               NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                 is not citable as precedent. It is a public record.

  United States Court of Appeals for the Federal Circuit
                                     05-3314

                             NANDINEE K. KUTTY,

                                                       Petitioner,

                                        v.

          DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,

                                                       Respondent.

                        ___________________________

                        DECIDED: January 12, 2006
                        ___________________________

Before LOURIE, RADER, and LINN, Circuit Judges.

PER CURIAM.

       The Merit Systems Protection Board (Board) denied Nandinee K. Kutty’s

request for corrective action following her termination as a probationary

employee. Ms. Kutty alleges that her termination was a response to “protected

disclosures” that she had made to Housing and Urban Development’s (HUD)

procurement counsel “related to violations of laws, rules or regulations and abuse

of authority” by her supervisors. To the contrary, HUD terminated Ms. Kutty for

specific instances of disrespectful conduct toward her supervisor, and egregious

conduct toward a co-worker. Because the record supports the Board’s decision,

this court affirms.
                                 DISCUSSION

      This court must affirm a Board decision unless it is: “(1) arbitrary or

capricious, an abuse of discretion, or otherwise not in accordance with the law;

(2) obtained without procedure required by law, rule, or regulation having been

followed; or (3) unsupported by substantial evidence.”      5 U.S.C. § 7703(c)

(1996); Hayes v. Dep’t of Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).

      Ms. Kutty began serving a one-year probationary period as an economist

with the Office of Policy Development & Research, Financial Institutions and

Regulation Division, in the Office of Economic Affairs of the Department of

Housing and Urban Development (the Agency), in December 2001. She was

removed by the Agency the following September 16.         The Agency cited the

following specific incidents as reasons for her removal: disrespectful conduct to

her supervisor in an email message on September 4, 2002; disrespectful conduct

including public humiliation of her supervisor at a meeting on September 6, 2002;

and egregious behavior toward a co-worker on September 13, 2002. The record

shows, for example, that Ms. Kutty criticized her supervisor’s conduct as

unethical and as a violation of rules. She also accused him of using intimidation

and force, and of lack of competence in managing procurements. These charges

came in e-mails dated September 4.          The record also shows that in a

September 6 meeting Ms. Kutty accused her supervisor of partiality toward one

of the proposers and stated that “the composition of the panel was not

acceptable.”




05-3314                                2
         After a hearing, the Board issued a final decision that the Agency had

established by clear and convincing evidence that it would have terminated Ms.

Kutty during her probationary period in the absence of any whistleblowing. Kutty

v. Dep’t of Housing & Urban Dev., No. DC-1221-03-0210-B-1 (M.S.P.B. July 14,

2005).     The administrative judge considered the written record, as well as

testimony of the participants in the incidents. She evaluated the proper factors:

strength of the evidence, the existence and strength of any motive to retaliate for

alleged whistle-blowing action on the part of the Agency officials involved, and

evidence that the Agency takes similar actions against employees who are not

whistleblowers but who are otherwise similarly situated. See Carr v. Soc. Sec.

Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999). Because the administrative judge

correctly performed the “appropriate test for determining whether, in a given

case, an agency has carried its burden of establishing by clear and convincing

evidence that it would have taken the personnel action at issue in the absence of

the disciplined employee's protected disclosure(s),” id., this court affirms.




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