                  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

                                        04-3270

                                CHRISTINE D. TOMEI,

                                                      Petitioner,

                                           v.

                           DEPARTMENT OF EDUCATION,

                                                      Respondent.

                           __________________________

                           DECIDED: November 5, 2004
                           __________________________


Before GAJARSA, Circuit Judge, PLAGER, Senior Circuit Judge, and LINN, Circuit
Judge.

PER CURIAM.

      Christine D. Tomei (“Tomei”) seeks review of the Merit Systems Protection

Board’s (“Board”) final order denying Tomei relief pursuant to the Whistleblower

Protection Act of 1989 (“Whistleblower Protection Act”), Pub. L. 101-12, 103 Stat. 16.

Tomei v. Dep’t of Educ., No. DC-1221-02-0810-W-1 (M.S.P.B. May 30, 2004) (“Order”).

Because the Board’s decision was not arbitrary, capricious, an abuse of discretion or

contrary to law, and further was supported by substantial evidence, we affirm.
                                      BACKGROUND

       Beginning February 14, 2000, the Department of Education (“agency”) employed

Tomei for a one-year probationary period as an Education Program Specialist, GS-

1720-13, in its Office of Postsecondary Education. On February 9, 2001, the agency

terminated Tomei.      The stated reasons were (1) unacceptable conduct and (2)

deliberate refusal to comply with supervisory instructions. Tomei v. Dep’t of Educ., No.

DC-1221-02-0810-W-1, slip op. at 2 (M.S.P.B. May 23, 2003) (“Opinion”).

       On September 17, 2002, Tomei filed an individual right of action appeal alleging

that the termination was in retaliation for disclosures protected under the Whistleblower

Protection Act. The Administrative Judge found that Tomei was a covered employee for

the purposes of appeal, that Tomei timely filed her appeal, and that the Board had

jurisdiction over the whistleblowing claim. Id. at 1.

       The Administrative Judge bifurcated the appeal.         The Administrative Judge

explained that “where the appellant makes non-frivolous allegations that she was

terminated in retaliation for making protected disclosures, an [Administrative Judge]

may properly hold an initial hearing limited to the question of whether the employee

would have been properly terminated absent the disclosures.” Id. at 4 (citing Dick v.

Dep’t of Veterans Affairs, 290 F.3d 1356, 1363-64 (Fed. Cir. 2002)).

       The Administrative Judge held a hearing on March 20, 2003, the focus of which

was whether the agency could prove by clear and convincing evidence that it would

have terminated Tomei absent protected disclosures.        Id. at 5.   The Administrative

Judge listed factors it would consider: “[t]he strength of the agency’s evidence in

support of its action; the existence and strength of any motive to retaliate on the part of




04-3270                                       2
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.” Id. at 7 (citing Carr v. Soc. Sec. Admin., 185 F.3d 1318,

1323 (Fed. Cir. 1999)).

       Considering both testimonial and documentary evidence, id. at 9-23, the

Administrative Judge found that the agency showed by clear and convincing evidence

that it would have terminated Tomei absent the protected disclosures, id. at 23-25. The

Administrative Judge found that much of the testimonial and documentary evidence on

behalf of the agency’s position was not directly challenged and that “the appellant’s

unacceptable conduct and deliberate refusal to comply with supervisory instructions

warranted her probationary termination.” Id. at 23.

       The Administrative Judge made credibility determinations and found the agency’s

version of Tomei’s misconduct at certain staff meetings to be more believable than

Tomei’s version. Id. at 24. The Administrative Judge also found that some of Tomei’s

emails were “inappropriate,” “lacked the necessary respect,” or “showed a lack of good

judgment.” Id. The Administrative Judge noted that Tomei was “disruptive, rude, and

intimidating, not only to her supervisor, but to other staff members, and even outside

parties.”   Id.   The Administrative Judge concluded that “[t]he strength of the

evidence . . . and the absence of any real motive to retaliate on the part of the agency

official who made the termination decision” supported his findings. Id. at 25. The Board

denied Tomei’s petition for review, and the Administrative Judge’s initial decision

became the final decision of the Board. Order at 1-2.




04-3270                                    3
      Tomei timely appealed the Board’s final decision to this court.           We have

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2000).

                                     DISCUSSION

      The scope of our review in an appeal from a Board decision is limited by statute.

We must affirm the Board’s decision unless it was: “(1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law; (2) obtained without procedures

required by law, rule, or regulation having been followed; or (3) unsupported by

substantial evidence.” 5 U.S.C. § 7703(c) (2000); Munson v. Merit Sys. Prot. Bd., 318

F.3d 1358, 1360 (Fed. Cir. 2003).

      Tomei argues that (1) the Administrative Judge erred in applying evidentiary and

other procedural rules and (2) the Administrative Judge erred in concluding that Tomei

was “wrong” in blowing the whistle. Tomei requests that we overturn the Board’s order

and asks for reinstatement of status, expungement of her record, and back pay and

benefits per U.S. Office of Personnel Management standards. Additionally, Tomei asks

that we sanction the Administrative Judge for failing to uphold the Board’s mission and

discipline the agency lawyers for removing or altering evidence.

      First, Tomei argues that the Administrative Judge erred in bifurcating the hearing

and not allowing her to present direct evidence surrounding her whistleblowing activity.

The Administrative Judge did not commit legal error.        Administrative Judges have

discretion in determining the order of presentation of the issues in cases before them,

including the bifurcation of cases under the Whistleblower Protection Act. See Dick v.

Dep’t of Veterans Affairs, 290 F.3d 1356, 1363-64 (Fed. Cir. 2002).




04-3270                                     4
      Tomei next challenges the Administrative Judge’s decisions to allow and exclude

certain witnesses. “A determination to allow or exclude witness testimony[, however,] is

within the sound discretion of the administrative judge.” Guise v. Dep’t of Justice, 330

F.3d 1376, 1379 (Fed. Cir. 2003). Here, the Administrative Judge did not abuse that

discretion. The agency put on witnesses to prove that it would have terminated Tomei

absent the protected disclosure. Tomei had the opportunity to cross-examine those

witnesses and testify herself. See Opinion at 15, 19-21, 23.

      Tomei also challenges several evidentiary rulings.         We review evidentiary

decisions for abuse of discretion, McEnery v. Merit Sys. Prot. Bd., 963 F.2d 1512, 1514

(Fed. Cir. 1992), and find no abuse here. The focus of the March 20, 2003 hearing was

the issue of whether the agency would have terminated Tomei absent the protected

disclosures. Direct evidence regarding Tomei’s whistleblowing activity was irrelevant to

that issue. What was relevant was Tomei’s conduct during her employment. To the

extent Tomei contends that witnesses testifying on that issue were biased because of

Tomei’s whistleblowing, Tomei had the opportunity to bring out that bias on cross-

examination.

      Finally, Tomei argues that the Administrative Judge erred in concluding that she

was “wrong” in blowing the whistle. Tomei, however, misinterprets the Administrative

Judge’s determination. The Administrative Judge concluded that there was clear and

convincing evidence that the agency would have terminated Tomei absent the protected

disclosure.    We can review this conclusion only to determine whether there was

substantial evidence to support it. 5 U.S.C. § 7703(c) (2000).




04-3270                                    5
       Substantial evidence means such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion. Propellex Corp. v. Brownlee, 342 F.3d

1335, 1338 (Fed. Cir. 2003).      “Clear and convincing evidence” is “evidence which

produces in the mind of the trier of fact an abiding conviction that the truth of a factual

contention is ‘highly probable.’” Price v. Symsek, 988 F.2d 1187, 1191 (Fed. Cir. 1993)

(quoting Buildex, Inc. v. Kason Indus., Inc., 849 F.2d 1461, 1463 (Fed. Cir. 1988)).

“Suspicion and speculation . . . do not rise to the level of clear and convincing

evidence.” Hageny v. United States, 570 F.2d 924, 937 n.16 (Ct. Cl. 1978).

       The agency put on evidence that absent the protected disclosures it would have

terminated Tomei because of her (1) unacceptable conduct and (2) deliberate refusal to

comply with supervisory instructions. The Administrative Judge focused his conclusions

on the extensive testimonial evidence of Tomei’s conduct during staff meetings; her

documented emails to supervisors, peers, and outsiders; and testimonial evidence

regarding her one-on-one interactions with others.        See Opinion at 23-25.       The

Administrative Judge made credibility determinations. Id. at 24.

       Reviewing the record, there is such evidence as a reasonable mind might accept

as adequate to support the conclusion that Tomei’s unacceptable conduct would have

caused the agency to terminate her probationary employment absent the protected

disclosure. A reasonable mind could find that there was solid evidence—not merely

that leading to speculation—that the agency would have terminated Tomei for this

reason alone.     Thus, substantial evidence supports the Administrative Judge’s

conclusion.




04-3270                                     6
                                   CONCLUSION

       Because the Board’s decision was not arbitrary, capricious, an abuse of

discretion or contrary to law, and further was supported by substantial evidence, we

affirm. Moreover, because sanctions against the Administrative Judge and discipline of

the agency lawyers are not warranted on the record before us, Tomei’s request for such

action is denied.




04-3270                                   7
