abuse of authority
      occurs when there is an arbitrary or capricious exercise of power by a Federal
      official or employee that adversely affects the rights of any person or results in
      personal gain or advantage to himself or to other persons. Linder v. Department
      of Justice, 122 M.S.P.R. 14, ¶ 15 (2014). The administrative judge appropriately
      found that disclosures three, four, and seven are not protected disclosures of gross
      mismanagement or an abuse of authority as defined by 5 U.S.C. § 2302(b)(8).
¶18        Disclosure three alleges that the Branch Manager attempted to manipulate
      team meeting minutes.     W‑2 AF, Tab 5 at 2; ID at 5.      The minutes from the
      meeting were circulated so that the attendees could provide comments. W‑1 AF,
      Tab 22, Subtab A‑03.     The Branch Manager, who was one of the attendees,
      commented on items she felt had been left out of the minutes. W‑1 AF, Tab 3,
      Subtab 4t at 6.   Her comments were not integrated into the minutes, but she
      requested that they be attached. HT, Vol. 4 at 64‑65. Even without the Branch
      Manager’s input, the minutes are consistent with management’s description of the
                                                                                           11

      appellant’s conduct in the notice of proposed suspension.           Compare W‑1 AF,
      Tab 22, Subtab A‑02b, with W‑1 AF, Tab 1 at 6‑7.              The Branch Manager
      testified repeatedly that it was inappropriate to document the appellant’s
      misconduct during the meeting in the minutes. HT, Vol. 4 at 64‑65. The dispute
      over what should and should not be included in the team meeting minutes is a
      philosophical disagreement, and a reasonable person with knowledge of the facts
      readily available to the appellant could not conclude that the Branch Manager’s
      attempt to provide input into the minutes was an arbitrary or capricious exercise
      of power or gross mismanagement.            Webb v. Department of the Interior,
      122 M.S.P.R. 248, ¶ 8 (2015) (stating that even under the expanded protections
      afforded to whistleblowers under the Whistleblower Protection Enhancement Act,
      general philosophical disagreements are not protected unless they separately
      constitute a protected disclosure of one of the categories of wrongdoing listed in
      5 U.S.C. § 2302(b)(8)(A)).
¶19        The appellant also argues that the administrative judge erred by finding that
      disclosure four—that the Branch Manager had wrongly interpreted the GAGAS
      Government audit standards requirement of candor in audit communications and
      disrespectfully called him and others “unprofessional”—was not a protected
      whistleblowing     disclosure.      ID   at 5‑6.    The    statutory    protection   for
      whistleblowers is not a weapon in arguments over policy or a shield for
      insubordinate conduct.       Webb, 122 M.S.P.R. 248, ¶ 8 (citing O’Donnell v.
      Department    of     Agriculture,    120 M.S.P.R.    94,     ¶ 14      (2013)),   aff’d,
      561 F. App’x 926 (Fed. Cir. 2014)). We agree with the administrative judge’s
      conclusion that the appellant’s conduct was insubordinate.                ID at 16‑18.
      Moreover, “gross mismanagement” requires that the claimed error in the agency’s
      adoption of or adherence to a policy be a matter that is not debatable among
      reasonable people. White v. Department of the Air Force, 391 F.3d 1377, 1383
      (Fed. Cir. 2004). The appellant’s interpretation of the candor requirement in the
                                                                                       12

      GAGAS is debatable as reflected by the testimony of his fellow DCAA auditors
      who believe that an auditor can fulfill the candor requirement while maintaining a
      respectful demeanor and tone. HT, Vol. 9 at 81‑83, 109‑10, 268‑69. We agree
      with the administrative judge’s finding that this disclosure is not a protected
      disclosure pursuant to 5 U.S.C. § 2302(b)(8). White, 391 F.3d at 1382.
¶20        Similarly, in disclosure seven, the appellant alleges that he disclosed gross
      mismanagement and an abuse of authority by telling the Branch Manager not to
      censor him during a meeting.      W‑1 AF, Tab 22, Subtab A‑17.       The appellant
      asked questions during a meeting that his supervisors deemed “inappropriate” for
      the context of the meeting, and he was asked not to ask similar questions during a
      subsequent discussion.   Id.   A reasonable person with knowledge of the facts
      available to the appellant could not conclude that his supervisors acted arbitrarily
      or capriciously by asking him to “share and use [his insight] in an appropriate
      manner.”   Id.   We agree with the administrative judge’s conclusion that this
      was not a protected disclosure. Lachance, 174 F.3d at 1381 (stating that a purely
      subjective perspective of an employee is not sufficient for establishing a
      reasonable belief of a protected disclosure under 5 U.S.C. § 2302(b)(8)).

      The appellant proved that his protected disclosures were a contributing factor in
      the personnel actions at issue.
¶21        The administrative judge found that the four remaining disclosures were
      protected disclosures.   ID at 6, 20.    Because the administrative judge held a
      hearing, he implicitly found that the appellant made a nonfrivolous allegation that
      his protected disclosures were a contributing factor in the agency’s decisions to
      take personnel actions against him.         Mastrullo v. Department of Labor,
      123 M.S.P.R. 110, ¶ 15 (2015). To prove that a disclosure was a contributing
      factor in a personnel action, the appellant only need demonstrate that the fact of,
      or the content of, the protected disclosure was one of the factors that tended to
      affect the personnel action in any way. Carey v. Department of Veterans Affairs,
      93 M.S.P.R. 676, ¶ 10 (2003).           We find that, because the appellant’s
                                                                                     13

      whistleblower disclosures were cited explicitly in support of the suspension, and
      his performance appraisal also was affected by the tone of his disclosures, he has
      met his burden of proving contributing factor as to those actions. W‑1 AF, Tab 1
      at 6‑11, Tab 3, Subtab 4p at 4; Parikh v. Department of Veterans Affairs,
      116 M.S.P.R. 197, ¶ 35 (2011) (finding that when specifications in a proposed
      adverse action are grounded in the protected disclosures themselves, the
      disclosures were a contributing factor in the agency’s adverse action decision).
      Additionally, the appellant has met his burden of proving contributing factor for
      the revocation of his telework agreement because that personnel action was the
      result of the lowered performance appraisal. W‑1 AF, Tab 3, Subtab 4o.
¶22        We modify the initial decision to find that the appellant also has met his
      burden of proving contributing factor regarding his disclosures to the Government
      Executive website concerning his performance rating and the revocation of
      his telework   agreement   by   satisfying   the   knowledge/timing   test.   The
      knowledge/timing test allows an employee to demonstrate that the disclosure was
      a contributing factor in a personnel action through circumstantial evidence, such
      as evidence that the official taking the personnel action knew of the disclosure,
      and that the personnel action occurred within a period of time such that a
      reasonable person could conclude that the disclosure was a contributing factor in
      the personnel action. Mastrullo, 123 M.S.P.R. 110, ¶ 18.
¶23        According to the appellant, he first made contact with the Government
      Executive website around March 27, 2013, and his disclosures were first
      published on May 8, 2013. W‑1 AF, Tab 2, Subtabs A‑09 – A‑10; HT, Vol. 7
      at 70‑78.   We agree with the administrative judge’s finding that there is no
      evidence that the official responsible for the appellant’s suspension knew about
      his disclosures to the Government Executive website prior to the date that they
      were published. ID at 20. The appellant’s performance rating was signed on
      July 31, 2013, and his telework agreement was revoked on September 3, 2013,
                                                                                       14

      after the managers responsible for those actions became aware of these
      disclosures. W‑1 AF, Tab 3, Subtabs 4o‑4p, Tab 22, Subtab H‑16. Given the
      proximity in time between the appellant’s disclosures to the Government
      Executive website, his performance evaluation, and the revocation of his telework
      agreement, we find that he has demonstrated that those disclosures were a
      contributing factor in those personnel actions by satisfying the knowledge/timing
      test.   See Mastrullo, 123 M.S.P.R. 110, ¶ 21 (holding that a personnel action
      taken within approximately 1‑2 years of the appellant’s disclosures satisfies the
      knowledge/timing test).   Once an appellant has satisfied the knowledge/timing
      test, an administrative judge must find that the appellant has shown that his
      whistleblowing was a contributing factor in the personnel action at issue even if,
      after a complete analysis of all the evidence, a reasonable factfinder could not
      conclude that the appellant’s whistleblowing was a contributing factor in the
      personnel action.     Schnell v. Department of the Army, 114 M.S.P.R. 83,
      ¶ 21 (2010).

      The administrative judge appropriately found that the agency established by clear
      and convincing evidence that it would have taken the same personnel actions
      absent the appellant’s protected disclosures.
¶24           In determining whether the agency has shown by clear and convincing
      evidence that it would have taken the same personnel action in the absence of the
      whistleblowing, the Board considers the strength of the agency’s evidence in
      support of its personnel action, the 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 appellant argues that the
      administrative judge erred in applying the Carr factors and the agency has not
      established by clear and convincing evidence that it would have taken the same
      personnel actions in the absence of the whistleblowing disclosures.
                                                                                       15

¶25        Specifically, he alleges that the proposed suspension contains false
      information. PFR File, Tab 3 at 3, 18‑20. However, none of the alleged false
      statements identified by the appellant directly relate to his charged misconduct,
      i.e., communicating with his supervisors in an insubordinate and disrespectful
      manner. Id. at 18‑20. The facts the appellant disputes concern the surrounding
      circumstances of the ECC audits. Id. Even if the appellant is correct about the
      errors, those errors are not relevant to whether the agency would have suspended
      him absent his whistleblowing disclosures.
¶26        As to the first Carr factor, we agree with the administrative judge’s finding
      that the strength of the agency’s evidence in support of the suspension action is
      ample in light of the appellant’s prior discipline for similar misconduct. ID at 19.
      The appellant admits that he interrupted his supervisor repeatedly during a
      meeting and told her that she was incorrect in front of other colleagues. HT,
      Vol. 7 at 169‑72. He also testified that he knew what he was doing displeased
      her, yet he continued to interrupt and dominate the meeting anyway.              Id.
      at 179‑80.    We also agree with the administrative judge’s finding that the
      appellant acknowledged at the hearing that he said virtually everything ascribed
      to him in the proposal notice. ID at 15; HT, Vol. 7 at 169‑81. As found by the
      administrative judge, the tone of the appellant’s email was aggressive,
      derogatory, unprofessional, disruptive, and rude. ID at 18. It is well settled that
      the statutory protections for whistleblowers are not a shield for insubordinate
      conduct.     Lachance, 174 F.3d at 1381.      The narrative for the appellant’s
      performance appraisal was based in part on these same instances of inappropriate
      conduct toward his supervisors. HT, Vol. 9 at 123. Thus, the strong evidence
      supporting the suspension also supports the performance appraisal, which resulted
      in revocation of the appellant’s telework agreement.
¶27        Prior to the hearing, the agency rescinded the appellant’s suspension, raised
      his performance evaluation, and reinstated his right to telework. ID at 2 n.1. The
                                                                                      16

      appellant has cited to Rumsey v. Department of Justice, 120 M.S.P.R. 259, ¶ 33
      (2013), for the proposition that rescinding a disciplinary action after an employee
      files a grievance could be considered an admission of a retaliatory motive. We
      do not agree with the appellant’s interpretation of the holding in this case. The
      agency in Rumsey did not rescind a personnel action. The appellant in Rumsey
      was the prevailing party in a grievance concerning a personnel action, and the
      agency cancelled that action as a result of the adverse finding. Id. The Board
      found that the agency in Rumsey did not have strong evidence supporting the
      personnel action based, in part, on the finding of a third party.       There is no
      similar finding in this appeal. Based on our review of the record, we agree with
      the administrative judge’s finding that the agency presented strong evidence in
      support of the personnel actions at issue in this appeal. ID at 7‑24.
¶28        The second Carr factor is the strength of any motive to retaliate on the part
      of the agency officials who were involved in the personnel actions.           Carr,
      185 F.3d at 1323. The Board cannot decide whether the agency has carried its
      burden by clear and convincing evidence by looking only at the evidence that
      supports the conclusion reached. Whitmore, 680 F.3d at 1367-68. In determining
      whether an agency has proven by clear and convincing evidence that it would
      have taken an alleged retaliatory action absent an appellant’s whistleblowing, the
      administrative judge should consider any motive to retaliate on the part of the
      agency official who ordered the action, as well as any motive to retaliate on the
      part of other agency officials who influenced the action. Herman v. Department
      of Justice, 119 M.S.P.R. 642, ¶ 16 (2013). Given the appellant’s long history as a
      whistleblower, which is well documented in the record, the agency officials
      responsible for the personnel actions at issue could have had a motive to retaliate
      against him.
¶29        The third Carr factor is any evidence that the agency takes similar actions
      against employees who are not whistleblowers, but who are otherwise similarly
      situated. Carr, 185 F.3d at 1323. The human resources specialist who advised
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      the deciding official testified that there were no comparable employees, i.e., other
      employees disciplined repeatedly for disrespectful conduct.            HT, Vol. 4
      at 193‑94.    There was considerable testimony at the hearing concerning
      disciplinary actions taken against other employees for disrespectful conduct, and
      the reasons those actions were distinguishable from the appellant’s.              Id.
      at 195‑226.    The agency also presented undisputed testimony that other
      employees who received minimally successful performance evaluations had their
      telework agreements revoked.      Id. at 179‑80, 204.   Considering the appellant
      continued to repeat the same misconduct despite previous suspensions, we agree
      with the administrative judge’s analysis and finding that the strength of the
      agency’s evidence in support of both the suspension and performance appraisal
      outweighs the motive to retaliate. ID at 7‑25.
¶30        The appellant also argues that the initial decision contains an erroneous
      finding of fact by concluding that the Branch Manager did not call him
      “unprofessional” in response to his first protected disclosure. PFR File, Tab 3
      at 25. We do not agree. The initial decision summarizes the testimony of two
      witnesses who testified that they did not hear the Branch Manager call the
      appellant “unprofessional,” but makes no findings regarding this fact. ID at 8.
¶31        In sum, we discern no error in the administrative judge’s conclusion that the
      agency proved by clear and convincing evidence that it would have taken the
      personnel actions at issue in the absence of the appellant’s protected
      whistleblowing disclosures.

                         NOTICE TO THE APPELLANT REGARDING
                            YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by this Final Order, constitutes the
      Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request review of this final decision by the U.S. Court of Appeals for the
      Federal Circuit.
                                                                                 18

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