NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DIANE KING,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2015-3005
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-12-0143-W-3.
______________________
Decided: March 4, 2015
______________________
DIANE KING, Prattville, AL, pro se.
EMMA BOND, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC for respondent. Also represented by JOYCE R. BRANDA,
ROBERT E. KIRSCHMAN, JR., ALLISON KIDD-MILLER.
______________________
Before PROST, Chief Judge, DYK, and O’MALLEY, Cir-
cuit Judges.
2 KING v. ARMY
PER CURIAM.
Diane King appeals from a decision of the Merit Sys-
tems Protection Board (the “Board”) denying King’s
request for corrective action under the Whistleblower
Protection Act (“WPA”). We affirm.
BACKGROUND
In May 2011, Ms. King was terminated from her posi-
tion as a Medical Technologist at the Winn Army Com-
munity Hospital. The termination, which occurred during
King’s one-year probationary period, was for “Conduct
Unbecoming a Federal Employee.” Appellee’s App. 42
(hereinafter “App.”).
Ms. King filed an individual right of action appeal to
the Board, arguing that she was terminated in retaliation
for making protected disclosures in violation of the WPA.
Specifically, Ms. King argued that she disclosed (1) that
another employee improperly put labels on test tubes that
were supposed to be anonymous and (2) that instructions
contained in the Blood Bank Procedure manual could lead
to patient death. The administrative judge (“AJ”) held
that Ms. King had established a prima facie case of whis-
tleblowing reprisal. However, the AJ also determined that
the agency had established by clear and convincing evi-
dence that it would have terminated Ms. King even in the
absence of her whistleblowing. The AJ denied Ms. King’s
individual right of action appeal.
The full Board denied review. The Board concluded
that “ample evidence” supported Ms. King’s termination.
Id. at 11. The full Board also concluded that Ms. King “did
not identify any direct or circumstantial evidence of
retaliatory animus, proffered no evidence of retaliatory
motive, presented no evidence about any other probation-
ers who behaved as she did and were not terminated, did
not support her allegation that the agency’s witnesses
KING v. ARMY 3
were untruthful, and offered no evidence of collusion.” Id.
at 12.
Ms. King seeks review of the Board decision. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our review of the Board’s decision is limited in scope.
We may only set aside an agency’s “action, findings, or
conclusions” if they are “(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).
The question here is whether the agency properly es-
tablished “by clear and convincing evidence that it would
have taken the same personnel action in the absence of [a
protected] disclosure.” 5 U.S.C. § 1221(e)(2). We have
identified three factors relevant to this determination: (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.” Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323
(Fed. Cir. 1999).
With respect to the first Carr factor, the AJ found “ev-
idence of serious performance and behavior prob-
lems . . . .” App. 21. When removing Ms. King, the agency
stated that she “ha[d] been discourteous to [her] co-
workers and [she] ha[d] disrupted the work environment.”
Id. at 42. Ms. King had failed a competency exam, had
numerous conflicts with her trainers and other co-
workers, and had refused to follow directions. At least
three of her co-workers came to Ms. King’s supervisor to
express concerns that Ms. King created a hostile work
4 KING v. ARMY
environment. Ms. King admitted that she had called a co-
worker a compulsive liar, rabid, and dysfunctional, and
accused that co-worker of suffering from delusions. The
AJ concluded that
no reasonable agency management official would
tolerate a probationary employee who cannot get
along with coworkers, who fails to effectively
communicate, and who creates an unpleasant
work environment for her coworkers, much less
one who speaks disrespectfully of her supervisors
and coworkers while seemingly unable or unwill-
ing to learn the skills necessary to perform suc-
cessfully in her new job.
Id. at 22. Ms. King challenges the AJ’s findings, including
his credibility findings. The Board’s findings are amply
supported by the evidence.
As to the second Carr factor, the AJ concluded that
Ms. King “presented no evidence to show that either [her
direct supervisor or the management official taking the
personnel action] had any motive to take a reprisal action
against her.” Id. at 21. Ms. King argues that her entire
chain of command met and decided to terminate her
employment. But this does not point to a motive by the
decision-makers to retaliate under the second factor. The
AJ noted that both Ms. King’s direct supervisor and the
management official who took the personnel action had
viewed Ms. King’s whistleblowing favorably. 1
1 King further argues that the Board ignored the
“cat’s paw” issue, as described in cases like Staub v.
Proctor Hospital, 131 S. Ct. 1186, 1190, 1192 (2011)—
whether the deciding official was improperly influenced
by someone with animus. But there is no evidence that
someone with animus against Ms. King had influence
over the decision-makers.
KING v. ARMY 5
With respect to the third Carr factor, the AJ stated
that Ms. King “[wa]s unable to point to any probationer
who engaged in comparable misconduct who has not been
terminated during her probationary period.” Id. Ms. King
argues that, while there were no other probationary
employees, another non-whistleblower employee was
insubordinate but was not disciplined. Ms. King acknowl-
edges that there were no similarly situated probationary
employees, and non-probationary employees are not
situated similarly to King. The Board did not err in hold-
ing that the agency properly established “by clear and
convincing evidence that it would have taken the same
personnel action in the absence of [a protected] disclo-
sure.” 5 U.S.C. § 1221(e)(2).
Ms. King also argues that she “was not made aware of
[certain] statements [relied on by the agency in her ter-
mination] and therefore, could not respond [to the notice
of proposed removal].” Appellant’s Br. 2. There is no claim
that Ms. King lacked access to the witness statements
during the Board proceedings. If Ms. King had been an
“employee” within the meaning of 5 U.S.C.
§ 7511(a)(1)(A), her argument concerning lack of notice at
the agency level might have some relevance under our
decision in Stone v. Fed. Deposit Ins. Corp., 179 F.3d 1368
(Fed. Cir. 1999), but we have not held that Stone applies
to probationary employees and, in any event, Ms. King
did not raise this issue with the Board in her petition for
review, and the full Board did not address this argument.
AFFIRMED