                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     PENNY J. SEWARD,                                DOCKET NUMBER
                   Appellant,                        DA-1221-14-0541-W-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: June 17, 2016
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Penny J. Seward, Conway, Arkansas, pro se.

           Thomas Kent Smith, Esquire, North Little Rock, Arkansas, 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 request for corrective action. Generally, we grant petitions such as
     this one only when: the initial decision contains erroneous findings of material
     fact; the initial decision is based on an erroneous interpretation of statute or


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 more fully address the agency’s motive to retaliate, we
     AFFIRM the initial decision.

                                      BACKGROUND
¶2         The appellant is employed by the agency as a Human Resources Specialist.
     Initial Appeal File (IAF), Tab 4 at 47. In 2012, she filed a complaint with the
     Office of Special Counsel (OSC) alleging that the agency had committed
     prohibited personnel practices in connection with the selection and promotion of
     certain other agency employees. Id. at 11-12. After analyzing the appellant’s
     complaint, OSC informed her in July 2013 that it was taking no further action on
     her complaint. Id. at 12-13, 16. The appellant then contacted her Congressman
     to ask him to intervene on her behalf with OSC. IAF, Tab 8 at 115-29. She
     forwarded to the Congressman the same materials she had submitted to OSC,
     including documents from the Official Personnel Files (OPFs) of the agency
     employees who were the subjects of the allegedly improper personnel actions. Id.
     It   appears   that   the   Congressman’s    office   forwarded    the   appellant’s
     correspondence, including the supporting materials from the OPFs, to the agency.
¶3         After receiving the materials forwarded by the Congressman’s office, the
     agency initiated an investigation into how and why the appellant had access to the
                                                                                      3

     personnel documents she sent to the Congressman. Id. at 113-14. In March 2014,
     the agency proposed the appellant’s removal based on unauthorized access of an
     individual’s   personnel   records,   unauthorized   possession   of   Government
     documents, and unauthorized disclosure. Id. at 107-12. After considering the
     appellant’s response to the proposed removal, id. at 102-06, the deciding official
     sustained the charges of unauthorized access of an individual’s personnel records
     and unauthorized possession of Government documents and did not sustain the
     charge of unauthorized disclosure, id. at 82-84. The deciding official determined
     that the appellant’s removal was justified, but offered her a last chance agreement
     in lieu of removal. Id. The appellant accepted the last chance agreement. Id. at
     85-86.
¶4        While her proposed removal was pending before the deciding official, the
     appellant filed a complaint with OSC in which she alleged that the agency had
     proposed her removal in retaliation for her protected disclosures to OSC and the
     Congressman. IAF, Tab 8 at 94-101. OSC provided her with a letter closing out
     her complaint and notifying her of her appeal rights to the Board. IAF, Tab 4
     at 46. This appeal followed. IAF, Tab 1.
¶5        On appeal, the administrative judge determined that the appellant had
     exhausted her administrative remedies and made nonfrivolous allegations that she
     made a protected disclosure that was a contributing factor in the agency’s
     proposed removal dated July 28, 2014, and thus, she had established Board
     jurisdiction over her individual right of action (IRA) appeal. IAF, Tab 29, Initial
     Decision (ID) at 4. The administrative judge advised the parties that the only
     issue adjudicated would be whether the agency retaliated against the appellant for
     engaging in whistleblowing when it proposed her removal. IAF, Tab 16 at 1.
¶6        After holding a hearing, the administrative judge found that the appellant
     engaged in protected whistleblowing when she reported what she believed to be
     prohibited personnel practices both to OSC and to her Congressman. ID at 9.
     The administrative judge also found that the appellant established that her
                                                                                       4

     disclosures were a contributing factor in her proposed removal.          ID at 10.
     However, after considering the record evidence, including the hearing testimony,
     the administrative judge found that the agency established by clear and
     convincing evidence that it would have proposed the appellant’s removal in the
     absence of her protected disclosure. ID at 10-15.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶7        Federal agencies are prohibited from taking, failing to take, or threatening
     to take or fail to take, any personnel action against an employee in a covered
     position because of the disclosure of information that the employee reasonably
     believes to be evidence of a violation of law, rule, or regulation, gross
     mismanagement, a gross waste of funds, an abuse of authority, or a substantial
     and specific danger to public health and safety. 5 U.S.C. § 2302(a)(2), (b)(8); see
     Jenkins v. Environmental Protection Agency, 118 M.S.P.R. 161, ¶ 16 (2012). To
     establish a prima facie case of whistleblower reprisal, the employee must prove,
     by preponderant evidence, that she made a protected disclosure and that the
     disclosure was a contributing factor in a personnel action against her. 5 U.S.C.
     §1221(e)(1); Jenkins, 118 M.S.P.R. 161, ¶ 16. If the appellant makes out a prima
     facie claim of whistleblower reprisal, the agency is given an opportunity to prove,
     by clear and convincing evidence, that it would have taken the same personnel
     action in the absence of the protected disclosure.        5 U.S.C. § 1221(e)(2);
     Jenkins, 118 M.S.P.R. 161, ¶ 16.
¶8        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; it is a higher standard than preponderant evidence. 5 C.F.R.
     § 1209.4(d).   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
                                                                                         5

      strength of any motive to retaliate on the part of 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); Jenkins, 118 M.S.P.R. 161, ¶ 16.
¶9          Here, the administrative judge found that the appellant engaged in protected
      whistleblowing when she reported what she believed to be prohibited personnel
      practices to both OSC and her Congressman, and that the appellant established
      that her disclosure was a contributing factor in her proposed removal. ID at 9.
      The agency does not dispute these findings on review.         Thus, the issue to be
      determined here is whether the agency has shown by clear and convincing
      evidence that, absent any protected disclosures, it would have proposed the
      appellant’s removal.
¶10         On review, the appellant reasserts her claim that she had a business need to
      access the employees’ records so that she could report a wrongdoing to the proper
      authorities, and she contends that the agency only learned of the conduct that
      formed the basis for the proposed removal when it learned of her disclosures.
      Petition for Review (PFR) File, Tab 1 at 2-9. The appellant argues that, because
      the conduct and the disclosures are inseparable, the agency cannot show by clear
      and convincing evidence that it would have taken the same action in the absence
      of her whistleblowing. Id. at 9. Specifically, the appellant asserts that, instead of
      contacting OSC as she had requested, her Congressman’s office erroneously sent
      the agency a copy of the information she had provided to it.         Id. at 6.   She
      contends that, because her contact with the Congressman’s office was a private,
      personal, and confidential matter, the agency never should have received a copy
      of her complaint and its accompanying documents, and thus, it would not have
      taken the action against her.      Id. at 6, 8.    The appellant argues that the
      administrative judge failed to give proper weight to her obligation to report a
      prohibited personnel practice and that her obligation to report a wrongdoing
                                                                                         6

      negated any testimony that she was not authorized to access the personnel
      records. Id. at 2-3.
¶11         The Board will consider evidence regarding the conduct of an agency
      investigation when the investigation was so closely related to the personnel action
      that it could have been a pretext for gathering evidence to retaliate against an
      employee     for     whistleblowing   activity.     Russell   v.   Department      of
      Justice, 76 M.S.P.R. 317, 323-24 (1997). When an investigation is so closely
      related to the personnel action that it could have been a pretext for gathering
      evidence to retaliate, and the agency does not show by clear and convincing
      evidence that the evidence would have been gathered absent the protected
      disclosure, then the appellant will prevail on her affirmative defense of retaliation
      for whistleblowing. Russell, 76 M.S.P.R. at 324. That the investigation itself is
      conducted in a fair and impartial manner, or that certain acts of misconduct are
      discovered during the investigation, does not relieve an agency of its obligation to
      demonstrate by clear and convincing evidence that it would have taken the same
      personnel action in the absence of the protected disclosure.          See 5 U.S.C.
      § 1221(e)(2).      In considering such evidence, the Board looks at where the
      investigation had its beginnings. Russell, 76 M.S.P.R. at 324.
¶12         In this case, the investigation of the appellant’s misconduct was initiated
      shortly after her Congressman sent the agency a copy of the information she had
      provided to him. Additionally, the agency official who initiated the investigation
      was involved in the personnel actions that were the subject of the appellant’s
      disclosures. IAF, Tab 8 at 113, 119. Thus, the investigation could have been a
      pretext for gathering evidence to use to retaliate against the appellant for
      whistleblowing. See Mangano v. Department of Veterans Affairs, 109 M.S.P.R.
      658, ¶ 44 (2008) (finding that an investigation could have been a pretext for
      retaliation where, inter alia, it was convened by the agency official who was the
      subject of the appellant’s whistleblowing).       Nevertheless, the whistleblower
      protection statutes are not meant to protect employees from their own misconduct,
                                                                                          7

      and an agency is not prohibited from taking an action based on proven
      misconduct simply because individuals with a motive to retaliate were involved in
      discovering that misconduct. Carr, 185 F.3d at 1326.
¶13        The agency received evidence from the appellant’s Congressman that gave
      it reason to believe the appellant may have improperly accessed the personnel
      records of other agency employees. To hold that the agency could not investigate
      the appellant’s misconduct simply because the initial source of its information
      was related to her protected disclosures would effectively shield the appellant
      from the consequences of her misconduct.        We do not read the whistleblower
      protection statutes as requiring such a result. See id. Instead, we find that the
      appropriate inquiry in these circumstances is whether the agency proved by clear
      and convincing evidence that it would have taken the same personnel action had it
      obtained the evidence of misconduct through means other than the employee’s
      protected disclosures. 2 Applying the Carr factors, and for the reasons set forth
      below, we find that the agency has met its burden.
¶14        First, we agree with the administrative judge that the agency had strong
      evidence in support of the proposed removal. In reaching her conclusion, the
      administrative judge thoroughly considered the hearing testimony, the record
      evidence that includes a report of contact documenting the appellant’s improper
      access of individual personnel records, and the appellant’s response to the
      proposal notice. ID at 4-14. The administrative judge also explicitly considered
      the appellant’s claim that she had a business need to access these records so that
      she could report a wrongdoing to the proper authorities. ID at 12.
¶15        In her response to the proposal notice, the appellant acknowledged that she
      was wrong to have accessed at least some of the employees’ personnel records.


      2
        The appellant asserts that the Congressman’s office erred in forwarding the evidence
      in question to the agency. PFR File, Tab 1 at 6. Even if the appellant’s assertion is
      correct, she has not shown why the agency should have ignored evidence of misconduct
      simply because the Congressman’s office may have forwarded that evidence in error.
                                                                                      8

      IAF, Tab 8 at 103. She subsequently signed a last chance settlement agreement in
      which she admitted that the agency’s decision to remove her was “fully justified.”
      Id. at 86. Although the appellant now asserts on review that she had to sign the
      agreement to avoid being removed, PFR File, Tab 1 at 9, the fact that she was
      faced with the unpleasant choice of entering into a last chance settlement
      agreement or opposing a potential removal action does not rebut the presumed
      voluntariness of her ultimate choice, see Schultz v. U.S. Navy, 810 F.2d 1133,
      1136-37 (Fed. Cir. 1987).
¶16         Further, while the appellant asserts on review that she accessed the
      personnel documents in the performance of her official duties, she acknowledged
      in her hearing testimony that she “audited” an individual who was not assigned to
      her area of service. Hearing Compact Disc (HCD). She also acknowledged that,
      when she determined that the selection of that individual was “illegal” because he
      did not have the requisite qualifications for the position, she did not tell her
      supervisor or anyone else that she had determined that his selection was
      improper. Id. Rather, she printed and removed copies of the Standard Form (SF)
      50s from the agency and then submitted copies of them to OSC and reported the
      selection as an alleged prohibited personnel practice. Id. On cross-examination
      the appellant “recanted” her statements in response to the proposed removal,
      including her acknowledgment that it was wrong to access the employees’ OPFs
      and her admission that she violated various policies and procedures, stating that
      she now has had time to think about it. Id. However, the administrative judge
      considered her recantation and found that the appellant offered no explanation as
      to why, given her concern about the legality of the personnel actions, she did not
      tell her supervisor or any other member of the Human Resources Management
      team. ID at 12. T.B., another agency Human Resources Specialist, testified that,
      if she discovered that an employee was not qualified for a position, she would
      speak up. HCD. T.B. also testified that she was aware of issues involving the
      qualifications of one of the individuals identified in the appellant’s initial
                                                                                       9

      complaint to OSC, but that instead of accessing that individual’s OPF, she
      “voiced her dissatisfaction.”   Id.   She testified that she never took home any
      employees’ personnel records or sent the documents anywhere outside of the
      agency. Id. We therefore reject the appellant’s assertion that the evidence in
      support of the proposed removal was weak because her job duties required her to
      access the personnel records in question.
¶17        The appellant also argues that the administrative judge erred in crediting a
      supervisor’s testimony that the appellant had no business reason to access the
      records in question. She argues that it “was not reasonable” for the supervisor to
      remember what work instructions and audits he had assigned her a year before.
      Similarly, the appellant asserts that the administrative judge erred by considering
      the proposing official’s testimony, and she asserts that his testimony was merely
      “opinion,” “hearsay,” and “not evidence.” PFR File, Tab 1 at 4. We disagree.
      The testimony in question concerns the appellant’s duties, the incident in
      question, and why her removal was proposed, and as such is relevant and material
      evidence that was provided under oath, and therefore, was properly considered
      and weighed by the administrative judge. See, e.g., Tisdell v. Department of the
      Air Force, 94 M.S.P.R. 44, ¶ 13 (2003) (explaining that an administrative judge
      has wide discretion to control the proceedings before him, to receive relevant
      evidence, and to ensure that the record on significant issues is fully developed).
      Further, in Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83 (1981), the
      Board noted that hearsay evidence is admissible in Board hearings “under well
      settled law that relevant hearsay evidence is admissible in administrative
      proceedings.” Thus, the appellant has shown no error by the administrative judge
      in considering the proposing official’s testimony.
¶18         Regarding the second Carr factor, the administrative judge found no
      evidence of any retaliatory motive on the part of the proposing official. Rather,
      the administrative judge found that all of the personnel actions predated the
      proposing official’s arrival at the facility, and thus, he played no role in the
                                                                                     10

      alleged prohibited personnel practices. ID at 13-15. Although the administrative
      judge thoroughly addressed the motive on the part of the proposing official, she
      did not address whether there was any motive to retaliate on the part of other
      agency officials. ID at 13-15. When applying the second Carr factor, the Board
      will 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 decision. See Carr, 185 F.3d at 1326; McCarthy v.
      International Boundary & Water Commission, 116 M.S.P.R. 594, ¶ 62 (2011),
      aff’d, 497 F. App’x 4 (Fed. Cir. 2012). We therefore modify the initial decision
      to more fully address the agency’s motive to retaliate.
¶19        The appellant asserted below that A.U., the Acting HR Chief, retaliated
      against her based on, inter alia, her initial OSC complaint. IAF, Tab 1. We find
      that A.U. could have had a strong retaliatory motive as she was previously the
      appellant’s immediate supervisor and testified against the appellant in her prior
      Board appeal. See Seward v. Department of Veterans Affairs, MSPB Docket No.
      DA-1221-11-0189-W-1, Final Order (Jan. 26, 2012). A.U. also signed the SF-50s
      that the appellant provided in support of her initial OSC complaint in this case.
      IAF, Tab 8 at 124-27.     Upon the agency’s receipt of the documents from the
      Congressman, A.U. directed the appellant’s immediate supervisor to investigate
      the appellant’s actions in accessing the employees’ personnel records. Id. at 113.
      However, the only additional involvement A.U. had in this case after initiating
      the investigation is a “Report of Contact” dated May 30, 2014. IAF, Tab 8 at 91.
      That document indicates that A.U. received the signed decision from the deciding
      official regarding the appellant’s proposed removal and that A.U. met with the
      appellant to deliver that decision to her. Id. There is no evidence in the record
      that A.U. had any further role in investigating the appellant’s misconduct or
      proposing her removal. Thus, while A.U. could have had a strong retaliatory
      motive against the appellant, we find that the strength of the evidence in support
                                                                                          11

      of the proposed removal far outweighs the motive to retaliate. See Carr, 185 F.3d
      at 1326.
¶20        Finally, concerning the third Carr factor, the record reflects that the agency
      has had no other employees engage in similar misconduct. Because there is no
      evidence showing that the agency takes similar actions against employees who are
      not whistleblowers but who are otherwise similarly situated, we find that the third
      factor is not a significant factor for the Board’s analysis in the instant appeal.
      McCarthy, 116 M.S.P.R. 594, ¶ 65.
¶21        Weighing the three Carr factors, we agree with the administrative judge
      that the agency established by clear and convincing evidence that it would have
      issued the notice of proposed removal in the absence of the appellant’s protected
      disclosures. While the appellant appears to believe that she was punished for
      making protected disclosures, her disclosures themselves are separate from her
      improper accessing of personnel records.        The appellant could have made her
      disclosures without improperly accessing those records; to the extent she needed
      the personnel records to report wrongdoing, she could have tried to obtain them
      through the Freedom of Information Act or other authorized means.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            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),
                                                                                 12

(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 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 your 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
13
                                                                                 14

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.
