                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TONIE M. GREVE,                                 DOCKET NUMBER
                   Appellant,                        DE-1221-15-0329-W-1

                  v.

     DEPARTMENT OF HEALTH AND                        DATE: February 10, 2016
       HUMAN SERVICES,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Joy Miller, Esquire, Lincoln, Nebraska, for the appellant.

           Dawn M. Wilkie, Minot, North Dakota, 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 her 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


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. 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, 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 find that disclosure (4) was protected, and to reassess the
     evidence in support of the March 4, 2014 letter of reprimand, we AFFIRM the
     initial decision.

                         DISCUSSION OF ARGUMENTS ON REVIEW
¶2         In reviewing the merits of an IRA appeal in which the appellant alleges
     retaliation for protected disclosures, the Board first considers whether the
     appellant has established by a preponderance of the evidence that she made
     protected disclosures under 5 U.S.C. § 2302(b)(8) that were a contributing factor
     in an agency’s personnel action. Aquino v. Department of Homeland Security,
     121 M.S.P.R. 35, ¶ 10 (2014). If the appellant meets that burden of proof, 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 disclosures. Id.; see 5 U.S.C. § 1221(e). The appellant argues that
     the administrative judge made errors at both stages of the analysis. 2




     2
      Neither party disputed the administrative judge’s finding that the appellant exhausted
     her administrative remedies with the Office of Special Counsel before appealing to the
     Board. Initial Appeal File (IAF), Tab 39, Initial Decision (ID) at 2.
                                                                                       3

¶3         As to disclosure (1), i.e., the one made at the January 8, 2014 staff meeting,
     the appellant contends that the administrative judge underestimated the
     seriousness of her allegation that her supervisor was entering admissions orders
     outside the scope of her nursing license. Petition for Review (PFR) File, Tab 4
     at 2-3.   We disagree with the appellant’s reading of the initial decision.     The
     administrative judge did not minimize the alleged misconduct by the supervisor,
     but rather stated that, “to the extent the appellant is arguing she reasonably
     believed that [the supervisor] wrote admission orders and that this evidenced
     wrongdoing,” he would have found that the alleged disclosure was protected.
     Initial Appeal File (IAF), Tab 39, Initial Decision (ID) at 7. However, he went on
     to find that the evidence did not show that the appellant made such a disclosure at
     the January 8, 2014 meeting. ID at 8; see Hearing Transcript (HT) (testimony of
     the supervisor and S.R.). He instead concluded that, as a result of the appellant’s
     statements at the meeting—which the supervisor recalled as including a threat to
     report her to the state board of nursing “again”—the supervisor believed the
     appellant had previously reported her to the nursing board on a different matter,
     specifically, forgetting to chart an immunization.     ID at 8-9; see IAF, Tab 11
     at 28, Tab 19 at 7, Tab 32 at 25; HT (testimony of the supervisor). We discern no
     error in that finding. The administrative judge further found, in the appellant’s
     favor, that the perceived disclosure was protected and a contributing factor in
     both personnel actions at issue. ID at 9.
¶4         The appellant also contests the administrative judge’s finding that
     disclosure (2), concerning an alleged abuse of authority by the supervisor,
     was not protected. PFR File, Tab 4 at 4-5. In her pleadings below, the appellant
     alleged that in a January 16, 2014 email to Acting Director of Nursing B.P., she
     stated that the supervisor was “placing her hands next [to her] head and snapping
     fingers stating ‘get busy[.]’” IAF, Tab 10 at 2, Tab 17 at 2. As the appellant
     notes on petition for review, and as the administrative judge acknowledged
     below, the record contains testimony and written statements from other
                                                                                      4

     employees confirming that the supervisor had aggressively snapped her fingers at
     the appellant and other staff nurses and that she did so next to the appellant’s
     head on at least one occasion.      IAF, Tab 31 at 33 (statement by V.S.); HT
     (testimony of V.S. and R.S.); see ID at 9-10. However, the administrative judge
     found no evidence that the appellant reported the finger-snapping incident in her
     January 16, 2014 email to B.P., or to anyone else. ID at 10; see IAF, Tab 31
     at 18. On review, the appellant argues that it was “wholly reasonable” that the
     finger-snapping incident was not included in the January 16, 2014 email. PFR
     File, Tab 4 at 5.   Be that as it may, the record contains no evidence that the
     appellant made the alleged disclosure elsewhere.
¶5        Disclosure (3) concerns the appellant’s February 10, 2014 report to B.P.
     that a Health Information Management Specialist (Information Specialist) asked
     the appellant to “alter/tamper” or “make a change to a Federal Medical Record.”
     IAF, Tab 21. On review, the appellant appears to argue that the administrative
     judge erroneously relied on the Information Specialist’s testimony that “some
     alterations to records are appropriate if done properly.” PFR File, Tab 4 at 6; HT
     (testimony of Information Specialist). However, while the administrative judge
     noted such testimony, he did not make a finding as to whether the Information
     Specialist in fact asked the appellant to do anything inappropriate to the record.
     ID at 11.   It was unnecessary to decide the question because the issue to be
     decided was whether the appellant reasonably believed that she was reporting
     wrongdoing as described under 5 U.S.C. § 2302(b)(8), not whether she was
     correct in that belief.     See Chavez v. Department of Veterans Affairs,
     120 M.S.P.R. 285, ¶ 18 (2013). The appellant prevailed on that issue, and the
     administrative judge further found that disclosure (3) was a contributing factor in
     both personnel actions. ID at 10-11.
¶6        The appellant also contends that the administrative judge erred in his
     analysis of disclosure (4), i.e., the appellant’s March 12, 2014 disclosure to the
     Inspector General (IG) that the supervisor gave a gift card for two movie tickets
                                                                                         5

     to another employee for performing her normal duties. PFR File, Tab 4 at 6-7.
     To the extent the administrative judge relied on evidence that the gift card could
     have been purchased at a discount for as little as $10, see ID at 12, we agree with
     the appellant that the actual purchase price was not relevant to the question of
     whether the disclosure was protected.       It is true that noncash gifts with an
     “aggregate market value” of $10 or less are exempt from the ethics regulations
     restricting gifts between employees. See 5 C.F.R. § 2635.304(a)(1). However,
     for purposes of those same regulations, the “market value of a gift of a ticket
     entitling the holder to food, refreshments, entertainment, or any other benefit
     shall be the face value of the ticket.”     5 C.F.R. §§ 2635.203(c), 2635.303(c).
     Regardless of its purchase price, it is likely that the face value of a gift card for
     two movie tickets would exceed the $10 threshold, and thus would be covered by
     the pertinent ethics regulations, which the appellant cited in her IG complaint.
     IAF, Tab 31, Exhibit C.      While we do not make a finding concerning the
     permissibility of the gifts, we find that the appellant had at least a reasonable
     belief that she disclosed information evidencing a violation of law, rule, or
     regulation. We therefore conclude that disclosure (4) is protected.
¶7         Nonetheless, we agree with the administrative judge that the appellant
     failed to show that disclosure (4) was a contributing factor in either personnel
     action at issue (a March 4, 2014 letter of reprimand and a 5-day suspension
     beginning on May 2, 2014). ID at 5-9, 10-14; IAF, Tab 11 at 19-20, 28-29. 3 As
     the administrative judge noted, the record contains no evidence that either the
     supervisor, who issued the letter of reprimand and proposed the suspension, or the
     deciding official, ever learned about the appellant’s disclosure concerning the gift
     card. ID at 12. On review, the appellant argues that “[i]t is not reasonable to

     3
       At a status conference, the administrative judge identified these two matters as the
     personnel actions at issue. IAF, Tab 10. We find that both a letter of reprimand and a
     suspension are properly considered “personnel actions” under whistleblower statutes.
     See 5 U.S.C. § 2302(a)(2); Paul v. Department of Agriculture, 66 M.S.P.R. 643,
     648-50 (1995).
                                                                                            6

     conclude that [the supervisor was not] made aware of [my] report to the IG.”
     PFR File, Tab 4 at 7. We do not find it inherently unlikely that the supervisor
     was unaware of the appellant’s disclosure to the IG, however, and the appellant’s
     mere speculation to the contrary is insufficient to satisfy the knowledge/timing
     test. 4 We also agree with the administrative judge that the record provides no
     other basis for concluding that disclosure (4) was a contributing factor in either
     personnel action. 5
¶8         The appellant also objects that the administrative judge failed to consider
     disclosures other than disclosures (1) through (5).        PFR File, Tab 4 at 8. 6    In
     particular, she refers to “the March 14, 2014 reportings which [the supervisor]
     was explicitly made aware of.” Id. While the appellant does not describe that
     disclosure on review, she stated below that on March 14, 2014, the following took
     place: “I sent an e-mail in regards to patient safety and EMTAL 7 violations and
     filed a webincident (internal program).         I sent the e-mail up the chain of
     command to” the Chief Executive Officer. IAF, Tab 17. However, the appellant

     4
       One way for an appellant to establish the contributing factor criterion is the
     knowledge/timing test, under which she may demonstrate that a disclosure was a
     contributing factor in a personnel action through direct or circumstantial evidence, such
     as evidence that the official who took 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.
     5 U.S.C. § 1221(e)(1); see Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 17
     (2014) (finding that an interval of approximately 4 months was sufficient to satisfy the
     timing prong of the knowledge/timing test). A disclosure that occurs after the
     personnel action at issue was taken cannot be considered a contributing factor in that
     personnel action.
     5
       To the extent the appellant’s IG complaint may be protected under 5 U.S.C.
     § 2302(b)(9)(C), we find for the same reasons that her protected activity was not a
     contributing factor in either personnel action at issue.
     6
       The administrative judge found that disclosure (5), i.e., the appellant’s report
     concerning the death of a patient on April 17, 2014, was protected and a contributing
     factor in both personnel actions. ID at 12-13.
     7
      The appellant was likely referring to the Emergency Medical Treatment and Active
     Labor Act.
                                                                                       7

     did not make a timely objection to the administrative judge’s May 26, 2015 order,
     which listed only disclosures (1) through (5) as bases for the Board’s jurisdiction.
     IAF, Tab 21 at 1 n.2, 2-3.     Nor did she address the alleged March 14, 2014
     disclosure in her prehearing submission. IAF, Tabs 30-31. Moreover, even if the
     appellant had not waived any objection to the omission of the alleged March 14,
     2014 disclosure, the mere reference to unspecified “patient safety and EMTAL
     violations” would be insufficient to establish by preponderant evidence that the
     disclosure was protected.
¶9         Proceeding to the next stage of the analysis, the issue to be decided is
     whether the agency proved by clear and convincing evidence that it would have
     taken the contested personnel actions in the absence of the appellant’s
     whistleblowing.    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.        5 C.F.R. § 1209.4(e).   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 whistleblowing, the Board
     will consider the following factors: (1) the strength of the agency’s evidence in
     support of its action; (2) the existence and strength of any motive to retaliate on
     the part of the agency officials who were involved in the decision; and (3) 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). “Evidence only clearly
     and convincingly supports a conclusion when it does so in the aggregate
     considering all the pertinent evidence in the record, and despite the evidence that
     fairly detracts from that conclusion.”        Whitmore v. Department of Labor,
     680 F.3d 1353, 1368 (Fed. Cir. 2012). Because neither party introduced evidence
     pertaining   to   any   similarly situated    individual   who   did not engage   in
     whistleblowing, factor (3) is neutral, and we may confine our attention to
     factors (1) and (2).
                                                                                       8

¶10        The first contested action is the March 4, 2014 letter of reprimand for
      “Conduct Unbecoming a Federal Employee.”            In the letter, the supervisor
      described the appellant’s alleged misconduct as follows:
            On January 8, 2014, a meeting was held with the Outpatient
            Department nurses to discuss the task of floating to other nursing
            units. You interrupted the meeting by stating, “No, I won’t go,” over
            and over in a loud voice. I stated that you would go and offered
            assistance during your turn to float. You then stated loudly, “You
            cannot threaten me . . . , I won’t go and I’m calling the Nebraska
            State Board of [N]ursing on you!” You again stated loudly, “I’m
            calling the state board on you again!” You disrupted the meeting by
            interrupting the discussion of work assignments with your loud
            remarks. The behavior exhibited was inappropriate, unprofessional,
            and detracted from your character. Therefore, you have displayed
            conduct that is unbecoming of a Federal Employee.
      IAF, Tab 11 at 28.
¶11        Regarding factor (1), the strength of the evidence in support of the agency’s
      action, the appellant correctly observes that the supervisor’s account of the
      January 8, 2014 meeting is inconsistent with the testimony of other nurses who
      were present. PFR File, Tab 4 at 3-4. At the hearing, the supervisor testified that
      the appellant repeatedly shouted that she would not float to another unit, to the
      point that nurses felt uncomfortable and started to get out of their chairs. HT
      (testimony of the supervisor). By contrast, S.R. testified that she: (1) did not
      think the appellant had shouted, although she often expressed herself loudly;
      (2) did not recall the appellant “repeatedly” telling the supervisor that she
      would not float, and (3) did not recall the nurses getting out of their chairs. HT
      (testimony of S.R.) Another nurse, V.S., also testified that she did not recall the
      appellant shouting. HT (testimony of V.S.). Likewise, R.S. testified that she
      would not describe the appellant as yelling, although she did raise her voice. HT
      (testimony of R.S.). In addition, the appellant provided a written statement by
      another nurse, J.U., who stated that she did not feel the appellant was “out of
      line” in expressing her concerns about the floating issue. IAF, Tab 30, Exhibit A.
                                                                                            9

      While it is undisputed that the appellant refused to float to another unit, the
      record does not show clearly that she did so repeatedly, that she shouted, or that
      she disrupted the meeting to the point that nurses started to get out of
      their chairs. 8
¶12         We further note that, for purposes of assessing the strength of the evidence
      in support of the agency’s action, it is immaterial whether the supervisor’s
      directive was lawful. Contra ID at 16, 17. Neither the charge nor the underlying
      specification indicates that the appellant was disciplined for insubordination or
      refusal to follow instructions. IAF, Tab 11 at 28. Hence, regardless of whether
      the order was legal, the appellant’s refusal to comply, standing alone, would not
      lend support to the agency’s action.       Cf. Gottlieb v. Veterans Administration,
      39 M.S.P.R. 606, 609 (1989) (finding that the Board is required to review the
      agency’s decision on an adverse action solely on the grounds invoked by the
      agency, and may not substitute what it considers to be a more adequate or
      proper basis).
¶13         Nonetheless, it is undisputed that the appellant openly threatened to report
      the supervisor to the nursing board in the middle of the January 8, 2014 meeting,
      in front of the other nurses present. The appellant provided statements from two
      nurses, S.R. and J.U., who stated that they did not believe it was “inappropriate”
      or “out of line” for the appellant to raise concerns about the floating issue. IAF,
      Tab 30 at 10-11. However, we can imagine no justification for the appellant to
      voice her concerns in the form of a threat. As stated in the letter of reprimand,
      the appellant’s behavior was inappropriate, unprofessional, and unbecoming a
      Federal employee. We note that the agency’s table of penalties prescribes a letter
      of   reprimand    as   the   minimum     penalty   for   a   first   offense   involving

      8
        To the extent the administrative judge found that the supervisor “perceived the events
      as such,” we find that this is not a sufficiently sound reason for overturning his
      demeanor-based credibility determination. ID at 15-16; see Haebe v. Department of
      Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). However, it does not follow from this
      that the supervisor’s perception was accurate.
                                                                                           10

      “unprofessional” or “discourteous” language. IAF, Tab 32 at 70. We agree with
      the administrative judge that, under these circumstances, the letter of reprimand
      was an “appropriately measured response.” ID at 14.
¶14         Regarding the second Carr factor, the record suggests that the supervisor
      had some motive to retaliate against the appellant based on disclosure (1), i.e.,
      her perception that the appellant had reported her to the state board of nursing the
      previous year for forgetting to chart an immunization. However, considering the
      record as a whole, we are convinced that the supervisor would have issued the
      reprimand regardless of whether she considered that perceived disclosure. While
      the letter of reprimand was evidently motivated to some extent by the appellant’s
      threat to file a report against the supervisor in the future, the threat of a disclosure
      does not by itself constitute protected whistleblowing activity under 5 U.S.C.
      § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D). We therefore find that the agency
      met its burden of proving by clear and convincing evidence that it would have
      issued the    March    4, 2014     letter   of   reprimand   absent   the   appellant’s
      whistleblowing.
¶15         The final issue to be decided is whether the agency proved by clear and
      convincing evidence that it would have imposed the 5-day suspension in the
      absence of the appellant’s whistleblowing activity.           In her April 18, 2014
      proposal notice, the supervisor indicated that she proposed to suspend the
      appellant on a charge of “Conduct Unbecoming a Federal Employee,” based on
      the following alleged incidents:
            Specification 1: On March 3, 2014, it was reported that you were
            rude to another employee who had asked you a question. The
            employee was looking for his wife who was being seen in the clinic.
            When he asked you where she was, you responded, “Who sent you
            back here? . . . Go back to the front to whoever sent you here.” You
            didn’t provide assistance to this employee and were rude when
            responding to his question.           This behavior exhibited was
            inappropriate, unprofessional, and detracted from your character.
            Therefore, you have displayed conduct that is unbecoming of a
            Federal employee.
                                                                                       11

            Specification 2: On March 7, 2014, I was speaking with another
            employee regarding . . . assignment sheets when you interrupted the
            conversation and loudly stated, “Why can’t you make out the
            assignment sheet . . . . You’re the supervisor and that’s part of your
            duties.” I explained that the charge nurse duties are in place and that
            you had signed off on them. You walked closer and loudly stated,
            “Oh no. I didn’t sign anything. Are you saying that as a supervisor
            you are refusing to make assignments? I’m going to notify the Merit
            Protection Board [sic] on you.” This behavior was inappropriate,
            unprofessional, and detracted from your character. Therefore, you
            have displayed conduct that is unbecoming of a Federal employee.
      IAF, Tab 11 at 23.
¶16         The agency’s evidence in support of Specification 1 consists largely of the
      testimony and written statements of the supervisor, who reported being told by an
      Information Technology (IT) employee that on the date in question he witnessed
      the appellant responding inappropriately to a man who was looking for his wife in
      the clinic. HT (testimony of the supervisor); IAF, Tab 19 at 14-15, Tab 30 at 14.
      The IT employee did not make a written statement, but signed and dated the
      portion of a March 28, 2014 email in which the supervisor summarized his verbal
      report.   IAF, Tab 19 at 15.       On review, the appellant asserts that the
      administrative judge neglected what she claims to be evidence that the supervisor
      coerced the IT employee into reporting the incident. PFR File, Tab 4 at 7. We
      find no such evidence. While the supervisor reported that the IT employee was
      “afraid” to make a written statement, see IAF, Tab 19 at 14, the basis of his fear
      is unclear from the record, and in any event he did not make a written statement,
      coerced or otherwise.    Furthermore, while the supervisor’s written statements
      were inconsistent as to whether the incident concerned the IT employee’s wife
      versus someone else’s wife, this particular detail is not essential to the merits of
      the charge.
¶17         As for Specification 2, the agency provided testimonial evidence from the
      supervisor who was the recipient of the appellant’s March 7, 2014 verbal attack.
      HT (testimony of the supervisor). In her response to the proposed suspension, the
                                                                                      12

      appellant stated that she did “not remember” the encounter, and asserted her
      “right to ask a question of a direct supervisor at any time without fear or of
      reprisals, retaliation, and intimidation.” IAF, Tab 11 at 21. However, she did not
      specifically deny, nor has she contested the administrative judge’s decision to
      credit, the supervisor’s version of events regarding the March 7, 2014 encounter.
¶18        As to the penalty, we agree with the administrative judge that a 5-day
      suspension was an “appropriately measured response” under the circumstances of
      this case. ID at 18; see O’Neill v. Department of Housing & Urban Development,
      220 F.3d 1354, 1364 (Fed. Cir. 2000) (“Insolent disrespect towards supervisors so
      seriously undermines the capacity of management to maintain employee
      efficiency and discipline that no agency should be expected to exercise
      forbearance for such conduct more than once.”); see also IAF, Tab 32 at 70
      (prescribing a 5-day suspension as the minimum penalty for a second offense
      involving “unprofessional” or “discourteous” language). In sum, we find that the
      evidence in support of the agency’s action is strong and that the first Carr factor
      therefore weighs in the agency’s favor.
¶19        On review, the appellant contends that the agency deprived her of due
      process rights, as well as her rights under the First and Sixth Amendments, when
      it imposed the 5-day suspension.      PFR File, Tabs 1, 5.     To the extent her
      constitutional claims are intended as affirmative defenses, the Board will not hear
      such affirmative defenses in the context of an IRA appeal.          See Van Ee v.
      Environmental Protection Agency, 64 M.S.P.R. 693, 699 (1994); 5 C.F.R.
      § 1209.2(c).
¶20        To the extent the appellant’s constitutional arguments might be construed as
      contesting the strength of the evidence in support of the agency’s action, we find
      they are without merit. The appellant reiterates her argument from below that the
      agency denied her due process by failing to provide her with documentation
      supporting the action. PFR File, Tab 1 at 4. However, the record reflects that she
      did not request such documentation during the response period, and did not
                                                                                        13

      complain about a lack of documentation until 7:29 p.m. on May 2, 2014, on the
      same date as, but after the decision to suspend her had already been issued, given
      that she clearly references in the request that she received the suspension letter
      earlier that day. IAF, Tab 31 at 9. The appellant also contends that she was
      deprived of a meaningful response to the proposed action because the deciding
      official had served as a concurring official in the investigation that led to the
      suspension action.   PFR File, Tab 1 at 4.     Nevertheless, we have held that a
      deciding official’s knowledge of and involvement in an investigation leading to
      disciplinary action does not by itself constitute a due process violation.       See
      Lange v. Department of Justice, 119 M.S.P.R. 625, ¶¶ 9-10 (2013).
¶21         We further find that the agency did not violate the appellant’s rights under
      the First Amendment.       The Supreme Court has clarified that Government
      employees retain their First Amendment right, as citizens, to comment on matters
      of public interest; the task in a particular case is to arrive at a balance between
      the interests of the employees in commenting on matters of public concern and
      the interest of the Government, as employer, in promoting the efficiency of the
      public services it performs through its employees.          Pickering v. Board of
      Education of Township High School District, 391 U.S. 563, 568 (1968).            The
      threshold question in applying this balancing test is whether the affected
      employee’s speech may be “fairly characterized as constituting speech on a
      matter of public concern,” i.e., whether it addresses items of “political, social, or
      other concern to the community,” as opposed to internal agency grievances.
      Jackson v. Small Business Administration, 40 M.S.P.R. 137, 145 (1989). Here,
      the verbal conduct for which the appellant was suspended did not amount to
      speech on a matter of public concern, and her First Amendment interest therefore
      gives way to the Government’s legitimate interest in the efficiency of the service.
      See Curry v. Department of the Navy, 13 M.S.P.R. 327, 331 (1982) (observing
      that employee speech that lacks a public dimension and is seen as subversive to
      good order, efficiency, or discipline in the workplace, is more likely to be held
                                                                                       14

      unprotected than speech that is more public in character). As for the appellant’s
      claim that the agency violated her Sixth Amendment rights, the Sixth Amendment
      concerns criminal prosecutions and has no application to an administrative case
      such as this.
¶22         Finally, as to the third Carr factor, we agree with the administrative judge
      that the evidence of retaliatory motive on the part of the responsible agency
      officials was not especially strong, at least concerning the 5-day suspension
      action.   Because disclosure (2) was not protected, and disclosure (4) was not a
      contributing factor in either personnel action, the only disclosures to be addressed
      are (1), (3), and (5). As to disclosure (3), concerning the appellant’s report of
      being asked to tamper with a medical record, there is no evidence that the
      proposing and deciding officials were either directly aware of that disclosure or
      influenced by someone who was.         To the extent the proposing or deciding
      officials may have been motivated to retaliate against the appellant for
      disclosure (5), the timing of events indicates that it is unlikely that retaliatory
      motive played a role in the 5-day suspension action.          The appellant made
      disclosure (5) on April 18, 2014, the same date as the proposal notice. In the
      unlikely event that the proposing official was aware of the disclosure when the
      proposal notice was issued, she had previously expressed her intention to suspend
      the appellant in the Douglas factors worksheet she prepared 2 days earlier. IAF,
      Tab 11 at 25-27. Moreover, there is no evidence that the deciding official was
      directly aware of disclosure (5), and to the extent she may have been influenced
      by the proposing official (after she learned of the disclosure) or the Information
      Specialist, the administrative judge found no indication that she would have
      imposed a lesser penalty otherwise. The administrative judge reached this finding
      based in part on his observation of the deciding official’s testimony, and we
      do not discern sufficiently sound reasons for overturning his credibility
      determination.   ID at 21; see Haebe v. Department of Justice, 288 F.3d 1288,
      1301 (Fed. Cir. 2002) .     Finally, while the supervisor may well have been
                                                                                      15

      motivated to retaliate against the appellant for perceived disclosure (1), we agree
      with the administrative judge that any retaliatory motive that could be attributed
      to her or the deciding official is outweighed by the strong evidence in support of
      the agency’s actions.
¶23        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 activity. We therefore affirm the initial decision.

                         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.
            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
      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
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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 U.S. 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 U.S. 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 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
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board 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.
