                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     REGINA G. DAVIS, PH.D,                          DOCKET NUMBERS
                   Appellant,                        DA-1221-12-0640-W-6
                                                     PH-315H-12-0551-I-3
                  v.

     DEPARTMENT OF THE ARMY,
                 Agency.                             DATE: January 6, 2017



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Regina G. Davis, Ph.D., San Antonio, Texas, pro se.

           Randy Ramirez, Esquire, Joint Base San Antonio, Fort Sam Houston,
             Texas, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed separate petitions for review of the initial decision
     in these two joined appeals, which denied her request for corrective action in her
     individual right of action (IRA) appeal and dismissed her probationary
     termination appeal for lack of jurisdiction. Generally, we grant petitions such as


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     this one only when: the initial decision contains e rroneous findings of material
     fact; the initial decision is based on an erroneous interpretation of statute 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 a ppeal 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 petitione r’s due
     diligence, was not available when the record closed.        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 petitions for review.
     Therefore, we DENY the petitions for review and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

                                      BACKGROUND
¶2         After serving as a contract psychologist employed by Humana/Veritas
     Healthcare in the agency’s Warrior Resiliency Program (WRP) at the Brooke
     Army Medical Center (BAMC) for just over 8 months, the appellant began a
     2-year term appointment in the competitive service in the WRP as a Clinical
     Research Psychologist, GS-13, effective September 27, 2010. MSPB Docket No.
     DA-1221-12-0640-W-5, Appeal File (W-5 AF), Tab 29 at 6, Tab 32 at 1; MSPB
     Docket No. PH-315H-12-0551-I-1, Initial Appeal File (IAF), Tab 1 at 5.           The
     appointment was subject to a 1-year trial period. W-5 AF, Tab 29 at 6.
¶3         Before the appellant’s September 27, 2010 appointment, the agency began
     an Army Regulation (AR) 15-6 investigation into allegations both by and against
     the appellant arising from her contract employment. IAF, Tab 18 at 6‑14. The
     agency completed the investigation after her appointment ended with a
     November 16, 2010 report. Id.
                                                                                      3

¶4        According to the report, on February 9, 2011, the appellant allegedly raised
     her voice to staff in charge of videoconferencing equipment after a staff member
     inadvertently connected her to the wrong location, and she therefore was not able
     to converse with a patient.    E.g., MSPB Docket No. DA-1221-12-0640-W-1,
     Appeal File (W-1 AF), Tab 9 at 356, 415-17, 425-30, 435‑37. Later that same
     month, the agency initiated a second AR 15-6 investigation into claims the
     appellant raised of a hostile work environment. Id. at 362, 364‑65, 371-75. In a
     March 2011 report, the investigating officer concluded that the allegations were
     “not substantiated.” Id. at 371. In April 2011, the appellant refused to attend a
     meeting to discuss these findings and her request for a transfer. W-5 AF, Tab 29
     at 30-31, 38.   On May 5, 2011, the agency issued the appellant notice that it
     would terminate her appointment effective May 11, 2011, based on her failure to
     attend the April 2011 meeting as instructed. Id. at 30-31.
¶5        The appellant filed an appeal, which the Board docketed as two separate
     actions, Davis v. Department of the Army, MSPB Docket No. PH-315H-12-0551‑
     I-1, concerning her probationary termination, and Davis v. Department of the
     Army, MSPB Docket No. DA-1221-12-0640-W-1, an IRA appeal in which the
     appellant contended that the agency terminated her in reprisal for protected
     whistleblowing activity.    IAF, Tab 1; W-1 AF, Tab 1.          Following several
     dismissals without prejudice and the subsequent refiling of each appeal consistent
     with the terms of those dismissals, an administrative judge joined the appeals and
     granted the appellant’s motion to transfer the joined appeals to the Board’s Dallas
     Regional Office for hearing. W-5 AF, Tabs 2-5, 17-18.
¶6        The Chief Administrative Judge in Dallas gave the appellant notice of the
     elements and burdens necessary for her to establish jurisdiction over and prove
     the merits of her probationary termination and IRA appeals, reassigned the
     appeals to another administrative judge in that office, and scheduled a hearing.
     W-5 AF, Tabs 38, 42-43, 45.
                                                                                        4

¶7        Following a 3-day hearing, the administrative judge issued an initial
     decision.   W-5 AF, Tabs 51, 59; MSPB Docket No. DA-1221-12-0640-W-6,
     Appeal File (W-6 AF), Tabs 1-3, 7. She found that the Board lacks jurisdiction
     over the appellant’s probationary termination. W-6 AF, Tab 11, Initial Decision
     (ID) at 3‑8. The administrative judge determined that the appellant was not an
     “employee” with Board appeal rights under chapter 75 of title 5 because she was
     serving a probationary period and did not have 1 year of current continuous
     service when the agency terminated her. ID at 4; 5 U.S.C. § 7511(a)(1)(A). She
     rejected the appellant’s contention that the time she served as a contract employee
     for Humana/Veritas should be tacked onto the time she served in her term
     position to meet the statutory 1-year current continuous service requirement. ID
     at 4-5; W-5 AF, Tab 32 at 6.
¶8        The    appellant   argued   that   the   agency   terminated   her   based   on
     preappointment reasons and subsequently failed to provide her with the
     procedures set forth in 5 C.F.R. § 315.805, contending that her termination arose
     out of the first AR 15-6 investigation, which terminated in November 2010, and
     concerned allegations that she engaged in misconduct while still a contractor. ID
     at 5-6; W-5 AF, Tab 32 at 7.        The administrative judge found otherwise,
     distinguishing the instant appeal from cases where an agency specifically alleges
     an instance of preappointment conduct in the termination notice as a basis for its
     action, and determining that the deciding official sought to remove the appellant
     for her “blatant disregard for authority and failure to follow directions” and not
     for the misconduct referred to in the agency’s AR 15-6 investigations which, by
     contrast, involved the appellant’s alleged confrontational and aggressive behavior
     towards her colleagues, not her supervisors. ID at 6-8. The administrative judge
     also found that because those investigations were not concluded prior to the
     appellant’s appointment, any consequences that flowed from them could not have
     occurred until after her appointment.     ID at 8 n.7.   Hence, the administrative
                                                                                           5

      judge found that the appellant failed to establish jurisdiction over her
      probationary termination appeal.
¶9             In addition, the administrative judge set forth a comprehensive, detailed
      analysis of the appellant’s whistleblowing claims, pursuant to which she found
      that the appellant had established jurisdiction and a prima facie case of
      whistleblowing reprisal. ID at 9-22. She determined that the appellant made two
      protected disclosures, the first one on October 21, 2010, when she alleged that
      without conducting an evaluation, another psychologist changed her diagnosis of
      a patient so that the patient could attend recruiter school, and the second on
      February 2, 2011, in which she alleged that an agency psychiatrist had
      fraudulently changed a Medical Evaluation Board report regarding an individual
      soldier to reflect a diagnosis of Post-Traumatic Stress Disorder so that he could
      quality for Government benefits. ID at 11-21. The administrative judge, though,
      found that a third alleged April disclosure to the commanding officer of the
      BAMC in April 2011 that agency officials had allegedly abused their authority
      when they allowed fellows in the WRP to provide anonymous written reviews of
      her work was not a protected disclosure because everyone that provided training
      to the WRP fellows was subject to the same review process, not just the appellant.
      ID at 21.       Concerning the appellant’s two disclosures that the administrative
      judge found were protected, she further found that the appellant had established
      exhaustion of her administrative remedies before the Office of Special Counsel
      (OSC), and determined that those disclosures could have been a contributing
      factor     in   the   appellant’s   probationary   termination   by   virtue   of   the
      knowledge/timing test. ID at 22-24.
¶10            The administrative judge also determined that, notwithstanding the
      appellant’s prima facie case of whistleblower reprisal , the agency established by
      clear and convincing evidence that it would have terminated the appellant for
      failing to follow orders to attend the April 2011 meeting even in the absence of
                                                                                          6

      her protected whistleblowing activity. ID at 24-37. Therefore, the administrative
      judge denied the appellant’s request for corrective action. ID at 36-37.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶11        The appellant timely filed separate petitions for review in her probationary
      termination and IRA appeals, the agency filed a single response to the appellant’s
      petitions for review, and the appellant filed a reply to the agency’s response.
      Petition for Review (PFR) File, Tabs 5-6, 8-9. 2 The agency filed an additional
      pleading, which the Clerk of the Board rejected because the Board’s rules do not
      provide for any pleadings other than a petition for review, a cross petition for
      review, a response to the petition for review or cross petition for review, and a
      reply to a response. PFR File, Tab 10; 5 C.F.R. § 1201.114(a)(5). As instructed
      by the Clerk of the Board, the agency moved for leave to file the supplemental
      pleading, which it claimed was necessary to address the factual and legal issues
      raised by the appellant for the first time in her reply to the agency’s response to
      her petition for review. PFR File, Tab 11 at 4-5. The agency also moved for the
      Board to reject the appellant’s reply to its response to her petition for review
      because her initial and supplemental version of that document are approximatel y
      200 words over the Board’s word limit for a reply and the appellant failed to
      request leave to submit such a noncompliant pleading, which the agency contends
      the Board erroneously accepted. Id. at 6-8.

      2
        The agency challenges the timeliness of the appellant’s petitions for review. PFR
      File, Tab 8 at 8-10. The Clerk of the Board explained that the appellant filed by
      e-Appeal two petitions for review in MSPB Docket No. DA-1221-12-0640-W-6 but then
      filed a petition for review in MSPB Docket No. PH-315H-12-0551-I-3, clarifying that
      she mistakenly filed this petition for review in MSPB Docket No. DA-1221-12-0640-
      W-6 and was therefore refiling it under the appropriate docket number . PFR File,
      Tab 7. Though the appellant’s petitions were date and time stamped with Eastern Time,
      the Clerk of the Board considered both of the appellant’s petitions for review to have
      been timely filed because the appellant filed them by e-Appeal from the Central Time
      Zone, and the timeliness of a pleading is assessed based on the time zone from which
      the pleading is filed. PFR File, Tab 7; see 5 C.F.R. § 1201.14(m)(1). The agency
      identifies no reason on review for us to revisit that determination.
                                                                                      7

¶12        Addressing the agency’s motion, to the extent that the appellant has raised
      new issues on review, either in her petition or in her reply to the agency’s
      response, the Board generally will not consider them absent a showing that they
      are based on new and material evidence not previously available despite her due
      diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). In
      her reply to the agency’s response, the appellant does not identify any new
      evidence, and to the extent that she raises new issues therein, we therefore
      have not considered them. As for the length of the appellant’s reply, although it
      may be slightly over the word limit for a reply to a response in a single appeal,
      because it addresses two joined appeals, we exercise our discretion to waive the
      length limitation.   In light of these rulings, we deny the agency’s motion to
      submit a supplemental pleading.
      The administrative judge correctly found that the appellant failed to establish
      jurisdiction over her probationary termination appeal.
¶13        Regarding her probationary termination, the appellant essentially reiterates
      the arguments she set forth below. She claims that the administrative judge erred
      in refusing to consider certain evidence that allegedly would establish that the
      agency, rather than Humana/Veritas, hired her in January 2010, such that she had
      more than 1 year of current continuous service when the agency terminated her
      employment in May 2011. PFR File, Tab 6 at 6-7. She asserts that she is an
      employee under common law doctrine and cites an Equal Employment
      Opportunity Commission case in support of her assertion.       Id. at 7-8 (citing
      Carranza v. Department of the Army, EEOC Appeal No. 0120092727, 2010 WL
      2029126 (May 11, 2010)). We disagree.

            The appellant was not an “employee” with appeal rights under 5 U.S.C.
            chapter 75.
¶14        To qualify as an “employee” with appeal rights under 5 U.S.C. chapter 75,
      an individual in the competitive service, like the appellant, must show that she
      either is not serving a probationary period or has completed 1 year of current
                                                                                       8

      continuous service under an appointment other than a temporary one limited to a
      year or less.   5 U.S.C. § 7511(a)(1)(A); see McCormick v. Department of the
      Air Force, 307 F.3d 1339, 1341-43 (Fed. Cir. 2002); Baggan v. Department of
      State, 109 M.S.P.R. 572, ¶ 5 (2008).      “Current continuous service” means a
      period of employment or service immediately preceding an adverse action without
      a break in Federal civilian employment of a workday. Ellefson v. Department of
      the Army, 98 M.S.P.R. 191, ¶ 14 (2005).
¶15        The administrative judge correctly determined that the appellant failed to
      establish that she was an employee with Board appeal rights because the record
      reflects that she was serving in a probationary period at the time of her
      termination and she did not have 1 year of current continuous service. ID at 3-5.
      As a contractor, the appellant was not appointed as a member of the competitive
      or excepted service within the meaning of section 7511(a)(1) and, therefore, her
      tenure as a contractor before her civil service appointment is not deemed
      creditable for purposes of establishing jurisdiction.   ID at 4; Johnson v. Merit
      Systems Protection Board, 495 F. App’x 68, 71 (Fed. Cir. 2012) (finding that
      employment as a contractor cannot be tacked onto Federal service); 5 C.F.R.
      § 315.802(b) (limiting service that counts toward completing probation to “[p]rior
      Federal civilian service”).    Consequently, we agree with the administrative
      judge’s conclusion that the appellant does not qualify as an “employee” pursuant
      to 5 U.S.C. § 7511. ID at 5.

            The agency did not remove the appellant for preappointment reasons.
¶16        A probationary employee in the competitive service has a regulatory rig ht
      of appeal to the Board if she makes a nonfrivolous allegation that she was
      terminated due to discrimination based on marital status or for partisan political
      reasons, or because of conditions arising before appointment to the position in
      question.   Harris v. Department of the Navy, 99 M.S.P.R. 355, ¶ 6 (2005);
      5 C.F.R. §§ 315.805-806. Here, the appellant alleged that she was terminated for
      preappointment reasons. IAF, Tab 7 at 4-6.
                                                                                            9

¶17        The administrative judge properly found that the agency did not terminate
      the appellant for preappointment reasons. ID at 5-8. As the administrative judge
      explained in her initial decision, a termination is based on a preappointment
      reason when the notice lists a specific example of a preappointment incident and
      it relates to the stated reason for the terminatio n. ID at 7. Although the Board
      recently found in LeMaster v. Department of Veterans Affairs, 123 M.S.P.R. 453,
      ¶ 8 (2016), that an individual is entitled to the procedural requirements set forth
      in 5 C.F.R. § 315.805 when her termination in based in part on preappointment
      reasons, that case is distinguishable from the instant matter.          The agency’s
      termination notice relied on the appellant’s preappointment probation agreement
      and his failure to disclose that the agreement prevented him from performing his
      job duties. LeMaster, 123 M.S.P.R. 453, ¶¶ 8, 10 (2010).
¶18        By contrast,    the    appellant’s   termination    here   was    based   on   her
      postappointment failure to attend a meeting in April 2011, as instructed. W-1 AF,
      Tab 9 at 30-31. Although the termination letter also referred to the findings of
      both the November 2010 and March 2011 AR 15-6 investigations that she
      “engage[d]   in   conduct   with   co-workers    which    has   been    described    as
      confrontational and aggressive,” we agree with the administrative judge that this
      information was not the stated basis for the termination.         Id. at 31; ID at 8.
      Rather, it was mentioned merely as background information that the deciding
      official “also considered.” W-1 AF, Tab 9 at 31.
¶19        On review, the appellant reiterates her claim that the agency terminated her
      for preappointment reasons, requiring the agency to afford her the procedural
      requirements set forth in 5 C.F.R. § 315.805. PFR File, Tab 6 at 8‑10. Although
      the appellant fails to differentiate between the different investigations in her
      petition for review, we note that the first AR 15-6 investigation was the only one
      that involved the time predating the appellant’s September 27, 2010 appointment
      and it did not concern the misconduct cited in her termination notice, i.e., her
      alleged “confrontational, aggressive, intimidating, and hostile” con duct toward
                                                                                            10

      her coworkers. Compare W-5 AF, Tab 29 at 8, with IAF, Tab 18 at 6-14, 19. By
      contrast,   the   second   AR 15-6    investigation    began    after   the   appellant’s
      September 2010 appointment and almost exclusively concerned events occurring
      during her civil service tenure.     IAF, Tab 16 at 3, 9-12.      Although the report
      indicates that the agency undertook the second AR 15-6 investigation in response
      to the appellant’s claims of a hostile work environment, which date from before
      her civil service appointment, the investigator was unable to corroborate any of
      the appellant’s accusations and instead reported that the appellant’s colleagues , in
      response to his investigative inquiries, universally described the appellant in
      terms similar to if not exactly as set forth in her termination notice, cited above.
      Id. at 9-12. Because the only references to inappropriate conduct by the appellant
      are in the agency’s report regarding the second AR 15-6 investigation, the record
      reflects that the agency terminated the appellant for postappointment reasons.
¶20         Accordingly, we find that the administrative judge correctly found that the
      appellant was not entitled to the procedures set forth in 5 C.F.R. § 315.805 upon
      her probationary termination. 3

            The administrative judge did not abuse her considerable discretion in
            ruling on witnesses and evidence.
¶21         The appellant alleges that the administrative judge who held the hearing
      failed to consider evidence submitted before the Chief Administrative Judge
      transferred the case to her, and further argues that the administrative judge
      rejected more than half of her requested witnesses, denying her the ability to fully
      develop the merits of her appeal. PFR File, Tab 6 at 10-11. Lastly, the appellant
      argues the administrative judge failed to make a proper evidentiary record
      regarding evidence she excluded from the hearing. Id. at 12.



      3
        To the extent that the appellant is attempting to raise a due process arg ument for the
      first time on review, we find that we are without jurisdiction to consider this claim.
      PFR File, Tab 5 at 14; Burnett v. U.S. Postal Service, 104 M.S.P.R. 308, ¶ 15 (2006).
                                                                                          11

¶22         An administrative judge has broad discretion to regulate the course of the
      hearing and to exclude evidence and witnesses that have not been shown to be
      relevant, material, and nonrepetitious.       E.g., Thomas v. U.S. Postal Service,
      116 M.S.P.R. 453, ¶ 4 (2011); Franco v. U.S. Postal Service, 27 M.S.P.R. 322,
      325 (1985); 5 C.F.R. § 1201.41(b)(8), (10).        To obtain reversal of an initial
      decision on these grounds, the petitioning party must show on review that a
      relevant witness or evidence, which could have affected the outcome, was
      disallowed.     See Thomas, 116 M.S.P.R. 453, ¶ 4.        Our review of the record
      indicates that the Chief Administrative Judge explained the reasons why she
      denied each witness, W-5 AF, Tab 44, and the appellant fails to make the required
      showing on review of how any of those witnesses would have affected the
      outcome. Thus, we find that the appellant failed to show that the administrative
      judge abused her discretion in this regard.
¶23         Similarly, the appellant fails to show how a particular exhibit the
      administrative judge disallowed, W-5 AF, Tab 55, would have affected the
      outcome.      Moreover, we note that, contrary to the appellant’s contention on
      review, the administrative judge described the exhibit (which involved audio
      recordings the appellant surreptitiously made and video of the agency’s location),
      in a prehearing conference summary and in a subsequent order.                W-5 AF,
      Tabs 38, 50. Because the evidence does not show that the appellant received an
      appointment to a civil service position prior to September 27, 2010, it is not
      relevant to her probationary termination appeal. Based on our review, we find
      that the appellant failed to establish that the administrative judge err ed in
      excluding this evidence 4 or in her ultimate finding that the appellant failed to
      establish jurisdiction over her probationary termination appeal.



      4
       To the extent that the appellant makes the same argument in the petition for review of
      her IRA appeal, PFR File, Tab 5 at 8, we similarly find that she fails to show that the
      administrative judge abused her considerable discretion in dis allowing the exhibit.
                                                                                        12

      The administrative judge properly denied corrective action as to the appellant’s
      claim of whistleblower reprisal.
¶24         The Board has jurisdiction over an IRA appeal if the appellant has
      exhausted her administrative remedies before OSC and makes nonfrivolous
      allegations that:   (1) she engaged in whistleblowing activity by making a
      protected disclosure; and (2) the disclosure was a contributing factor in the
      agency’s decision to take or fail to take a personnel action. Yunus v. Department
      of Veterans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). In an IRA appeal, the
      standard for establishing subject matter jurisdiction and the right to a hearing is
      the assertion of a nonfrivolous claim, while the standard for establishing a prima
      facie case is that of preponderant evidence.         Langer v. Department of the
      Treasury, 265 F.3d 1259, 1265 (Fed. Cir. 2001). When an appellant meets her
      burden to establish a prima facie case of reprisal for whistleblowing, the burden
      shifts to the agency to prove by clear and convincing evidence that it would have
      taken the same personnel        action(s) in the absence of the appellant’s
      whistleblowing.     Scoggins v. Department of the Army, 123 M.S.P.R. 592,
      ¶ 26 (2016).
¶25         The appellant argues that the administrative judge erred in finding that the
      agency terminated her for the misconduct cited in the AR 15-6 investigations,
      which she contends the agency based on fabricated documents and then concealed
      the results. 5 She also reasserts her claim that the agency actually terminated her
      employment in reprisal for her protected disclosures.      PFR File, Tab 5 at 6-8.
      However, as discussed above, the administrative judge properly found that the
      basis of the appellant’s termination was her failure to follow instructions to attend
      an April 2011 meeting regarding the results of the second AR 15-6 investigation.
      ID at 6; W-5 AF, Tab 29 at 7-8. As previously stated, although the termination
      notice mentions the AR 15-6 investigations, it does not cite them as a reason for

      5
        Nevertheless, the appellant concedes on review that the agency produced the
      investigative documents as part of the record in these appeals. PFR File, Tab 5 at 7.
                                                                                       13

      the appellant’s termination but instead mentions them only in the context of
      additional factual background information that the deciding official considered.
      W-5 AF, Tab 29 at 7-8.
¶26        The appellant also contends that the agency terminated her only after she
      requested a transfer, and not because she failed to attend the AR 15-6
      investigation meeting. PFR File, Tab 5 at 8-9. However, the appellant not only
      fails to explain why agency officials would seek to terminate her because she
      wanted a transfer, it would seem illogical that this was the real basis for the
      termination, given that the termination notice indicates that the appellant ’s
      request for a transfer was on the agenda for the meeting that she refused to attend.
      W-5 AF, Tab 29 at 7‑8. The appellant offers no support for her assertion nor
      does she identify any authority that would bring such a claim under the Board’s
      jurisdiction and, even if she were to identify such authority, the record does not
      reflect that she raised this specific issue with OSC in her complaint to exhaust her
      administrative remedies there. IAF, Tab 1 at 20-21; see Ellison v. Merit Systems
      Protection Board, 7 F.3d 1031, 1036 (Fed. Cir. 1993) (finding that the test of the
      sufficiency of an individual’s charges of whistleblowing to OSC is the statement
      that she makes in the complaint requesting corrective action, not her post hoc
      characterization of those statements).
¶27        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: the strength of the
      agency’s evidence in support of its action; the existence and strength of any
      motive to retaliate on the part of the agency officials who were involved in the
      decision; and any evidence that the agency takes similar actions against
      employees who are not whistleblowers but who are otherwise similarly situated.
      Carr v. Social Security Administrative, 185 F.3d 1318, 1323 (Fed. Cir. 1999).
      The Board does not view these factors as discrete elements, each of which the
      agency must prove by clear and convincing evidence, but rather weighs these
                                                                                     14

      factors together to determine whether the evidence is clear and convincing as a
      whole. Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 14 (2015). The
      Board must consider all the evidence, including evidence that detracts from the
      conclusion that the agency met its burden. Whitmore v. Department of Labor,
      680 F.3d 1353, 1368 (Fed. Cir. 2012).
¶28        Regarding the strength of the agency’s evidence in support of its action,
      including the testimony provided at the hearing, the record reflects that the
      appellant engaged in repeated insubordination, failing to follow orders from
      senior leadership to attend meetings called to discuss the results of the second
      AR 15-6 investigation.    ID at 5-6; W-5 AF, Tab 29 at 7-8.      The agency has,
      therefore, presented strong evidence in support of the appellant’s termination .
      See Miller v. Department of Justice, No. 2015-3149, 2016 WL 7030359 (Fed. Cir.
      Dec. 2, 2016) (referring to the agency’s burden as a showing of “independent
      causation”).    As recounted by the administrative judge, we agree that the
      appellant’s defiant refusal to obey orders from senior agency leadership,
      especially considering her probationary status, is overwhelming evidence that the
      agency certainly would have terminated her during her probationary period in the
      absence of her protected whistleblowing activity. ID at 25-26.
¶29        As for the second Carr factor, the strength of any motive to retaliate on the
      part of the agency officials who were involved in the decision, the administrative
      judge gave serious consideration to the appellant’s overarching claim that the
      agency engaged in a pattern of retaliatory conduct against her , analyzing each of
      the exchanges which the appellant claimed illustrated her point. ID at 27-36. We
      agree with the administrative judge that the appellant’s allegations involving
      events that occurred before her protected whistleblowing activity provide little
      evidence of whether the agency terminated her in reprisal for those subsequent
      disclosures.   ID at 27-30.   This includes the appellant’s allegations on review
      regarding her claims of sexual harassment against an agency commander and of
      physical assault against that commander’s wife, both of which allegedly occurred
                                                                                         15

      before the appellant’s appointment to the civil service in September 2010. PFR
      File, Tab 5 at 6. We also agree that the interactions identified by the appellant
      with her immediate supervisor, rather than reflecting the hostility that the
      appellant alleged existed between her and her supervisor, instead show that the
      appellant’s supervisor exercised extraordinary patience in the face of the
      appellant’s steadily increasing level of hostility and disrespect. ID at 30-32. Nor
      is there any support in the record for the appellant’s claim that the agency
      fabricated the results of its investigation of the February 2011 incident in which
      the appellant allegedly raised her voice to staff involved in setting up a video link
      for her use, or for her assertion that her supervisor’s directive for all employees to
      meet with their supervisors was somehow retaliatory toward her. ID at 33-35.
¶30         The administrative judge recognized that the appellant’s numerous
      complaints against management, which she raised “to the highest levels of agency
      authority,” could have fostered a motive for agency off icials to retaliate against
      her. ID at 35. Nevertheless, the administrative judge found only weak evidence
      of any motive to retaliate against the appellant. To that end, the administrative
      judge found that the appellant’s supervisor credibly testified at the hearing that he
      was unaware of the appellant’s higher‑level complaints until after he decided to
      terminate her probationary appointment. The administrative judge also noted that
      the supervisor credibly testified that he would have removed any other employee
      for disobeying a direct order to report for a meeting with their senior supervisory
      officials.   ID at 35-36.   The Board must defer to an administrative judge’s
      credibility determinations when they are based, explicitly or implicitly, on
      observing the demeanor of witnesses testifying at a hearing; the Board 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 appellant offers no sufficiently sound reasons for us to upset the
      administrative judge’s credibility determinations.
                                                                                        16

¶31         As for the third Carr factor, any evidence that the agency takes similar
      actions against employees who are not whistleblowers but who are otherwise
      similarly situated, the administrative judge found that the agency’s otherwise
      strong evidence regarding the other Carr factors is not undermined by a lack of
      evidence concerning the treatment of other employees . Carr, 185 F.3d at 1323.
      Although our reviewing court has long held that “Carr does not impose an
      affirmative burden on the agency to produce evidence with respect to each and
      every one of the three Carr factors to weigh them each individually in the
      agency’s favor,” and that “the absence of any evidence relating to Carr factor
      three can effectively remove that factor from the analysis,” it also has recently
      observed that “the Government’s failure to produce evidence on this factor ‘may
      be at the agency’s peril,’ considering the Government’ s advantage in accessing
      this type of evidence.” Miller, 2016 WL 7030359, at *3, *8 (quoting Whitmore,
      680 F.3d at 1374).
¶32         The appellant identified two individuals, one of them her supervisor, who
      she alleged failed to appear in conjunction with the first of the two AR 15-6
      investigations involved here, and she claimed that they suffered no repercussions
      for their failure to do so. ID at 26-27. The administrative judge distinguished
      these individuals’ behavior because, unlike the meeting the appellant refused to
      attend, here the record did not reflect that those individuals’ sixth-line supervisor
      (and a commanding General) had directly ordered them to attend the meeting and
      that their supervisors telephoned them during the meeting to again demand their
      attendance, thereby supporting the agency’s three witnesses’ testimony that the
      appellant’s refusal amounted to an “extremely serious” act of misconduct . ID
      at 25‑26; W-5 AF, Hearing Compact Disc.           Further, the earlier meeting the
      appellant refused to attend was called by the investigator as part of his inquiry,
      while the second meeting the appellant refused to attend was called by senior
      leadership to discuss the results of an investigation, thus aggravating the nature of
      her adamant refusal to attend.     ID at 26-27.   Thus, the appellant’s assertions
                                                                                      17

      do not support an analogy to her situation. Moreover, unlike the situation the
      U.S. Court of Appeals for the Federal Circuit analyzed in Miller, 2016 WL
      7030359, at *8, the agency’s evidence on the first and second Carr factors here is
      strong and, in our estimation, more than makes up for any dearth of evidence on
      the third Carr factor.
¶33         Accordingly, we agree with the administrative judge’s extensive and
      thorough analysis, in which she found that the agency established by clear and
      convincing evidence that it would have terminated the appellant during her
      probationary period in the absence of her protected whistleblowing a ctivity and
      so she therefore was not entitled to corrective action.

                      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),
      (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
                                                                                 18

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 f rom 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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
