NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
THASHA A. BOYD,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2018-1460
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-17-0363-W-1.
______________________
Decided: July 2, 2018
______________________
THASHA A. BOYD, Kennesaw, GA, pro se.
LAUREN MOORE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by CHAD A.
READLER, ROBERT E. KIRSCHMAN, JR., STEVEN J.
GILLINGHAM.
______________________
Before REYNA, BRYSON, and HUGHES, Circuit Judges.
2 BOYD v. DVA
PER CURIAM.
This petition for review relates to a decision by the
Merit Systems Protection Board denying Thasha A.
Boyd’s request for corrective action with respect to her
individual right of action appeal alleging that the agency
engaged in unlawful retaliation against her in response to
her whistleblowing activity. For the reasons explained
below, we affirm.
BACKGROUND
Thasha A. Boyd (“Ms. Boyd”) was removed from her
position as a Veterans Service Representative at the
Department of Veterans Affairs’s (“DVA”) Veterans Bene-
fits Administration’s Atlanta Regional Office. She ap-
peals her removal in a separate but related case (2018-
1459). The relevant facts regarding her removal are
described in a related case. See Boyd v. DVA, No. 18-
1459, slip. op. at 2–4.
On November 28, 2016, Ms. Boyd filed a complaint
with her supervisor alleging various co-workers were
violating agency policies and procedures. For instance,
Ms. Boyd alleged that her co-worker, Dwayne Turner,
failed to respond to allegations that she made against him
concerning what she alleged were improper disclosures of
her medical records. Ms. Boyd also alleged that the
agency caused her humiliation during an office lunch
when a restaurant provided her with a meal that her
religious faith restricted her from eating.
On December 22, 2016, Ms. Boyd filed a complaint
with the Office of Special Counsel (“OSC”), alleging that
the agency was taking personnel actions against her in
reprisal for her whistleblowing activities. On April 11,
2017, OSC notified Ms. Boyd that it had made a determi-
nation to close its inquiry into her allegations.
On March 16, 2017, Ms. Boyd filed the instant indi-
vidual right of action appeal with the Merit Systems
BOYD v. DVA 3
Protection Board (“Board”), alleging that the DVA en-
gaged in unlawful retaliation against her in response to
her whistleblowing activity. Ms. Boyd alleged that the
agency created a hostile work environment by delaying
her access to an update of her electronic Official Person-
nel Folder (“OPF”), which resulted in the expiration of her
time to file a petition for enforcement in another case
against her former employer, the Department of Labor
(“DOL”). Ms. Boyd further alleged that the agency im-
properly investigated a complaint filed by Mr. Jahn in the
related case, improperly reassigned her work location,
and improperly issued a proposed removal letter to her.
On November 3, 2017, an administrative judge issued
an initial decision denying Ms. Boyd’s appeal. The admin-
istrative judge found that Ms. Boyd made a prima facie
case with respect to several disclosures, 1 but held that
Ms. Boyd failed to show that she had a reasonable belief
that the remaining protected disclosure allegations evi-
denced a violation of law, rule, or regulation. Appx10–
1 The disclosures are as follows: (1) The DVA was
collaborating with the DOL, the IRS, and the Board to
retaliate against Ms. Boyd for her status as a whistle-
blower and because of her ongoing litigation; (2) a co-
worker flashed his cell phone such that his wife could see
a spreadsheet that had veterans’ names and social securi-
ty numbers in plain view; (3) a co-worker left his comput-
er screen and login unlocked in violation of agency policy;
(4) on November 21, 2016, a co-worker allowed a new hire
who did not yet have access to DVA systems to use his
login information to get onto the agency’s computers; (5)
on November 21, 2016, a co-worker had an electronic
device plugged into a computer in violation of agency
policy; and (6) allegations that several co-workers were
leaving the training room early. Appx10.
4 BOYD v. DVA
11. 2 The administrative judge found that Ms. Boyd
established that her disclosures were a contributing factor
in three personnel actions.
The administrative judge next determined that Ms.
Boyd had exhausted her remedies at OSC with respect to
the following allegations of improper agency action:
(1) the agency’s investigation into Mr. Jahn’s complaint;
(2) the agency’s reassignment of Ms. Boyd’s duty station
effective December 21, 2016; (3) Ms. Boyd’s proposed
removal dated February 9, 2017; and (4) Ms. Boyd’s claim
of a hostile work environment. Appx11.
Finally, the administrative judge determined that the
agency proved by clear and convincing evidence that the
agency did not subject Ms. Boyd to a hostile work envi-
ronment and that it would have taken the personnel
action against Ms. Boyd regardless of her protected dis-
closures. Appx15–21. Ms. Boyd petitioned for review.
We have jurisdiction pursuant to 5 U.S.C. § 7703.
DISCUSSION
Our standard of review requires us to “hold unlawful
and set aside any agency action, findings, or conclusions
found to be—(1) arbitrary, capricious, an abuse of discre-
tion, 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). We will not overturn a
Board decision as long as it is supported by relevant
evidence that a “reasonable mind might accept as ade-
quate to support a conclusion.” Jacobs v. Dep’t of Justice,
35 F.3d 1543, 1546 (Fed. Cir. 1994) (citing Brewer v. U.S.
Postal Serv., 647 F.2d 1093, 1096 (Ct. Cl. 1981)).
2 All citations to “Appx” herein refer to the Separate
Appendix for Respondent.
BOYD v. DVA 5
I. Hostile Work Environment
Conduct sufficient to create a hostile work environ-
ment must be both objectively and subjectively offensive,
such that a reasonable person would find hostile or abu-
sive, and one that the victim in fact perceived to be so.
Faragher v. City of Boca Raton, 524 U.S. 775, 787–88
(1998). The administrative judge considered the totality of
the circumstances and correctly held that Ms. Boyd “failed
to show the agency’s actions were sufficiently severe or
pervasive so as to constitute a material change in [her]
working conditions.” Appx14. For example, the adminis-
trative judge found that the agency promptly responded to
Ms. Boyd’s request for login information for her OPF and
noted that Ms. Boyd failed to explain how not having this
information earlier prevented her from filing an appeal
with the Board related to her DOL case. Id. Additionally,
the administrative judge found that there was no evi-
dence that Ms. Boyd was humiliated for her religion;
rather, the mistake in Ms. Boyd’s lunch order was simply
a mistake made by the restaurant. Id. Accordingly, the
Board’s decision was supported by substantial evidence.
II. Personnel Actions
When determining whether an agency has shown by
clear and convincing evidence that it would have taken
the same personnel action in the absence of whistleblow-
ing, the Board considers the following factors: (1) the
strength of the agency’s evidence in support of its person-
nel 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 situ-
ated. Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed.
Cir. 1999).
The three personnel actions considered by the Board
were the agency’s decision to conduct an investigation into
6 BOYD v. DVA
Ms. Boyd’s conduct in the workplace; the agency’s letter
proposing Ms. Boyd’s removal; and the agency’s assign-
ment of an alternate work location. We conclude that the
Board properly considered the factors outlined above. The
Board’s holding that the agency proved by clear and
convincing evidence that it would have taken the same
personnel actions despite Ms. Boyd’s whistleblowing
activity is supported by substantial evidence.
For example, with respect to the investigation, the
administrative judge properly found that Mr. Jahn’s
serious allegations warranted an investigation and that
Ms. Boyd’s supervisor had little motive or reason to
retaliate against Ms. Boyd as a result of her protected
disclosures. Appx16–17. In response, Ms. Boyd offers no
evidence to contradict the administrative judge’s determi-
nation, but rather raises the same arguments as in the
related case challenging her removal. See Boyd v. DVA,
No. 18-1459, slip. op. at 5.
Further, the administrative judge determined that
the agency had significant evidence to support the pro-
posed removal of Ms. Boyd. The administrative judge
relied on the declaration of the proposing official and
determined that he had little motivation to retaliate
against Ms. Boyd, as there was no indication that he was
aware of Ms. Boyd’s prior whistleblowing complaint.
Appx17–18. Ms. Boyd also failed to identify other em-
ployees who were similarly situated to her (i.e., charged
with both inappropriate conduct and failure to follow a
supervisor’s instructions), and the administrative judge
properly determined this factor to be irrelevant.
Lastly, with respect to Ms. Boyd’s reassignment, the
administrative judge found no reasonable basis to believe
that the disclosures made by Ms. Boyd motivated her
third-level supervisor, Stephanie DiBello (“Ms. DiBello”)
to assign Ms. Boyd to work from an alternate location.
The administrative judge determined that Ms. DiBello’s
BOYD v. DVA 7
declaration was credible and corroborated by substantial
evidence of the allegations against Ms. Boyd at the time
she was reassigned to work from an alternate location.
Ms. Boyd argues that the administrative judge gave too
much weight to Ms. DiBello’s statements. This argument
fails because the administrative judge found the agency
had substantial reasons for wanting to remove Ms. Boyd
from her workplace based on the serious and substantive
allegations of misconduct.
CONCLUSION
Ms. Boyd advances several other arguments, but we
find these arguments equally unpersuasive. We find no
reversible error in the Board’s decision and therefore
affirm.
AFFIRMED
COSTS
No costs.