                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KATHERINE L. FLEMING,                           DOCKET NUMBER
                   Appellant,                        AT-1221-11-0460-B-2

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: September 22, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Katherine L. Fleming, Homestead, Florida, pro se.

           Vicki V. Mott, Esquire, Atlanta, Georgia, 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 remand initial decision,
     which denied her request for corrective action in this individual right of action
     (IRA) appeal. Generally, we grant petitions such as this one only when: the
     remand initial decision contains erroneous findings of material fact; the remand
     initial decision is based on an erroneous interpretation of statute or regulation 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     the erroneous application of the law to the facts of the case; the judge’s rulings
     during either the course of the appeal or the remand initial decision were not
     consistent with required procedures or involved an abuse of discretion, and the
     resulting error affected the outcome of the case; or new and material evidence or
     legal argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed.        See Title 5 of the Code of Federal
     Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the
     filings in this appeal, and based on the following points and authorities, we
     conclude that the petitioner has not established any basis under section 1201.115
     for granting the petition for review.     Therefore, we DENY the petition for
     review. Except as expressly MODIFIED by this Final Order to find that the
     administrative judge took an overly restrictive view of the second factor set forth
     in Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999),
     we AFFIRM the remand initial decision.

                                     BACKGROUND
¶2        Effective September 18, 2005, the agency appointed the appellant to a
     GS-11 Museum Curator position with the agency’s National Park Service,
     Everglades National Park (Everglades), for a term not to exceed October 17,
     2006, subject to her completion of a 1-year trial period. Fleming v. Department
     of the Interior, MSPB Docket No. AT-1221-11-0460-W-1, Initial Appeal File
     (IAF), Tab 5, Subtab 4A. Effective June 24, 2006, the agency terminated the
     appellant for unacceptable behavior and unsatisfactory performance.            Id.,
     Subtabs 4B-4C. After exhausting her administrative remedies with the Office of
     Special Counsel, the appellant filed an IRA appeal and requested a hearing,
     alleging that her termination was in retaliation for her protected whistleblowing
     activity. IAF, Tab 1.
¶3        Without holding a hearing, the administrative judge issued an initial
     decision that dismissed the appeal for lack of jurisdiction. IAF, Tab 16, Initial
                                                                                    3

     Decision. On review, the Board found that the appellant had met her burden of
     showing that the Board has jurisdiction over her IRA appeal.         Fleming v.
     Department of the Interior, MSPB Docket No. AT-1221-11-0460-W-1, Remand
     Order at 11 (Aug. 3, 2012) (W-1 Remand Order). Specifically, the Board found
     that the appellant’s February 6, 2006 disclosure to her second-level supervisor
     (who also was the deciding official in the termination action) that she and a
     coworker had been exposed to toxic chemicals in October 2005, while painting
     cannons at the Dry Tortugas National Park (Dry Tortugas), and that she had
     suffered injuries, constituted a nonfrivolous allegation of a substantial and
     specific danger to public health and safety. Id. at 8-9; IAF, Tab 15, Subtab 4O.
     The Board further found that the appellant nonfrivolously alleged that this
     disclosure was a contributing factor in the agency’s decision to terminate her
     under the knowledge/timing test of 5 U.S.C. § 1221(e), because the disclosure
     predated the appellant’s termination letter by more than 4 months and the
     deciding official was clearly aware of the disclosure, as he was the recipient of
     the memorandum in which the disclosure was made.            W-1 Remand Order
     at 10-11. Therefore, the Board vacated the initial decision and remanded the
     appeal to the Atlanta Regional Office for a hearing and adjudication on the
     merits. Id. at 11-12.
¶4        After a hearing on remand, the administrative judge issued a remand initial
     decision denying the appellant’s request for corrective action.      Fleming v.
     Department of the Interior, MSPB Docket No. AT-1221-11-0460-B-1, Remand
     File, Tab 16, Remand Initial Decision (B-1 RID).       The administrative judge
     found that the appellant failed to prove that she made a protected disclosure
     because her February 6, 2006 disclosure revealed information that the deciding
     official already knew. B-1 RID at 4. The administrative judge also found that,
     assuming arguendo that the disclosure was protected and was a contributing
     factor to the appellant’s termination, the agency proved by clear and convincing
     evidence that it would have terminated the appellant during her probationary
                                                                                      4

     period even in the absence of the disclosure. B-1 RID at 4-6. In making this
     finding, the administrative judge noted that the appellant challenged her
     supervisor’s assertions regarding her performance and misconduct, but concluded
     that it was not necessary for him to consider whether the appellant’s supervisor’s
     criticisms of the appellant were correct because the issue in this appeal was the
     deciding official’s state of mind and whether he would have terminated the
     appellant in the absence of her alleged whistleblowing activity. B-1 RID at 5.
¶5        The Board granted the appellant’s petition for review, finding that, based
     upon the Whistleblower Protection Enhancement Act of 2012, the appellant’s
     February 6, 2006 disclosure was protected even though it revealed information
     that the deciding official already knew. Fleming v. Department of the Interior,
     MSPB Docket No. AT-1221-11-0460-B-1, Remand Order at 1, 4 (July 7, 2014)
     (B-1 Remand Order).       The Board also found that the administrative judge’s
     analysis of the clear and convincing evidence issue did not comply with the
     decision of the U.S. Court of Appeals for the Federal Circuit in Whitmore v.
     Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012). B-1 Remand Order at 6-7.
     The Federal Circuit in Whitmore held that “[e]vidence 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, 680 F.3d at 1368. The court further
     determined that “[i]t is error for the [Board] to not evaluate all the pertinent
     evidence in determining whether an element of a claim or defense has been
     proven adequately.” Id.
¶6        The Board found that, pursuant to Whitmore, the administrative judge was
     required to consider the appellant’s evidence and arguments that her supervisor’s
     assertions about her performance and conduct were unreasonable, as well as any
     other evidence that detracted from the agency’s claim that it terminated the
     appellant’s employment based only on her performance, including evidence
     pertaining to the existence and strength of a retaliatory motive by the agency.
                                                                                           5

     B-1 Remand Order at 7. Accordingly, the Board remanded the appeal again for a
     new determination as to whether the agency proved that it would have terminated
     the appellant even in the absence of her protected whistleblowing activity. Id.
     The Board directed the administrative judge to reconsider the record as a whole
     and make thoroughly-reasoned findings that address both the evidence
     supporting his conclusions and the countervailing evidence. Id.
¶7         Following a hearing on remand, the administrative judge issued a remand
     initial decision on November 21, 2014, denying the appellant’s request for
     corrective action.    Fleming v. Department of the Interior, MSPB Docket No.
     AT-1221-11-0460-B-2, Remand File (B-2 RF), Tab 11, Remand Initial Decision
     (B-2 RID) at 1-2, 7.         The administrative judge found that the appellant
     established that she made a protected disclosure and that her protected disclosure
     was a contributing factor to her termination under the knowledge/timing test.
     B-2 RID at 3. The administrative judge further found, however, that the agency
     showed by clear and convincing evidence that it would have taken the same
     personnel action even in the absence of whistleblowing. B-2 RID at 6-7.
¶8         The appellant has filed a timely petition for review of the remand initial
     decision. 2 Remand Petition for Review (RPFR) File, Tab 1. The agency has not
     responded to the petition for review.




     2
        The appellant filed her petition for review on December 22, 2014. See Remand
     Petition for Review (RPFR) File, Tab 1. By notice dated January 5, 2015, the Office of
     the Clerk of the Board incorrectly informed the appellant that the initial decision was
     issued on October 21, 2014, and that her petition for review was untimely filed because
     it was not postmarked or received in the Clerk’s office on or before November 25,
     2014, the 35th day following the issuance of the initial decision. RPFR File, Tab 2 at 1
     (citing 5 C.F.R. § 1201.114(e)). As noted above, however, the remand initial decision
     was issued on November 21, 2014. B-2 RID at 1. Thus, we find that the appellant’s
     petition for review is timely. Given our determination that the petition for review was
     timely filed, we need not rule on the appellant’s motion to accept her petition for
     review as timely filed. RPFR File, Tab 3.
                                                                                      6

                                       ANALYSIS
¶9        In an IRA appeal, after establishing the Board’s jurisdiction, the appellant
     then must establish a prima facie case of whistleblower retaliation by proving by
     preponderant evidence that he made a protected disclosure that was a
     contributing factor in a personnel action taken against him.             5 U.S.C.
     § 1221(e)(1); Mattil v. Department of State, 118 M.S.P.R. 662, ¶ 11 (2012). If
     the appellant meets that burden, the Board shall order such corrective action as it
     considers appropriate unless the agency shows 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)(1)-(2); Chambers v. Department of the
     Interior, 116 M.S.P.R. 17, ¶ 12 (2011). 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
     the “preponderance of the evidence” standard.          Sutton v. Department of
     Justice, 94 M.S.P.R. 4, ¶ 18 (2003), aff’d, 97 F. App’x 322 (Fed. Cir. 2004); 5
     C.F.R. § 1209.4(d).
¶10       The sole issue before the Board on review is whether the agency met its
     burden of proving by clear and convincing evidence that it would have
     terminated the appellant even in the absence of her whistleblowing. See B-2 RF,
     Tab 5 at 3. In determining whether an agency has met this burden, 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 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, 185 F.3d at 1323.
     The Board does not view these factors as discrete elements, each of which the
     agency must prove by clear and convincing evidence. Rather, the Board will
     weigh the factors together to determine whether the evidence is clear and
                                                                                     7

  convincing as a whole. Lu v. Department of Homeland Security, 122 M.S.P.R.
  335, ¶ 7 (2015).
  The strength of the agency evidence in support of the appellant’s termination.
¶11    Regarding the first Carr factor, the administrative judge found that the
  agency showed that it had valid reasons to terminate the appellant during her
  trial period. B-2 RID at 4. In making this finding, the administrative judge
  considered the hearing testimony of the appellant’s immediate supervisor and the
  deciding official regarding their reasons for terminating the appellant, as well as
  the appellant’s arguments pertaining to this factor.        B-2 RID at 4-5.      The
  administrative judge noted that the appellant’s supervisor testified that she had
  serious concerns regarding both the appellant’s performance and conduct. B-2
  RID at 4. In particular, she stated that the appellant did not listen to directions,
  was unwilling to communicate with her about the status of her work, argued with
  her, and failed to timely follow instructions. Id. In his hearing testimony, as
  summarized in the remand initial decision, the deciding official stated that the
  appellant’s supervisor began coming to him with her concerns regarding the
  appellant almost immediately after she was hired, and that an experienced
  archivist at another national park who reviewed the appellant’s work at his
  request provided unfavorable feedback regarding her performance. B-2 RID at 5.
  The deciding official also testified that he decided to remove the appellant
  because her conduct and performance were unacceptable and threatened
  Everglades’ ability to meet its goals. B-2 RID at 6.
¶12    Turning to the appellant’s arguments regarding the first Carr factor, 3 the
  administrative judge noted that the appellant challenged her supervisor’s claims.
  B-2 RID at 4. More specifically, the administrative judge stated that, although
  the appellant acknowledged that she and her supervisor frequently discussed her

  3
    The remand initial decision does not indicate whether the administrative judge’s
  analysis of the appellant’s arguments was based on her hearing testimony, her written
  arguments, or both. See B-2 RID at 4.
                                                                                    8

  supervisor’s dissatisfaction with her performance, she denied having willfully
  failed to follow her supervisor’s instructions.       Id.   Rather, the appellant
  contended that her supervisor’s instructions were frequently unclear and
  contradictory, as she would tell the appellant to do one thing and then, later, tell
  her to do something entirely different. Id. The appellant claimed that if she
  agreed with her supervisor, she was accused of condescension; however, if she
  disagreed, she was accused of insubordination. Id.
¶13    The administrative judge found that the appellant’s supervisor had the right
  to have her instructions followed even if the appellant disagreed with them. B-2
  RID at 4-5.   The administrative judge did not explicitly find that the appellant
  failed to follow her supervisor’s instructions or make any explicit credibility
  determinations. However, in light of his conclusion that the agency showed that
  it had valid reasons to terminate the appellant, the administrative judge evidently
  credited the testimony of the appellant’s supervisor and implicitly found that the
  appellant failed to follow instructions. The appellant challenges this finding on
  review, reiterating her argument that her supervisor’s instructions were
  frequently unclear and contradictory. RPFR File, Tab 1 at 14. We find that this
  argument constitutes mere disagreement with the administrative judge’s implied
  finding that the appellant failed to follow instructions and, as such, provides no
  basis for disturbing the initial decision. See Broughton v. Department of Health
  & Human Services, 33 M.S.P.R. 357, 359 (1987).
¶14    The appellant also challenges the administrative judge’s implied credibility
  findings on review, alleging that agency witnesses displayed numerous
  inconsistencies, omissions, and misrepresentations in their testimony.       RPFR
  File, Tab 1 at 4. For example, the appellant alleges that her supervisor implied
  that photographs of waste cans were taken during the 2005 Dry Tortugas project;
  however, she claims they were actually taken at a later date. Id. at 4-5. The
  appellant also asserts that her supervisor provided inconsistent statements
  regarding the solvent that was used on cannons during the Dry Tortugas project,
                                                                                         9

      initially stating that toluene was used but subsequently testifying that xylene was
      used. Id. at 5-6. We have reviewed the record and we discern no specific error
      with the administrative judge’s credibility determinations. The Board must give
      deference to an administrative judge’s credibility determinations when they are
      based, explicitly or implicitly, on the observation of the demeanor of witnesses
      testifying at a hearing, and may overturn such determinations only when it has
      “sufficiently sound” reasons for doing so.            Haebe v. Department of
      Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The alleged discrepancies cited
      by the appellant relate to minor matters and do not constitute sufficiently sound
      reasons to disturb the administrative judge’s implied credibility findings. See
      Hillen v. Department of the Army, 35 M.S.P.R. 453, 459 (1987) (determining that
      inconsistent statements do not necessarily render a witness’s testimony
      incredible).
¶15        Based on our review of the record, we find that the evidence in support of
      the appellant’s termination was very strong.          The agency’s reasons for
      terminating the appellant are supported by testimony as well as documentation
      showing that the agency’s concerns regarding the appellant’s conduct predated
      her protected disclosure of February 6, 2006.      In particular, as noted in the
      remand initial decision, the appellant’s supervisor first approached the deciding
      official regarding her concerns about the appellant’s conduct almost immediately
      after she was hired.   B-2 RID at 5; see IAF, Tab 15, Subtab 4M at 1.             By
      January 13, 2006, those concerns had escalated to the point that the appellant’s
      supervisor sent the deciding official a memorandum asking to terminate the
      appellant for misconduct.      IAF, Tab 15, Subtab 4L at 1-2.            With her
      memorandum, the appellant’s supervisor submitted a lengthy document detailing
      the appellant’s misconduct from early October until mid-January. 4 Id. at 3-13.


      4
         After discussions involving the deciding official and Everglades’ Deputy
      Superintendent, the appellant’s supervisor issued the appellant a proposed 3-day
      suspension on January 26, 2006, based on a charge of failure to follow supervisory
                                                                                        10

¶16        Moreover, the deciding official did not rely solely on the opinions of the
      appellant’s supervisor in deciding to terminate the appellant. As noted in the
      remand initial decision, instead of simply accepting the appellant’s supervisor’s
      opinions regarding the appellant’s conduct and performance, the deciding official
      asked an experienced archivist at another national park to provide him with an
      opinion regarding the appellant’s performance, and those findings were adverse
      to the appellant.   B-2 RID at 6; see IAF, Tab 5, Subtab 4F (stating that the
      appellant was resistant to taking direction and imparting information). Notably,
      the archivist expressed concern that, in light of the appellant’s slow rate of
      progress on a project that she had been assigned, the project would not be
      completed and the Everglades would lose funding. IAF, Tab 5, Subtab 4F. The
      archivist’s written report strongly supports the agency’s decision to terminate the
      appellant.
      The existence and strength of any motive to retaliate on the part of agency
      officials who were involved in the decision.
  ¶17      Turning to the second Carr factor, the administrative judge found that the
      deciding official would have had no motive to retaliate against the appellant
      based upon her disclosure.      B-2 RID at 6.      In support of this finding, the
      administrative judge stated that, although the appellant’s supervisor and several
      employees working on the Dry Tortugas project were subordinates of the
      deciding official, neither the deciding official nor the appellant’s supervisor were
      responsible for the project. Id. Rather, as the administrative judge correctly
      found, the person responsible for the project was not under the command or
      control of the Everglades. Id. In Whitmore, however, the court cautioned the
      Board against taking an unduly dismissive and restrictive view of retaliatory
      motive, holding that “[t]hose responsible for the agency’s performance overall

      instructions, which was supported by seven specifications. See IAF, Tab 15, Subtab 4M
      at 1, Subtabs 4N, 4S. By memorandum dated April 26, 2006, the deciding official
      sustained four of the seven specifications and mitigated the proposed suspension to a
      2-day suspension. Id., Subtab 4S.
                                                                                 11

  may well be motivated to retaliate even if they are not directly implicated by the
  disclosures, and even if they do not know the whistleblower personally, as the
  criticism reflects on them in their capacities as managers and employees.”
  Whitmore, 680 F.3d at 1370.
¶18    We find the administrative judge erred in taking an overly restrictive view
  of the second Carr factor. Although neither the deciding official nor the
  appellant’s supervisor was directly implicated in the appellant’s disclosure, it
  arguably reflected poorly on them in their capacity as managers, which is
  sufficient to establish a retaliatory motive. See Chambers, 116 M.S.P.R. 17, ¶ 69
  (finding motive to retaliate because the appellant’s disclosures reflected on the
  responsible agency officials as representatives of the general institutional
  interests of the agency). Thus, we find that there may have been some motive to
  retaliate against the appellant for her protected disclosure.
  Evidence that the agency takes similar actions against employees who are not
  whistleblowers but who are otherwise similarly situated.
¶19    Regarding the third Carr factor, there is no evidence indicating that any
  nonwhistleblowing comparator employees were treated differently than the
  appellant. Therefore, this is not a significant factor for the Board’s analysis in
  the instant appeal. See Whitmore, 680 F.3d at 1374 (noting that the agency is not
  required to submit evidence as to each Carr factor, and recognizing that the
  absence of evidence relating to the third Carr factor “can effectively remove that
  factor from the analysis”).
¶20    Weighing the two remaining Carr factors against one another, we agree
  with the administrative judge that the agency has met its burden of showing by
  clear and convincing evidence that it would have terminated the appellant absent
  her protected disclosure. See B-2 RID at 6-7. Although the agency officials
  involved in the termination decision had some motive to retaliate, the agency had
  a very strong basis to terminate the appellant because of her misconduct and poor
                                                                                   12

performance.       Therefore, we conclude that the administrative judge properly
denied the appellant’s request for corrective action. B-2 RID at 2, 7.

                   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 United States Court of Appeals for the
Federal Circuit.
        The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
        If you want to request review of the Board’s decision concerning your
claims    of   prohibited   personnel   practices   under   5   U.S.C.   § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both.    Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
        If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
                                                                                 13

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,     at   our     website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States Court of Appeals for the Federal
Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular
relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is
contained within the court's Rules of Practice, and Forms 5, 6, and 11.
Additional information about other courts of appeals can be found at their
respective          websites,          which          can        be        accessed
through http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
     If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono for           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.
