       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

             LEONARD ENGLISH, JR.,
                   Petitioner

                           v.

      SMALL BUSINESS ADMINISTRATION,
                   Respondent
             ______________________

                      2016-2119
                ______________________

   Petition for review of the Merit Systems Protection
Board in No. DE-1221-15-0090-B-1.
                ______________________

               Decided: October 28, 2016
                ______________________

   LEONARD ENGLISH, JR., Aurora, CO, pro se.

   ZACHARY JOHN SULLIVAN, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
ALLISON KIDD-MILLER.
                ______________________

     Before NEWMAN, LOURIE, and DYK, Circuit Judges.
2                                            ENGLISH   v. SBA



PER CURIAM.
    Leonard English, Jr. petitions for review of a final or-
der of the Merit Systems Protection Board (“Board”) in an
individual right of action appeal. The Board denied
English’s request for corrective action. The Board found
that English had made a protected disclosure under 5
U.S.C. § 2302(b)(8) and that the disclosure was a contrib-
uting factor in the adverse personnel actions. But the
Board concluded that the Small Business Administration
(“agency” or “SBA”) had established by clear and convinc-
ing evidence that it would have taken the same personnel
actions absent the protected disclosure. We affirm.
                       BACKGROUND
     English is a surety bond guarantee specialist with the
SBA. On April 18, 2014, English sent an email to his
first-line supervisor, Jennifer Vigil, expressing concerns
about a co-worker, including allegations that the co-
worker was abusing the time and attendance policies.
The email stated that English’s co-worker “said he knew
everything management could and couldn’t do. He said
he knew this because he was the timekeeper at the USDA
[in his prior employment]. When he started with us, he
came to work late, took extended lunches, and left early.”
J.A. 150. English’s second-level supervisor, Peter Gibbs,
was also aware of this disclosure.
    On August 15, 2014, Vigil issued English a letter of
reprimand for “Unprofessional Correspondence to your
Supervisor.” J.A. 130. The reprimand referenced a July
30, 2014, meeting and subsequent email to English that
set forth “expectations for behavior in the office.” J.A.
130. These expectations included “always be[ing] respect-
ful and professional to management, team members,
agents and contractors . . . [in] both oral and written
communication.” J.A. 130. The reprimand identified two
subsequent emails sent by English to Vigil on August 6
and 8, 2014, that were “unprofessional in both content
ENGLISH   v. SBA                                          3



and tone,” J.A. 131–32, with one including “accusations
against [Vigil], specific and implicit, [that] were unsup-
ported and not in the style of a civil discourse between
mature professionals,” J.A. 132. The letter of reprimand
did not mention the April 18, 2014, email.
    On October 24, 2014, English received an annual per-
formance appraisal from his supervisor, Vigil, that in-
cluded a rating of 3 out of 5 for overall performance and
for each of the five individual evaluation elements. This
performance appraisal was also reviewed by Gibbs. His
performance in this position was reviewed according to
five elements: (1) administrative functions; (2) application
processing; (3) bond guarantee activity; (4) customer
satisfaction; and (5) written materials. Vigil stated in the
performance appraisal that English (1) “performed admin-
istrative functions accurately . . . [with] 2 mail errors in
2014,” J.A. 115, (2) that he “processes applications with
minimal errors” but “could improve on following up on
conditions . . . and returning applications that are past
the deadline,” J.A. 116, (3) that he “[m]eets [e]xpectations
(Level 3)” regarding bond guarantee activity, J.A. 117, (4)
that he “could improve on customer service by more
professional communication with agents, team members
and management,” J.A. 118, (5) that he “could improve on
[his] communication skills . . . [and f]requently uses
unprofessional language in email and uses Reply All in
situations inappropriately,” J.A. 120, and (6) that he
“meets expectations [overall but that t]here are areas that
[English] and [Vigil] ha[d] discussed where he can focus
on improving,” J.A. 120. The performance appraisal made
no reference to the April 18, 2014, email.
    In August 2014, English filed a complaint with the Of-
fice of Special Counsel (“OSC”) alleging, inter alia, that
the letter of reprimand was in retaliation for whistleblow-
ing reflected in his April 18, 2014, email. He later
amended the complaint to add the annual performance
review. OSC investigated his complaint and determined
4                                             ENGLISH   v. SBA



that the agency had not violated 5 U.S.C. § 2302(b)(8),
which covers reprisal for whistleblowing. On November
14, 2014, OSC advised English of his right to seek correc-
tive action from the Board.
    On November 25, 2014, English brought an individual
right of action appeal to the Board, alleging that both the
letter of reprimand and the annual performance appraisal
constituted retaliation for whistleblowing. The Adminis-
trative Judge (“AJ”) dismissed for lack of jurisdiction
because English had not articulated a nonfrivolous allega-
tion that “he engaged, or was perceived to have engaged,
in whistleblowing or other [protected] activity . . . .” J.A.
59. On a petition for review, the Board remanded to the
AJ. The Board held that English’s allegations of his co-
worker’s time and attendance abuse in the April 18, 2014,
email were sufficiently specific to qualify as a protected
disclosure and to confer jurisdiction.
    On remand, the AJ concluded that English’s April 18,
2014, email constituted a protected disclosure. The AJ
also found that under 5 U.S.C. § 1221(e)(1) it would be
presumed that this protected disclosure was a contrib-
uting factor in the personnel actions at issue—the letter
of reprimand and the performance appraisal—given the
relative timing and awareness of the disclosure by Eng-
lish’s supervisors. The AJ further found that the agency
had “shown by clear and convincing evidence that it
would have taken the same actions absent the April 18,
2014 disclosure.” J.A. 31.
   On review, the Board denied the petition for review
and affirmed the remand decision by the AJ.
   English petitions for review.      We have jurisdiction
under 28 U.S.C. § 1295(a)(9).
                        DISCUSSION
    We must affirm the Board’s decision unless it is “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
ENGLISH   v. SBA                                         5



not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” 5
U.S.C. § 7703(c).
     In an individual right of action appeal for whistle-
blowing reprisal, the employee’s prima facie case requires
(1) a protected disclosure under 5 U.S.C. § 2302(b)(8) and
(2) that the disclosure was a contributing factor in the
personnel action taken against the employee. 5 U.S.C.
§ 1221(e)(1). This section specifically allows an employee
to show that the protected disclosure was a contributing
factor through circumstantial evidence that the relevant
official knew of the protected disclosure and that the
personnel action occurred within a period of time such
that a reasonable person could conclude it was a contrib-
uting factor. 5 U.S.C. § 1221(e)(1)(A)–(B). Once an em-
ployee has established a prima facie case, the Board is
required to order appropriate corrective action unless “the
agency demonstrates by clear and convincing evidence
that it would have taken the same personnel action in the
absence of such disclosure.” 5 U.S.C. § 1221(e)(2).
    In his petition for review, English challenges the
Board’s conclusion that clear and convincing evidence
showed that the agency would have taken the same
personnel action absent English’s protected disclosure. In
particular, English argues that the Board improperly
applied the second and third factors set forth in Carr v.
Social Security Administration, 185 F.3d 1318, 1323 (Fed.
Cir. 1999).
     Carr provides that the following factors are relevant
for determining whether an agency has carried its bur-
den: “[1] the strength of the agency’s evidence in support
of its personnel action; [2] the existence and strength of
any motive to retaliate 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
6                                           ENGLISH   v. SBA



who are not whistleblowers but who are otherwise simi-
larly situated.” Id. The Board then weighs these factors
together to evaluate the strength of the evidence as a
whole. McCarthy v. Int’l Boundary & Water Comm’n, 116
M.S.P.R. 594, ¶ 44 (M.S.P.B. 2011).
    Regarding the first Carr factor, substantial evidence
supports the Board’s finding that this factor weighed in
favor of the agency given the strength of the proffered
reasons for the letter of reprimand and the ratings in the
annual performance appraisal, neither of which was
based on the protected disclosure. Re-weighing conflicting
evidence is not our function. Bieber v. Dep’t of Army, 287
F.3d 1358, 1364 (Fed. Cir. 2002). The AJ found English’s
supervisors, Vigil and Gibbs, to be credible witnesses. In
particular, “Vigil[] was highly credible in her testimony
about the details of her reprimand and her performance
rating.” J.A. 32. The Board considered the emails sent on
August 6 and 8, 2014, that were the subject of the repri-
mand in the full context of their email chains, and com-
pared them to other emails offered by English, which he
claimed were similar to the August 6 and 8, 2014, emails
and for which he did not receive a reprimand. The Board
concluded that those other emails “were not as offensive
as [his] August [6] and [8], 2014 emails.” J.A. 34. The
Board also considered the ratings criteria for the five
performance elements and the evidence supporting the
rating of 3 that English received for each element and for
his overall performance. This evidence included, inter
alia, English’s change in attitude and resulting drop in
performance, rate of mail errors, lack of initiative and
independence in performing his duties, application error
rate and processing speed, including delays past the 4.5
day average deadline, delayed response time to customer
requests, and unprofessional communication with agents,
contractors, co-workers, and management. On this rec-
ord, the reasons relied on by the agency to support the
letter of reprimand and the performance appraisal were
ENGLISH   v. SBA                                         7



sufficient to justify the agency’s actions, apart from Eng-
lish’s April 18, 2014, email. Substantial evidence sup-
ports the Board’s conclusions.
     Regarding the second Carr factor, the Board found
“that the agency’s retaliatory motive was extremely slight
if it existed at all.” J.A. 35. English challenges this
conclusion because his “protected disclosure was against
the management’s preferred employee and someone that
should be an embarrassment to them.” Pet’r’s Supp. Br.
16. But the AJ credited Vigil’s testimony that “she gave
[the report of alleged time and attendance abuse] very
little thought because it was before her time at the agency
and contrary to what she had observed” and Gibbs’s
testimony that “he considered the time and attendance
concern to be a ‘non-issue.’” J.A. 35. The Board also
concluded that there was no evidence that Vigil or Gibbs
was embarrassed or inconvenienced by the disclosure.
Substantial evidence supports the Board’s conclusions.
    Regarding the third Carr factor, the Board found it to
be neutral since there was no evidence that showed either
consistent or disparate treatment for similarly situated
non-whistleblowers. The Board did not err in this respect.
     English also argues that the Board erred by not re-
quiring the AJ to perform an analysis of the seven factors
enumerated in Hillen v. Department of Army, 35 M.S.P.R.
453, 458 (M.S.P.B. 1987) to resolve credibility issues. In
his decision, the AJ cited to Hillen and referenced the
seven factors in discussing applicable law. In his analy-
sis, the AJ made explicit credibility determinations based
on the relevant Hillen factors, in particular the demeanor
of the witnesses and the consistency of their testimony
with other evidence in the record. On appeal, the Board
found no error with the AJ’s credibility determinations.
While the Hillen factors guide the Board’s resolution of
credibility determinations, they need not be applied
8                                           ENGLISH   v. SBA



formalistically. Since the AJ clearly considered and
applied the relevant factors, we find no error.
    Lastly, English challenges the Board’s conclusion that
it was not an abuse of discretion for the AJ to exclude two
witnesses from testifying. Since the AJ found that the
witnesses would not present any relevant, legally admis-
sible testimony, this was not an abuse of discretion.
                      AFFIRMED
                          COSTS

    No costs.
