                     NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit


                                    2009-3294


                           MARGARET M. CONSIDINE,

                                                   Petitioner,

                                         v.

                  NATIONAL CREDIT UNION ADMINISTRATION,

                                                   Respondent.


      Margaret M. Considine, of Bethlehem, New Hampshire, pro se.

       James R. Sweet, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Kenneth M. Dintzer, Assistant Director.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                      2009-3294

                            MARGARET M. CONSIDINE,

                                                            Petitioner,

                                          v.

                   NATIONAL CREDIT UNION ADMINISTRATION,

                                                            Respondent.

Petition for review of the Merit Systems Protection Board in PH0432090173-I-1.

                          ___________________________

                          DECIDED: February 16, 2010
                          ___________________________

Before MICHEL, Chief Judge, PROST and MOORE, Circuit Judges.

PER CURIAM.

      Margaret Considine appeals from a final decision of the Merit Systems Protection

Board (Board) affirming a decision of the National Credit Union Administration (NCUA)

to remove her from her position as a credit union examiner. See Considine v. NCUA,

No. PH0432090173-I-1 (M.S.P.B. Apr. 22, 2009) (initial decision); Considine v. NCUA,

No. PH0432090173-I-1 (M.S.P.B. July 4, 2009) (final order denying petition for review).

For the reasons discussed below, we affirm.

                                   BACKGROUND

      Ms. Considine worked for NCUA as a credit union examiner at the Region I office

in Albany, New York. On March 18, 2008, Joanne Black, Ms. Considine’s supervisory

examiner, sent Ms. Considine a Notice of Unacceptable Performance (Notice). The
Notice informed Ms. Considine that her overall performance had been found to be

unacceptable with respect to critical elements one and two of her position: specifically,

the “District Management, Supervision, and Problem Resolution” and “Job Related

Knowledge and Skills” elements. The Notice informed Ms. Considine that she was

being put on a 120-day performance improvement plan (PIP) and that action would be

initiated to either demote or remove her from the Federal Service if she failed to raise

her performance for critical elements one and two to a “Minimally Meets” level within the

120-day period.

      On September 20, 2008, the associate regional director notified Ms. Considine

that her performance had not improved under the PIP.          Therefore, the associate

regional director proposed to remove Ms. Considine from her position and from the

Federal Service due to unacceptable performance. Ms. Considine responded to the

notice of proposed removal both orally and in writing. On November 24, 2008, after

considering Ms. Considine’s arguments, the regional director issued a decision

removing her from the Federal Service, effective November 28, 2008.

      Ms. Considine appealed to the Board on December 29, 2008. In a detailed initial

decision, the administrative judge (AJ) determined that NCUA had shown by substantial

evidence that it properly removed Ms. Considine from her position for unacceptable

performance. The AJ also determined that Ms. Considine failed to prove her affirmative

defenses by a preponderance of the evidence. Therefore, the AJ affirmed NCUA’s

action removing Ms. Considine from the Federal Service.        The AJ’s initial decision

became final after the Board denied Ms. Considine’s petition for review. See Considine

v. NCUA, No. PH0432090173-I-1 (M.S.P.B. July 4, 2009).




2009-3294                                  2
                                    DISCUSSION

      Ms. Considine appeals from the Board’s final decision, and we have jurisdiction

under 28 U.S.C. § 1295(a)(9).     We must affirm the Board’s decision unless 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.” 5 U.S.C. § 7703(c). Under this

standard of review, this court will not overturn an agency decision supported by "such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Lovshin v. Dep’t of Navy, 767 F.2d 826, 844 (Fed. Cir. 1985) (en banc).

      Ms. Considine argues on appeal that NCUA improperly removed her from her

position. As the AJ observed, NCUA bore the burden of sustaining its decision to

remove Ms. Considine for unacceptable performance pursuant to the provisions of Title

5, chapter 43 of the United States Code. To satisfy this burden, NCUA was required to

prove by substantial evidence that: (1) the Office of Personnel Management [OPM]

approved its performance appraisal system; (2) Ms. Considine’s performance standards

were communicated to her; (3) she failed to meet one or more critical element of her

position; and (4) she was given a reasonable opportunity to improve her performance.

See Belcher v. Dep’t of the Air Force, 82 M.S.P.R. 230, 231-32 (1999).

      With respect to the first factor, the AJ found that OPM approved NCUA’s

performance appraisal system by letter dated December 15, 2000.          Although Ms.

Considine now argues on appeal that the OPM letter related to outdated performance

standards, she failed to raise this argument in the proceedings before the Board.




2009-3294                                  3
Therefore, we consider this argument to be waived. See White v. DOJ, 328 F.3d 1361,

1372 (Fed. Cir. 2003).

      With respect to the second factor, the AJ observed that Ms. Considine testified

that the performance standards for her position had been communicated to her and that

she understood critical elements one and two. Further, although Ms. Considine did not

argue that the standards for her position were invalid, the AJ examined the standards

and concluded that they contained sufficient detail to allow Ms. Considine to accurately

measure her performance and improve her performance rating. In view of this evidence

and the lack of any evidence to the contrary, the AJ’s conclusion that NCUA

communicated Ms. Considine’s performance standards to her is supported by

substantial evidence.

      Turning to the third factor, the AJ observed that the Notice issued by Ms. Black

provided Ms. Considine with detailed examples illustrating the ways in which she was

not performing up to the “minimally meets” level for both elements. He then reviewed

the associate regional director’s notice of proposed removal, which provided an in-depth

discussion of each credit union examination Ms. Considine had worked on and the ways

in which her performance on each was deficient. The AJ further noted that each of Ms.

Black, the associate regional director, and the regional director presented testimony

evidencing Ms. Considine’s deficient performance during the PIP. Ms. Considine, on

the other hand, testified primarily about issues unrelated to her job performance and

acknowledged that she missed numerous deadlines. Ultimately, the AJ concluded that

NCUA’s position was supported by extensive documentary evidence and witness

testimony, and that its factual account was more persuasive than Ms. Considine’s with




2009-3294                                  4
respect to the few disparities that existed.        Therefore, the AJ found that NCUA

presented substantial evidence that Ms. Considine’s performance warranted an

unacceptable rating on critical elements one and two. In view of the extensive record

evidence supporting the AJ's conclusion, we find that its determination is supported by

substantial evidence.

       Finally, with respect to the fourth factor, the AJ observed that Ms. Black gave Ms.

Considine 120 days to improve, rather than the standard 90 days. Ms. Black also

offered to provide Ms. Considine with substantial guidance, training, and feedback

during the PIP, as stated in the Notice. Ms. Considine contended that Ms. Black had

not, in fact, followed through on these offers. However, the AJ noted that the regional

director’s removal letter described various ways in which Ms. Black followed through

with her offers of assistance and that Ms. Black also provided testimony regarding her

efforts. While we agree with Ms. Considine that the AJ’s decision is based, at least in

part, on a credibility determination, “the evaluation of and weight to be given to . . . [the]

evidence in the record are judgment calls that rest primarily within the discretion of the

Board." Hall v. Dep’t of the Treasury, 264 F.3d 1050, 1060 (Fed. Cir. 2001). Therefore,

substantial evidence supports the AJ’s determination that NCUA proved by substantial

evidence that Ms. Considine had a reasonable opportunity to improve and that NCUA

met its burden of sustaining the removal of Ms. Considine for unacceptable

performance.

       Ms. Considine also argues that the AJ improperly denied her affirmative

defenses of retaliatory action. Ms. Considine alleges that NCUA removed her from her

position in retaliation for: 1) grievances that she filed against her supervisors; 2) a 1999




2009-3294                                     5
appeal she made to the Board; and 3) various whistleblower activities.       As the AJ

correctly noted, Ms. Considine had the burden of proving her affirmative defenses by a

preponderance of the evidence. 5 C.F.R. § 1201.56(a)(2)(iii).

       Ms. Considine first contends that NCUA removed her from her position in

retaliation for numerous grievances she filed against her supervisors, which date from

1998 through the first half of 2008. The AJ determined that because NCUA had already

established a non-retaliatory reason for removing Ms. Considine—namely, her

unacceptable performance—the relevant inquiry was whether Ms. Considine had

established, by a preponderance of the evidence, that her performance was a “mere

pretext” for the removal. See Haddon v. Exec. Residence, 313 F.3d 1352, 1359 (Fed.

Cir. 2002). The AJ found it “highly unlikely” that NCUA would have taken any retaliatory

action towards Ms. Considine based on her grievances filed prior to 2005, due to their

remoteness in time from the present removal action, their failure to mention any

individuals involved in the present removal action, and Ms. Considine’s failure to offer

any evidence to the contrary.      The grievances filed from 2005 to 2008 involved

allegations against Ms. Black. However, the AJ found that Ms. Considine failed to show

that any similarly-situated NCUA employee had received better treatment with respect

to performance issues and that there was no evidence from which he might infer

retaliatory intent.   The AJ’s analysis of the record on this point is sound, and his

determination is supported by substantial evidence.

       Next, Ms. Considine contends that her removal was part of a “pattern of reprisal”

by NCUA in retaliation for a prior appeal she made to the Board. Ms. Considine’s prior

appeal involved a May 1999 decision to remove her from her position for unacceptable




2009-3294                                  6
performance.     The administrative judge reversed the decision, finding that NCUA’s

performance standards were invalid. The AJ in the present action noted that although

the regional director had participated in Ms. Considine’s prior appeal, Ms. Black and the

associate regional director had not been involved. Further, the AJ found that timing

considerations weighed against retaliatory action, that her allegations about actions

evidencing a “pattern” were conclusory and related to people not involved in the present

removal action, and that she had not presented evidence of any similarly-situated

employees that were better treated regarding performance issues. We cannot say that

the record evidence cited by the AJ is not "such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.”          Lovshin, 767 F.2d at 844.

Therefore, the AJ’s determination is supported by substantial evidence.

        Lastly, Ms. Considine argues that she was removed in reprisal for whistleblowing

activities.   As the AJ correctly recognized, to prove a claim for whistleblowing an

employee must show by a preponderance of the evidence that she made a protected

disclosure and that the disclosure was a contributing factor in the personnel action

being appealed. Horton v. Dep’t of the Navy, 66 F.3d 279, 282-83 (Fed. Cir. 1995). A

protected disclosure includes any disclosure of information that an employee

reasonably believes evidences “gross mismanagement, a gross waste of funds, an

abuse of authority, or a substantial and specific danger to public health or safety.” 5

U.S.C. § 2302(b)(8).    The employee bears the burden of showing that a protected

disclosure has been made. Horton, 66 F.3d at 282.

        Ms. Considine relies on three sets of allegedly protected disclosures to support

her whistleblower defense: 1) the various disclosures that formed the basis for her 1999




2009-3294                                   7
Board appeal; 2) complaints she made to the regional director regarding Ms. Black’s

conduct during Ms. Considine’s examination of two credit unions; and 3) complaints she

made to NCUA’s central office regarding a mandatory meeting in Lowell, Massachusetts

that Ms. Black scheduled during a snowstorm. The AJ found that Ms. Considine failed

to establish that any disclosures made prior to 2000 were “contributing factors” to her

removal. With respect to Ms. Considine’s complaints about Ms. Black, the AJ found that

the complaints could be considered a disclosure of “abuse of authority” if Ms. Considine

reasonably believed that the disclosure indicated wrongdoing by Ms. Black. However,

the AJ credited testimony from the NCUA about the actual course of events that

occurred during the examinations, and therefore concluded that Ms. Considine could

not have reasonably believed that Ms. Black engaged in wrongdoing. Finally, the AJ

determined that Ms. Considine could not have reasonably believed that the Lowell

meeting evidenced a “specific danger to public health or safety” because, among other

reasons, Ms. Black authorized Ms. Considine to stay overnight at a hotel in Lowell to

ensure her well-being. The AJ’s determinations as to Ms. Considine's whistleblower

claims are based on ample record evidence and permissible credibility determinations

and, therefore, are supported by substantial evidence.

      For the foregoing reasons, we affirm the final decision of the Board.

                                        COSTS

      No costs.




2009-3294                                  8
