                                                                                 FILED
                                                                     United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                          Tenth Circuit

                           FOR THE TENTH CIRCUIT                         December 27, 2017
                       _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
ANTHONY J. MOTTAS,

      Petitioner,

v.                                                       No. 17-9504
                                                (MSPB No. DE-1221-16-0415-W-1)
DEPARTMENT OF ARMY,                                  (Petition for Review)

      Respondent.
                       _________________________________

                           ORDER AND JUDGMENT*
                       _________________________________

Before TYMKOVICH, Chief Judge, HARTZ and O’BRIEN, Circuit Judges.
                 _________________________________

      Anthony Mottas appeals the decision of the Merit Systems Protection Board

(Board) denying his request for corrective action on his claim that he was subjected

to personnel actions in retaliation for his whistleblowing communication. We have

jurisdiction under 5 U.S.C. § 7703,1 and we affirm.


      *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
      1
        Until late 2012, the United States Court of Appeals for the Federal Circuit
had exclusive jurisdiction to review a final decision of the Board alleging a
prohibited personnel practice described in 5 U.S.C. § 2302(b)(9), as alleged here.
But for a five-year period beginning December 27, 2012, an appellant is authorized to
                                                                             (continued)
                                 I. BACKGROUND

      At the relevant times, Mr. Mottas was employed as a file clerk at the

Department of the Army’s Irwin Army Community Hospital (Agency). He also

helped at the front desk. On February 23, 2016, Mr. Mottas submitted an action

request form to the Inspector General expressing two concerns relating to his

workplace: (1) for the preceding six years, he and other employees were not given

required daily breaks despite his requests to his supervisors; and (2) he was assigned

to do more work without receiving a job reclassification. This disclosure arguably

implicated Cynthia Sallee, Mr. Mottas’s direct supervisor, and Major Gordon Lyons,

a member of Mr. Mottas’s chain of command.

      On April 1, 2016, Shellie Bolger, an Agency employee, sent an email to her

supervisor, Barbara Garber, stating she had heard that Mr. Mottas was going to be

assigned to work with her again after several months of working apart. Ms. Bolger

reported that when she had worked with him in the past, he had read the medical files

in the file room and questioned her regarding the various medical providers’ actions.

She indicated she did not agree with Mr. Mottas’s practice of reading other people’s

medical files. Ms. Garber informed Major Lyons, who in turn informed Daniel Key,

Compliance Specialist for the Health Insurance Portability and Accountability Act

(HIPAA). Mr. Key then investigated whether Mr. Mottas had violated HIPAA.



seek judicial review in either the Federal Circuit or the appropriate regional circuit.
5 U.S.C. § 7703(b)(1)(B) (2012). Mr. Mottas has elected to appeal to this circuit.

                                            2
      On April 5, 2016, four days after the Bolger email, Ms. Sallee placed

Mr. Mottas on paid administrative leave for April 5 and 6, 2016. From April 7 to

June 2, 2016, he was detailed to work in the Outpatient Records Department.

Following an investigation, on June 1, 2016, the Agency issued Mr. Mottas a notice

of counseling for violating HIPAA by reading the medical files. He was informed

that his detail to Outpatient Medical Records would end, and he would be detailed to

work in the Department of Behavioral Health beginning on June 2, 2016. There, he

would perform the duties of a file clerk, but would have no front-desk duties. He was

further informed that on June 16, 2016, he would begin a rotation to the

Department’s various file rooms.

      Mr. Mottas filed an Individual Right of Action with the Board alleging he was

retaliated against for his Inspector General disclosure about daily breaks and job

duties. Following a hearing, an administrative judge (AJ) determined that Mr. Mottas

established a prima facie case of reprisal for making an Inspector General disclosure

by establishing that his disclosure—the February 23, 2016 action request form—was

protected under the Whistleblower Protection Enhancement Act and contributed to

his job reassignments. In addition, the AJ ruled Mr. Mottas showed that the three

challenged actions—placement on administrative leave, detail to Outpatient Records,

and detail to rotate among the Department of Behavioral Health’s file rooms—met

the statutory definition of “personnel actions,” see 5 U.S.C. § 2302(a)(2)(A)(iv) &

(xii); 5 C.F.R. § 1209.4(a)(3) & (4) (defining “personnel action” to include

“disciplinary or corrective action” and “[a] detail, transfer, or reassignment”).

                                            3
      The AJ then held that the Agency established by clear and convincing

evidence that it would have taken the same actions even absent Mr. Mottas’s

Inspector General disclosure. Therefore, the AJ denied Mr. Mottas’s request for

corrective action. Mr. Mottas did not petition for further agency review, so the AJ’s

decision became the Board’s final decision. Mr. Mottas now appeals to this court.2

                              II. LEGAL STANDARDS

      The Whistleblower Protection Enhancement Act of 2012 prohibits a personnel

action with respect to an employee because he “disclos[ed] information to the

Inspector General of an agency.” 5 U.S.C. § 2302(b)(9)(C). An employee may state

a claim of reprisal for whistleblowing by first showing by a preponderance of the

evidence that he or she made a protected disclosure under 5 U.S.C. § 2302(b)(9)(C),

and that the disclosure “was a contributing factor in the personnel action which was

taken . . . against such employee.” 5 U.S.C. § 1221(e)(1); 5 C.F.R. § 1209.7(a).

If the employee does so, however, the Board may not order corrective action if 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);

5 C.F.R. § 1209.7(b). “Clear and convincing evidence is that measure or degree of

proof that produces in the mind of the trier of fact a firm belief as to the allegations



      2
         Mr. Mottas does not appeal the Board’s rejection of his claim based on the
Collective Bargaining Agreement, so that claim is waived. See Kabba v. Mukasey,
530 F.3d 1239, 1248 (10th Cir. 2008) (holding litigant waived issue on appeal by
failing to present any argument challenging the decision under review).

                                            4
sought to be established. It is a higher standard than preponderance of the

evidence. . . .” 5 C.F.R. § 1209.4(e) (internal quotation marks omitted).

      We will set aside the Board’s decision if, among other grounds, it is

“unsupported by substantial evidence,” 5 U.S.C. § 7703(c). “Substantial evidence is

such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Wells v. Colvin, 727 F.3d 1061, 1067 (10th Cir. 2013) (internal

quotation marks omitted). We do not, however, substitute our judgment for that of

the Board. Williams v. Rice, 983 F.2d 177, 180 (10th Cir. 1993).

                                 III. DISCUSSION

      The parties do not dispute the Board’s findings that Mr. Mottas made a

protected disclosure, he was subjected to personnel actions after doing so, and the

disclosure was a contributing factor in the personnel actions. It is also undisputed

that Mr. Mottas’s supervisor, Ms. Sallee, as well as his chain of command—Major

Lyons, Colonel Timothy Bergeron, and Colonel Risa Ware—were aware of his

Inspector General disclosure. It is further undisputed that the chain of command

made the personnel decisions at issue with Ms. Sallee’s input.

      Mr. Mottas challenges the Board’s determination that the Agency carried its

burden of proving by clear and convincing evidence that it would have taken the

same personnel actions even if Mr. Mottas had not made the Inspector General

disclosure. We will follow the parties’ lead and apply the factors used in Carr v.

Social Security Administration, 185 F.3d 1318, 1324 (Fed. Cir. 1999), to evaluate

Mr. Mottas’s claims. Those factors are:

                                           5
      [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
      who are not whistleblowers but who are otherwise similarly situated.
Id.

A. Placement on administrative leave and detail to Outpatient Records

      The Board analyzed the first two challenged actions together given that both

followed from the Bolger email. In assessing Carr factor one—the strength of the

agency’s evidence—the Board found that the Agency’s evidence was “strong.”

Admin. R. at 521. The Board relied on the testimony of Ms. Bolger and Mr. Key that

“nobody put them up to their actions,” and “each of the individuals involved in

[Mr. Mottas’s] administrative leave, detail, and later rotation corroborated the same.”

Id. at 518. Moreover, the Board found that it was Mr. Key who decided to

investigate Mr. Mottas and who determined that he had in fact violated HIPAA.

      Mr. Mottas asserts that the Board ignored contrary evidence. He first contends

the time lapse of over eight months between Ms. Bolger’s observation of Mr. Mottas

reading medical files and her email reporting his activity detracts from the strength of

her allegations. But the Board did address this claim, noting that Ms. Bolger testified

that she wrote the April 1, 2016 email when she learned that Mr. Mottas was again

going to be assigned to the same file room where she worked. The Board found

Ms. Bolger’ testimony “extremely credible,” id. at 518, a finding we do not

reevaluate on appeal, see Hambsch v. Dep’t of Treasury, 796 F.2d 430, 436 (Fed. Cir.

1986) (stating that credibility “determinations are virtually unreviewable”).

                                           6
      To the extent Mr. Mottas relies on the Agency’s HIPAA policy requiring

complaints of HIPAA violations to be filed within 180 days of discovery, see Admin.

R. at 95, the Board considered and rejected this argument. The Board observed that

the policy refers only to a complaint, not an agency investigation, and the time limit

applies to the date of discovery, not the date of the violation. See id.

      Mr. Mottas next asserts that the Agency’s evidence is weakened by the brief

duration of his administrative leave and the evidence indicating that Mr. Key did not

commence his investigation until a month later, on May 3, 2016. But the Board

acknowledged the brief administrative leave. The Board credited Colonel Ware’s

testimony that the Agency wanted to keep Mr. Mottas useful during the investigation

so it assigned him to Outpatient Records, which was in need of file clerks. On these

limited facts, we cannot say that the timing significantly weakened the Agency’s

evidence.

      Mr. Mottas further asserts that his own testimony that he was left alone in the

record rooms diminished the strength of the Agency’s evidence that he was detailed

to Outpatient Records because his access to medical records needed to be limited.

The Board acknowledged Mr. Mottas’s testimony, as well as the testimony of

Colonel Ware, which it characterized as “calm and forthright,” id. at 523, that

Outpatient Records provided supervision. The Board noted that even though

Mr. Mottas had the opportunity to challenge Colonel Ware’s statement about

supervision, he did not do so. Mr. Mottas now argues that the Agency should have

obtained the testimony of the file room supervisor, but he has cited no authority

                                            7
requiring additional witnesses. He asks this court to reweigh the evidence, which we

do not do. See Hendron v. Colvin, 767 F.3d 951, 956 (10th Cir. 2014) (stating that

when reviewing an agency’s determination, this court does not reweigh the

evidence).

      Turning to Carr factor two—motive to retaliate on the part of the agency

officials who were involved in the decision—the Board found only a “slight motive,”

Admin. R. at 519. Mr. Mottas contends Ms. Sallee and Major Lyons were motivated

to retaliate against him because they were implicated in his Inspector General

disclosure. The Board concluded that the Agency had “only the most generalized

retaliatory motive . . . that can be presumed to exist for any official when a disclosure

tends to reflect unfavorably upon his or her command.” Id. Mr. Mottas has made no

argument to challenge this reasonable conclusion.

      We next consider Carr factor three—evidence that the agency took similar

actions against employees who were not whistleblowers but who were otherwise

similarly situated. Mr. Mottas pointed to two other employees who allegedly

committed HIPAA violations. The first was a front desk clerk who handed a

patient’s confidential medical information to the patient’s escort, rather than directly

to the patient. At the time, this procedure was consistent with agency policy,

although in violation of HIPAA rules. Consequently, the agency policy was changed.

The Board found that even if the other employee had not made protected disclosures

(and thus was not a whistleblower) and his or her line of supervision was related to

Mr. Mottas’s, the comparison was not relevant. The other employee committed only

                                            8
one HIPAA violation and did not conceal it or deny doing do. In contrast,

Mr. Mottas denied the allegation that he had looked through numerous confidential

medical files. The Board found Mr. Mottas “gave the [A]gency far more reason for

concern.” Id. at 521.

      In the second example, an undetermined number of folders were thrown in the

trash, but no one was placed on administrative leave or detailed over the incident.

The Board accepted Mr. Key’s description of this incident as a “cut and dry

violation,” id., and determined that the incident was dissimilar to Mr. Mottas’s

violation. The Board held that the other employee’s single, apparently undisputed

violation could not be compared to Mr. Mottas’s repeated violations that he

steadfastly denied he committed.

      Mr. Mottas contends that the Board took too narrow a view of the requirement

that employees be similarly situated. We disagree and conclude that substantial

evidence supports the Board’s treatment of the proposed comparators. We further

conclude that substantial evidence supports the Board’s resolution of Mr. Mottas’s

first two challenged actions.

B. Rotation to other file rooms

      The Board held that the Agency produced clear and convincing evidence that

Mr. Mottas would have been detailed to rotate among the Department of Behavioral

Health’s file rooms even absent his Inspector General disclosure. Mr. Mottas

complains that the work for this rotation did not include any front desk duties, thus

demonstrating retaliation.

                                           9
      Applying the first Carr factor, the Board found strong reasons for the

assignment: (1) Mr. Mottas told the Agency he wanted to remain a file clerk, and

(2) the Agency needed a file clerk to perform the duties assigned to Mr. Mottas.

Mr. Mottas alleges the Board disregarded evidence that detracted from its conclusion.

On March 30, 2016, Mr. Mottas sent an email to Ms. Sallee indicating that he would

continue to assist at the front desk, as he had in the past. Id. at 183. He also points

to the Board’s observation that Colonel Bergeron “testified that [Mr. Mottas]

objected to being taken away from the opportunity to assist the front desk when he

first learned of [Ms.] Sallee’s new approach to his duties.” Id. at 524.

      Contrary to Mr. Mottas’s claim, the Board considered this evidence, as well as

evidence supporting the Agency’s decision. Mr. Mottas’s March 30 email also stated

that he had decided to stay as a file clerk, to which Ms. Sallee agreed and told him

that he would no longer work at the front desk. Id. at 182. The Board found that this

action was “mainly consistent” with Mr. Mottas’s “expressed preference to ‘stay’ as a

file clerk.” Id. at 524. The Board further noted that Mr. Mottas’s offer to help at the

front desk “was contrary to his previous complaints about performing [those duties,]”

and “one of his key alleged disclosures was that he was performing such front desk

duties outside of his position description, i.e., that he should not have been

performing such desk duties.” Id. The Board also relied on the Agency’s evidence

that additional file clerks were needed. Again, Mr. Mottas asks this court to reweigh

the evidence, which we do not do. See Hendron, 767 F.3d at 956.



                                           10
      For Carr factor two, Mr. Mottas again asserts that because his Inspector

General disclosure arguably implicated Major Lyons and Ms. Sallee, they had a

strong motive to retaliate against him. But again, he has provided no additional

evidence or reasoning to support this argument. Substantial evidence supports the

Board’s determination that the Agency had only a slight motive to retaliate by

assigning him to rotate among the file rooms.

      Finally, the Board found that Carr factor three was “neutral” because neither

party proffered any similarly situated employees. Admin. R. at 525. Mr. Mottas

contends that the Agency’s failure to produce evidence of similarly situated

employees cuts in his favor. He argues that “‘the absence of any evidence

concerning Carr factor three may well cause the agency to fail to prove its case

overall.’” Aplt. Br. at 26 (quoting Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1374

(Fed. Cir. 2012)). But Whitmore does not hold that a lack of evidence concerning

Carr factor three weighs against the agency. On the contrary, Whitmore states 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,” and “the absence of any

evidence relating to Carr factor three can effectively remove that factor from the

analysis.” Whitmore, 680 F.3d at 1374. Therefore, the Board did not err in finding

this factor was neutral. The Board’s decision regarding Mr. Mottas’s rotation to the

Department of Behavioral Health’s file rooms is supported by substantial evidence.




                                          11
                                IV. CONCLUSION

      In sum, substantial evidence supports the Board’s determination that the

Agency established by clear and convincing evidence that it would have taken the

same personnel actions in the absence of Mr. Mottas’s Inspector General disclosure.

Accordingly, the Board’s decision is affirmed.


                                          Entered for the Court


                                          Timothy M. Tymkovich
                                          Chief Judge




                                         12
