Case: 19-2022    Document: 37     Page: 1   Filed: 06/09/2020




        NOTE: This disposition is nonprecedential.


   United States Court of Appeals
       for the Federal Circuit
                  ______________________

                 NATHAN B. CERULLI,
                      Petitioner

                             v.

             DEPARTMENT OF DEFENSE,
                      Respondent
                ______________________

                        2019-2022
                  ______________________

    Petition for review of the Merit Systems Protection
 Board in No. SF-1221-18-0624-W-1.
                 ______________________

                   Decided: June 9, 2020
                  ______________________

     JOHN THOMAS HARRINGTON, The Employment Law
 Group, PC, Washington, DC, for petitioner. Also repre-
 sented by ROBERT SCOTT OSWALD.

     MARGARET JANTZEN, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, for respondent. Also represented by JOSEPH H.
 HUNT, ELIZABETH MARIE HOSFORD, ROBERT EDWARD
 KIRSCHMAN, JR.
                   ______________________
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 2                                       CERULLI   v. DEFENSE



     Before MOORE, TARANTO, and CHEN, Circuit Judges.
 PER CURIAM.
     Nathan B. Cerulli appeals from a decision of the Merit
 Systems Protection Board (Board) denying Mr. Cerulli’s re-
 quest for corrective action under the Whistleblower Protec-
 tion Act (WPA). We affirm.
                       BACKGROUND
     Mr. Cerulli is a Fire Protection Inspector at the De-
 fense Logistics Agency (DLA) in San Joaquin, California.
 He joined DLA in 2009 as a firefighter and became an in-
 spector in 2012.
      On December 19, 2016, Assistant Chief Burl Danley
 was in the workplace kitchen with three firefighters pre-
 sent. Referencing the movie Predator, Mr. Danley stated
 he would “clean house” in “12 days” and mimed shooting an
 automatic weapon while making gun noises. J.A. 361. The
 following morning, one of the witnesses, David Reinhard,
 reported the incident to Chief Bismarck Castro. Mr. Rein-
 hard believed Mr. Danley “was threatening retaliation” for
 an ongoing investigation against him regarding allegations
 of workplace bullying and harassment. J.A. 365. The inci-
 dent was added to the ongoing investigation of Mr. Danley,
 and he was placed on administrative leave.
     Shortly thereafter, Mr. Cerulli learned of Mr. Danley’s
 December 19, 2016, statements from a witness. He also
 learned that a complaint had been filed, witness state-
 ments had been submitted, and an investigation was un-
 derway. On December 30, 2016, Mr. Cerulli reported for
 work and saw that Mr. Danley was scheduled to work on
 January 2, 2017. Mr. Cerulli knew that the investigation
 had not yet concluded and noticed that none of the other
 chiefs were scheduled to work on that day. Concerned, Mr.
 Cerulli met with one of his supervisors and the person as-
 signed to investigate the incident, Paul Story, to explain
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 CERULLI v. DEFENSE                                          3



 that he did not feel comfortable working with Mr. Danley.
 J.A. 539-41.
     That same day, Mr. Cerulli also expressed his concerns
 in an email to Mr. Castro, Mr. Story, and his immediate
 supervisor, Assistant Chief Gregory Watkins. In his email,
 Mr. Cerulli stated that he considered Mr. Danley’s com-
 ments to be a serious threat of workplace violence and de-
 scribed concerns with Mr. Danley returning to work while
 the investigation was still open. Mr. Cerulli further stated
 that he would use “whatever leave I have, leave without
 pay included,” if Mr. Danley was scheduled to return to
 work while the investigation was still ongoing. J.A. 439.
 He then submitted a request for leave and abruptly left for
 the day. His leave request for January 2 was later denied,
 but he was permitted to work from an alternative building
 on that day.
      On January 2, 2017, Mr. Cerulli noticed Mr. Danley’s
 vehicle parked outside a storage building near his work-
 station and became concerned because it was unusual for
 Mr. Danley to be at that building. After observing Mr. Dan-
 ley drive away, Mr. Cerulli returned to his workstation,
 locked the door, and placed a small paring knife into his
 sock “as a last means ditch effort to be able to protect [him-
 self]” in case of an attack. J.A. 554-55. This was in addition
 to the duty knife that he routinely carried while working.
 Mr. Cerulli ultimately did not encounter or otherwise con-
 front Mr. Danley that day.
     Between January 3 and January 10, 2017, Mr. Cerulli
 had several meetings with various supervisors to discuss
 the safety concerns from his December 30, 2016, email. In
 particular, on January 10, 2017, Mr. Cerulli met with his
 direct supervisor, Mr. Watkins, and disclosed that he had
 armed himself with a paring knife on January 2 because he
 was “not going to be a victim.” J.A. 273. Mr. Watkins was
 concerned that Mr. Cerulli had armed himself and ap-
 peared “visibly shaken and emotional,” even after learning
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 4                                         CERULLI   v. DEFENSE



 that Mr. Danley had a legitimate reason for being at the
 storage building that day. Id. Feeling troubled, Mr. Wat-
 kins filed a police report and was directed to place Mr. Ce-
 rulli on administrative leave for a day.
     Based on Mr. Cerulli’s behavior between December 30,
 2016, and January 10, 2017, Mr. Castro ordered Mr. Ce-
 rulli to undergo a fitness for duty examination to determine
 his “continued capacity to meet the requirements of [his]
 position.” J.A. 263-64. The order explained that a Fire Pro-
 tection Inspector must be able to “maintain alertness, self-
 control and emotional stability to work in conditions of
 stress, confusion, panic, physical injury and even death
 that occurs at major disasters.” J.A. 264. This requirement
 was also included in the formal description of the position’s
 responsibilities enclosed with the order.
     On the advice of his representative, Mr. Cerulli did not
 appear for his scheduled fitness for duty examination on
 January 24, 2017, believing that he should instead negoti-
 ate to be evaluated by his personal physician. Subse-
 quently, Mr. Cerulli submitted to a fitness for duty
 examination the following month in which he was cleared
 for duty by Dr. Corky Hull at DLA. During the exam, Dr.
 Hull primarily performed a mental status evaluation and
 asked questions concerning Mr. Cerulli’s mental health.
     For failing to attend the January 24 exam, Mr. Castro
 proposed a 30-day suspension from duty without pay,
 which Chief Andy Eskew mitigated to 10 days given Mr.
 Cerulli’s strong record of performance, agency awards, and
 lack of prior disciplinary action. Mr. Cerulli served his sus-
 pension from April 16–25, 2017.
      On September 6, 2017, Mr. Cerulli filed a complaint
 with the Office of Special Counsel (OSC). The OSC closed
 its inquiry into his complaint on April 27, 2018. Mr. Cerulli
 then filed an Individual Right of Action (IRA) with the
 Board on June 29, 2018, alleging that the agency had sub-
 jected him to a fitness for duty examination and suspension
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 CERULLI v. DEFENSE                                          5



 in violation of the WPA because they were in retaliation for
 making protected disclosures in his December 30, 2016,
 email and during various subsequent meetings with super-
 visors. Based on the testimony and evidence presented, the
 administrative judge found that Mr. Cerulli had made a
 protected disclosure in his December 30 email and had es-
 tablished that his disclosure was a contributing factor in
 the agency’s personnel actions. But the administrative
 judge also found that the agency had proven by clear and
 convincing evidence that it would have taken the same dis-
 ciplinary actions notwithstanding Mr. Cerulli’s disclosure
 and therefore that corrective action was not warranted.
 Because Mr. Cerulli did not appeal the administrative
 judge’s initial decision to the full Merit Systems Protection
 Board, it became the final decision of the Board on April
 18, 2019. See 5. U.S.C. § 7701(e)(1). Mr. Cerulli timely
 appealed to this court. We have jurisdiction under 28
 U.S.C. § 1295(a)(9).
                         DISCUSSION
     Under our limited review, we must affirm a decision of
 the Board unless it is “(1) arbitrary, capricious, an abuse of
 discretion, or otherwise not in accordance with the law; (2)
 obtained without procedures required by law, rule, or reg-
 ulation having been followed; or (3) unsupported by sub-
 stantial evidence.”      5 U.S.C. § 7703(c).      Substantial
 evidence is “relevant evidence” that “a reasonable mind
 might accept as adequate to support a conclusion.” Snyder
 v. Dep't of the Navy, 854 F.3d 1366, 1372 (Fed. Cir. 2017).
    The WPA prohibits an agency from taking adverse per-
 sonnel actions 1 against employees in response to protected



     1    A “personnel action” includes, among other things,
 “a decision to order psychiatric testing or examination” and
 “disciplinary or corrective action.” 5 U.S.C. § 2302(a)(2)(A).
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 6                                         CERULLI   v. DEFENSE



 disclosures made by the employees. 5 U.S.C. § 2302(b)(8)–
 (9). Protected disclosures include “any disclosure of infor-
 mation by an employee . . . which the employee . . . reason-
 ably believes evidences—(i) any violation of any law, rule,
 or regulation, or (ii) gross mismanagement, a gross waste
 of funds, an abuse of authority, or a substantial and specific
 danger to public health or safety.” Id. An employee who
 believes he has been subjected to illegal retaliation must
 prove by a preponderance of the evidence that he made a
 protected disclosure that contributed to the agency’s action
 against him. See Whitmore v. Dep’t of Labor, 680 F.3d
 1353, 1367 (Fed. Cir. 2012). “If the employee establishes
 this prima facie case of reprisal for whistleblowing, the bur-
 den of persuasion shifts to the agency to show by clear and
 convincing evidence that it would have taken ‘the same
 personnel action in the absence of such disclosure.’” Id. at
 1364 (quoting 5 U.S.C. § 1221(e)).
     In determining whether an agency has established that
 it would have taken a personnel action in the absence of a
 protected disclosure, the Board may consider: (1) “the
 strength of the agency’s evidence in support of its personnel
 action;” (2) “the existence and strength of any motive to re-
 taliate 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 whis-
 tleblowers but who are otherwise similarly situated.” Carr
 v. Soc. Sec. Amin.,185 F.3d 1318, 1323 (Fed. Cir. 1999).
                       I. Carr Analysis
     Substantial evidence supports the Board’s analysis of
 the Carr factors with respect to the fitness for duty order



 The parties agree that the fitness for duty examination and
 suspension both constitute personnel actions within the
 meaning of the statute.
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 CERULLI v. DEFENSE                                          7



 and the 10-day suspension. 2 As explained below, the Board
 reasonably found that the agency proved by clear and con-
 vincing evidence that it would have taken the same person-
 nel actions in the absence of Mr. Cerulli’s protected
 disclosure.
           A. Strength of the Agency’s Evidence
     As to the first Carr factor, the Board found strong evi-
 dence supporting the agency’s decision to order a fitness for
 duty examination. The Board relied on the fitness for duty
 order itself, which described specific instances of Mr. Ce-
 rulli’s conduct that gave the agency concern as to whether
 he was mentally and emotionally stable enough to continue
 performing the duties of a Fire Protection Inspector. These
 instances include: (1) Mr. Cerulli abruptly leaving work
 without permission on December 30, 2016, despite the fact
 that Mr. Danley was not present on that day; (2) hypervig-
 ilance by way of arming himself with a paring knife, seek-
 ing leave, and monitoring Mr. Danley’s activities on
 January 2, 2017; (3) discussions regarding Mr. Cerulli’s
 prior PTSD diagnosis; and (4) Mr. Cerulli’s feelings of being
 “violated” and “sick to [his] stomach” from a heated conver-
 sation with Mr. Eskew and Mr. Castro on January 3, 2017.
 J.A. 263. Moreover, the Board cited the testimony of Mr.
 Watkins, who described Mr. Cerulli’s physical appearance
 during their January 10 meeting as “very upset and emo-
 tional, his face was red, and his eyes teared up.” J.A. 24.
 Mr. Castro also testified that he ordered the fitness for duty
 examination out of concern for Mr. Cerulli’s “emotional
 wellbeing” and “safety of the organization” because “it


     2   The Board’s Carr analysis is premised on the un-
 disputed finding that Mr. Cerulli’s December 30, 2016,
 email constitutes a protected disclosure that was a contrib-
 uting factor in the agency’s personnel actions. We address
 Mr. Cerulli’s arguments regarding whether there were ad-
 ditional protected disclosures infra (§ II).
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 8                                        CERULLI   v. DEFENSE



 could be very dangerous . . . if [he was] not a hundred per-
 cent there.” J.A. 702. While acknowledging that Mr. Ce-
 rulli did not threaten anyone, the Board nonetheless
 emphasized his decision to arm himself with a knife, ob-
 serving that no other employee—including the three wit-
 nesses to Mr. Danley’s statements—was so greatly
 concerned that they “absented themselves from working
 with [Mr. Danley] or armed themselves as a defensive
 measure.” J.A. 25. Accordingly, substantial evidence sup-
 ports the Board’s finding that “the agency had a legitimate
 reason to order [Mr. Cerulli] to undergo a fitness for duty
 examination.” Id.
      The Board also found “strong evidence in support of the
 10-day suspension” imposed on Mr. Cerulli. J.A. 26. It is
 undisputed that Mr. Cerulli did not attend his scheduled
 fitness for duty examination on January 24, 2017, and that
 he was suspended for failing to follow orders. The Board
 rejected the argument that the 10-day suspension was un-
 warranted because the fitness for duty order was itself im-
 proper. Instead, the Board observed that even if an order
 is improper, “an employee must comply with a lawful order
 and grieve the propriety of that order later.” Dias v. De-
 partment of Veterans Affairs, 102 M.S.P.R. 53, 57 (2006),
 aff’d, 223 Fed.Appx. 986 (Fed. Cir. 2007).
     On appeal, Mr. Cerulli argues that the fitness for duty
 order was not just inappropriate, but unlawful, and any
 personnel action resulting from his failure to follow the or-
 der cannot satisfy the first Carr factor. Relying on the
 Board’s finding that the fitness examination included “a
 psychiatric component,” J.A. 13-14, Mr. Cerulli cites Harris
 v. Department of Air Force, 62 M.S.P.R. 524 (1994), for the
 proposition that an employee may not be disciplined for
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 CERULLI v. DEFENSE                                          9



 refusing to participate in a psychiatric examination that
 violates 5 C.F.R. § 339.301(e)(1). 3 Id. at 527-29.
       Section 339.301(e)(1) states that an agency may only
 order a psychiatric examination under two circumstances:
 (i) a properly-ordered physical examination “indicates no
 physical explanation for behavior or actions which may af-
 fect the safe and efficient performance” of the employee or
 others; or (ii) “a psychiatric examination or psychological
 assessment is part of the medical standards for a position .
 . . or required under a medical evaluation program.” Id. In
 Harris, the Board ruled in favor of an employee who was
 wrongly disciplined for failing to cooperate in a psychiatric
 examination violating § 339.301(e)(1). With respect to
 § 339.301(e)(1)(ii), 4 the Board found that “there [was] no




     3    Mr. Cerulli also argues that the fitness for duty or-
 der violates 5 C.F.R. § 339.301(e)(2), which requires a psy-
 chiatric examination authorized under (e)(1) to be
 conducted “by a licensed physician certified in psychiatry
 by the American Board of Psychiatry and Neurology or the
 American Osteopathic Board of Psychiatry and Neurology,
 or by a licensed psychologist or clinical neuropsychologist.”
 Id. While the Board found that Dr. Hull was not qualified
 under § 339.301(e)(2), we find that the order itself does not
 violate § 339.301(e)(2). Nothing in the order requires Mr.
 Cerulli to receive his examination from a physician that
 does not meet the requirements of § 339.301(e)(2). The or-
 der merely specifies that the examination will be conducted
 by a “physician at the Occupational Health Office.” J.A.
 264.
     4    The Board in Harris also found that
 § 339.301(e)(1)(i) did not apply because there was no evi-
 dence that the employee’s behavior or actions affected the
 safe and efficient performance of herself or others. 62
 M.S.P.R. at 528.
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 10                                        CERULLI   v. DEFENSE



 allegation or evidence to indicate that [the employee] held
 a position that had medical standards.” 62 M.S.P.R. at 528.
     Here, unlike in Harris, the record supports that Mr.
 Cerulli’s position does require medical standards implicat-
 ing a psychological assessment. Specifically, a description
 of the Fire Protection Inspector position enclosed with the
 fitness for duty order states that the position requires the
 “[a]bility to maintain alertness, self-control, and emotional
 stability to work in conditions of stress, confusion, panic,
 and physical injury and even death.” J.A. 269. We there-
 fore find Mr. Cerulli’s argument that the fitness for duty
 order violates § 339.301(e)(1) unavailing.
                   B. Motive to Retaliate
      With respect to the second Carr factor, the Board
 properly found little retaliatory motive by the agency offi-
 cials involved in recommending or issuing the fitness for
 duty order and 10-day suspension. As an initial matter,
 the Board found no evidence that Mr. Castro or Mr. Eskew
 were beholden to Mr. Danley or “implicated directly in the
 disclosure.” J.A. 27. The Board relied on undisputed evi-
 dence that, at the time of Mr. Cerulli’s disclosure, his su-
 pervisors had already initiated an investigation into Mr.
 Danley’s December 19, 2016, statements and placed him on
 administrative leave. The Board further remarked that
 “perhaps most telling as to whether the agency retaliated
 against [Mr. Cerulli], there is no evidence in the record that
 the agency retaliated against other employees who re-
 ported Danley’s comment, including Reinhard, who was
 first to report his concern of the threat.” J.A. 29. Based on
 this evidence, the Board could not “conclude that any of the
 agency officials had a strong motive to retaliate.” J.A. 27.
      Mr. Cerulli, however, argues that his disclosures dif-
 fered from that of other employees who reported Mr. Dan-
 ley’s comments because his December 30 email “created a
 written record” that “reached several levels of his supervi-
 sory chain.” Appellant’s Br. 50. Mr. Cerulli further argues
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 CERULLI v. DEFENSE                                        11



 that the repeated nature of his disclosures threatened the
 agency’s “ability to stifle discussion of Danley’s behavior.”
 Appellant’s Br. 51. However, this ignores the fact that a
 written record was already under development in the on-
 going investigation (J.A. 359-66), and Mr. Danley’s behav-
 ior was already an active topic of discussion in the
 workplace.
      The weight to be given to the evidence of record is a
 “judgment call[] that rest[s] primarily within the discretion
 of the Board.” Koenig v. Dep’t Of Navy, 315 F.3d 1378, 1381
 (Fed. Cir. 2003). Based on the record before us, substantial
 evidence supports the Board’s finding that the evidence of
 motivation to retaliate was relatively weak.
     C. Treatment of Others Who Were Similarly Situated
     As to the third Carr factor, the Board correctly found
 the comparator evidence submitted by the agency weighed
 in the agency’s favor. With respect to the fitness for duty
 examination, the Board considered a comparable case, MD,
 who was accepted into a leadership program within the
 agency but was dismissed within a week. The agency rec-
 ommended 5 that MD undergo a fitness for duty examina-
 tion based on “unusual behaviors.” J.A. 311. Specifically,
 MD had told various lies, took oxycodone without a valid
 prescription, and admitted to having had a “mental break
 from reality.” Id.
     With respect to the 10-day suspension, the Board found
 EA to be comparable. EA was suspended for failing to fol-
 low instructions to provide medical documentation in con-
 nection with a fitness for duty examination to determine
 whether he was cleared to return to work. Similar to Mr.
 Cerulli’s situation, a 30-day suspension was originally


     5   The agency offered for MD to undergo a fitness for
 duty examination but could not require him to submit due
 to the nature of his position.
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 12                                      CERULLI   v. DEFENSE



 proposed, which was subsequently mitigated to 14 days.
 Neither MD nor EA were whistleblowers.
      Mr. Cerulli argues that neither MD nor EA are appro-
 priate comparators. According to Mr. Cerulli, his concern
 for Mr. Danley’s behavior and desire to protect himself was
 reasonable whereas MD’s drug use and lying was not.
 However, as the Board stated in its decision, what makes
 MD an appropriate comparator is the fact that both MD
 and Mr. Cerulli “demonstrated behavior that caused an ob-
 jective concern” to management regarding the “ability to
 perform essential functions of [the] position,” and in both
 situations, the agency proposed a fitness for duty examina-
 tion. J.A. 28. While not a rigorous comparison, we find
 that substantial evidence supports the Board’s determina-
 tion that this comparator evidence weighs in favor of the
 agency.
      Mr. Cerulli further argues that EA is not an appropri-
 ate comparator because EA’s suspension was justified
 whereas his was not. Specifically, Mr. Cerulli contends
 that a demand for medical information must be followed
 whereas an unlawful order for a psychological examination
 need not be followed. However, as explained above, the fit-
 ness for duty order was lawful and failure to comply with
 it provided the agency with a legitimate reason to suspend
 Mr. Cerulli. We therefore find this argument unpersuasive
 and conclude that the Board reasonably determined EA’s
 circumstances to be “very similar.” J.A. 28.
      Mr. Cerulli also argues that the Board failed to con-
 sider a comparator that the government did not proffer: Mr.
 Danley. According to Mr. Cerulli, Mr. Danley “made a
 threat of violence,” was investigated, and was ultimately
 only issued a letter of warning, despite prior complaints of
 bullying. Appellant’s Br. 56. In contrast, Mr. Cerulli was
 supposedly “accused of similar misconduct” but was given
 a fitness for duty order and suspended without any inves-
 tigation. Id. at 56-57. We disagree that Mr. Cerulli and
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 CERULLI v. DEFENSE                                         13



 Mr. Danley are similarly situated. As an initial matter, we
 note that the nature of the “misconduct” differs. Mr. Dan-
 ley was accused of a verbal threat, which management de-
 termined to be an “avoidable” incident of “perception and
 misunderstanding rather than an attempt . . . to intimi-
 date an insubordinate” after investigation. J.A. 430. While
 expressing disappointment over his poor interpersonal
 skills as a manager, Mr. Danley’s supervisors did not ex-
 press any concerns over his mental or emotional stability
 or ability to perform the essential functions of his position.
 Mr. Cerulli, on the other hand, acknowledged that he had
 armed himself with a knife, and his supervisors perceived
 increasing levels of emotional distress and hypervigilance
 that cast doubt on his ability to perform the essential func-
 tions of his position. We therefore find that the Board rea-
 sonably excluded Mr. Danley as an appropriate
 comparator.
     Based on the record, substantial evidence supports the
 Board’s decision that the agency properly established by
 clear and convincing evidence that it would have taken the
 same personnel actions even absent Mr. Cerulli’s protected
 disclosure.
                  II. Protected Disclosures
     It is undisputed that Mr. Cerulli’s December 30, 2016,
 email constitutes a protected disclosure under the WPA
 and that it was a contributing factor to the agency’s fitness
 for duty order and suspension decision. However, Mr. Ce-
 rulli argues that the Board erred by not finding that he
 made additional protected disclosures during various
 meetings with supervisors between December 30, 2016,
 and January 10, 2017, because these conversations all had
 the same “content and tone” as the December 30 email. Ap-
 pellant’s Br. 38. Mr. Cerulli further argues that this error
 is not harmless because these additional disclosures pre-
 clude the government from establishing independent
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 14                                        CERULLI   v. DEFENSE



 causation for its personnel actions. 6 Mr. Cerulli alleges
 that “nearly every justification DLA has for its fitness for
 duty order relies on [his] repeated protected disclosures,”
 and thus, the agency’s reasons for issuing the fitness for
 duty order are “inextricably linked” to his repeated pro-
 tected disclosures. Appellant’s Reply Br. 3-4. We disagree
 and find that any failure by the Board to find additional
 disclosures was harmless.
     The agency did not rely on the content or repeated na-
 ture of Mr. Cerulli’s disclosures to justify its personnel ac-
 tions. While the fitness for duty order references Mr.
 Cerulli’s meetings with supervisors during the relevant pe-
 riod, it also cites concern for his mental and emotional
 health based on his conduct during that period. See supra,
 § I.A. The Board also cited “compelling and credible testi-
 mony” from Mr. Cerulli’s supervisors regarding concern for
 his mental wellbeing. J.A. 23-25. Given the order’s discus-
 sion of Mr. Cerulli’s conduct and perceived emotional state,
 the Board correctly found that the agency relied on reasons
 other than the content of Mr. Cerulli’s December 30 email
 in justifying the fitness for duty order. Likewise, the
 agency did not rely on that same content 7 when later dis-
 closed in Mr. Cerulli’s conversations with supervisors be-
 tween December 30, 2016, and January 10, 2017.
     To the extent Mr. Cerulli argues that his conduct can-
 not be separated from the content of his disclosures, we dis-
 agree. The WPA does not require “that the adverse action


      6  Mr. Cerulli also argues that his repeated disclo-
 sures “were a threat to his supervisors that increased their
 motive to retaliate against him.” Appellant’s Reply Br. 3-
 4. For the reasons discussed supra (§ I.B.), we find this
 argument unpersuasive.
     7   Both parties agree that these conversations all had
 the same content as the December 30 email. Appellant’s
 Br. 38, Appellee’s Br. 17-18.
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 CERULLI v. DEFENSE                                        15



 be based on facts completely separate and distinct from
 protected whistleblowing disclosures.” Watson v. Dep’t of
 Justice, 64 F.3d 1524, 1528 (Fed. Cir. 1995) (internal quo-
 tations omitted). Nor does the act shield an employee’s con-
 duct from agency action merely by virtue of having made a
 protected disclosure. See id.; Greenspan v. Dep’t of Veter-
 ans Affairs, 464 F.3d 1297, 1305 (Fed. Cir. 2006). Moreo-
 ver, we have expressly rejected the argument that “the
 character or nature of [a protected] disclosure can never
 supply support for any disciplinary action.” Kalil v. De-
 partment of Agriculture, 479 F.3d 821, 825 (Fed. Cir. 2007);
 see also Duggan v. Department of Defense, 883 F.3d 842,
 846-47 (9th Cir. 2018). 8
                       III. Credibility
     Finally, Mr. Cerulli argues that the Board erred in
 evaluating his credibility. In particular, Mr. Cerulli takes
 issue with a footnote 9 in the Board’s decision finding his
 testimony “less than credible” because he “had a tendency
 to exaggerate when describing events involving others”
 while “downplay[ing] his own conduct that might be


     8    Greenspan, cited by Mr. Cerulli, is consistent with
 these principles. There, we found in favor of an employee
 who had been disciplined for bluntly criticizing manage-
 ment. We concluded that the protections of the WPA are
 not removed simply because protected subject matter is
 conveyed in a “blunt and arrogant manner.” 464 F.3d at
 1304-305. However, we declined to consider whether the
 employee’s behavior went beyond blunt to become “disrup-
 tive” or “disrespectful” because the agency had not relied
 on such a ground at the time of discipline. Id. at 1305.
     9    The footnote references two specific examples of
 such behavior, including an instance in which Mr. Cerulli
 testified that Mr. Danley had made “many, many, many
 death threats,” but when asked, could not name a specific
 threat aside from the events at issue. J.A. 5.
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 16                                       CERULLI   v. DEFENSE



 problematic.” J.A. 5. While Mr. Cerulli contends that the
 Board ignored countervailing evidence of his credibility,
 he nonetheless acknowledges that the Board often “be-
 lieved and accepted [his] version of events over [the
 agency’s].” Appellant’s Br. 35.
    “As an appellate court, we are not in a position to re-
 evaluate these credibility determinations, which are not in-
 herently improbable or discredited by undisputed fact.”
 Pope v. U.S. Postal Service, 114 F.3d 1144, 1149 (Fed. Cir.
 1997). The Board’s analysis reflects a careful weighing of
 the facts as presented with the credibility of the testifying
 witness, and as a result, its credibility determinations are
 not wholly dismissive of one party or another. Accordingly,
 we decline to disturb the Board’s credibility determina-
 tions.
                        CONCLUSION
     We have considered Mr. Cerulli’s remaining arguments
 and find them unpersuasive. For the foregoing reasons,
 the decision of the Board is affirmed.
                        AFFIRMED
                            COSTS
      No Costs.
