United States Court of Appeals
for the Federal Circuit
__________________________
ROBERT WADE WHITMORE,
Petitioner,
v.
DEPARTMENT OF LABOR,
Respondent.
__________________________
2011-3084
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DC0752090890-I-1.
___________________________
Decided: May 30, 2012
___________________________
PAULA DINERSTEIN, Public Employees for Environ-
mental Responsibility, of Washington, DC, argued for
petitioner.
LAUREN A. WEEMAN, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondent.
With her on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and TODD M.
HUGHES, Deputy Director. Of counsel on the brief were
JAMES V. BLAIR, Acting Deputy Associate Solicitor, and
WHITMORE v. LABOR 2
JENNIFER M. DILLARD, Attorney, United States Depart-
ment of Labor, of Washington, DC.
__________________________
Before RADER, Chief Judge, and O’MALLEY and REYNA,
Circuit Judges.
REYNA, Circuit Judge.
Robert Whitmore (“Whitmore”) appeals the decision of
the Merit Systems Protection Board (“MSPB”), which
declined to set aside Whitmore’s removal from his position
with the Department of Labor (“DOL”). While the DOL
alleged that Whitmore’s removal was due to his increas-
ingly disruptive and insubordinate behavior, Whitmore
alleged that the removal was an unlawful retaliation for
his lawful whistleblowing disclosures. In analyzing
whether the DOL had proven by clear and convincing
evidence that Whitmore would have been removed regard-
less of his whistleblowing disclosures, the MSPB excluded
or ignored evidence offered by Whitmore necessary to
adjudicate Whitmore’s retaliation claim, and otherwise
applied the law incorrectly. Accordingly, we vacate and
remand for further fact finding wherein all of the relevant
evidence is considered pursuant to correct legal stan-
dards.
I. FACTUAL BACKGROUND
Whitmore began his 37-year career in the Department
of Labor in 1972 as an economist with the Bureau of
Labor and Statistics (“BLS”). Beginning in 1987, Whit-
more served as the head of the Recordkeeping Require-
ments group of the BLS, and the group was transferred in
1990—with Whitmore remaining as its head—to the
Office of Statistical Analysis (“OSA”), Directorate of
Evaluation and Analysis (“DEA”) in the Occupational
Safety and Health Administration (“OSHA”). For his
3 WHITMORE v. LABOR
entire career prior to 2005, Whitmore regularly received
better than satisfactory performance reviews, bonuses,
and awards, and was never subject to any discipline.
In 2005, Whitmore began making public disclosures
alleging that OSHA was failing to enforce its recordkeep-
ing requirements and acquiescing in industry reports of
impossibly low numbers of injuries and illnesses, which
allegedly hampered OSHA’s ability to target inspections
and undertake enforcement actions to prevent such
injuries and illnesses. In April of 2005, Whitmore pro-
vided comments for an article in the Oakland Tribune
regarding questionable worker injury numbers being
reported by a bridge construction company that had
partnered with California OSHA, which is overseen by
federal OSHA. Whitmore was quoted as saying he found
the reported injury rates in the dangerous work of con-
struction on the Bay Bridge were “hard to believe, and
require verification,” and also stated that the company’s
practices pressured workers to avoid reporting injuries.
A954, A960. 1
Also in 2005, Whitmore provided an affidavit support-
ing a co-worker, Kim Ngyuen, in her Equal Employment
Opportunity (“EEO”) complaint for alleged discrimination
and retaliation by her managers at OSHA. Whitmore’s
affidavit attested in particular to improper discriminatory
action by OSHA official Bob Pitulej. Nguyen’s case was
resolved via settlement, and Pitulej later became the
Deputy Director of DEA within Whitmore’s chain of
command.
The record shows that shortly after the Oakland
Tribune article appeared, Keith Goddard, DEA’s Director,
told Mark Kitzmiller, an OSHA employee supervised by
1 Citations to “A___” herein refer to pages of the
Joint Appendix filed by the parties.
WHITMORE v. LABOR 4
Whitmore, that Steve Witt, OSHA’s Director of Coopera-
tive and State Programs, was upset about Whitmore’s
comments in the Oakland Tribune. Testimony from
Kitzmiller indicates that Witt said he was “going after”
Whitmore. A482, A508. Whitmore’s comments were
viewed by Goddard as “unprofessional” for being made
“improperly and without permission” to speak on behalf of
OSHA. A899-900, A1037-38. Goddard would later pro-
pose Whitmore’s removal in 2007, but Witt was the pro-
posing official in Whitmore's ultimate removal in 2009, as
explained below.
After the Oakland Tribune article, Whitmore’s per-
formance review was changed from “highly effective” to
“meets expectations” by his direct supervisor, Joe Dubois.
It was Whitmore’s first performance review in 35 years in
which he was not rated as “outstanding” or “exceeds
expectations.” What followed was a two-year period in
which Whitmore made additional whistleblowing disclo-
sures, throughout which time tension between Whitmore
and his supervisors continually increased until reaching a
breaking point in July of 2007.
A. Tensions Mount
Due to various medical and personal matters, Whit-
more had been taking a significant amount of time on
leave from work. Following the 2005 Oakland Tribune
article, however, Whitmore’s leave totals as reported by
Dubois soon began to diverge from the totals maintained
by the payroll system and from Whitmore’s own informal
calculations. Whitmore’s attempts to speak with Dubois
and/or Goddard about this issue were ignored or met with
hostility. Whitmore and Dubois got into numerous argu-
ments, resulting in a strained professional relationship.
In early 2006, Whitmore began working with report-
ers for the Charlotte Observer on a series of articles
5 WHITMORE v. LABOR
relating to non-reported injuries in the poultry processing
industry. One of the articles in the series is titled “He
says his agency is at fault – Recordkeeping chief says
OSHA lets companies underreport injuries.” A956-66,
A696. The article reported Whitmore as stating that
OSHA was “leaving businesses to police themselves” and
had little awareness of the hazards in certain industries.
Id.
By late 2006, in response to Whitmore’s continued at-
tempts to have his leave time properly granted and cred-
ited, Dubois instituted a special personnel procedure,
unique to Whitmore, requiring Whitmore to present “an
original doctor’s note supporting [his] illness claim”
whenever he called in sick. A768. Both Dubois and
Goddard ignored Whitmore when he requested leave for
serious health or family problems, and Dubois would
charge Whitmore with Leave without Pay and Away
Without Leave even though Whitmore had been directed
by his physician to take time off.
In 2007 Whitmore posted an offensive sign on his
door, stating that that everyone must knock to enter his
office, and that “P.S. That includes you Ms. Feeling,”
referring to Dubois’s assistant (actually named Cheryl
Fielding). A752, A826.001-.003. Whitmore testified that
he believed Ms. Fielding was snooping in people’s offices,
and that given the hostility he felt generally directed
toward him around OSHA, he was concerned for his
safety. A401-02. After being repeatedly asked to remove
the sign, Whitmore instead changed the name from “Ms.
Feeling” to “Joe” Dubois. A752, A826.002.
Throughout this time period, Whitmore sent a num-
ber of emails highly critical of if not hostile to Dubois,
copying Whitmore’s staff as well as OSHA officials having
nothing to do with Whitmore’s leave or his disputes with
WHITMORE v. LABOR 6
Dubois. A767-826 (stating, for example, “I had difficulty
sleeping last night after the week-long additional har-
assment that you put me through . . . we both know the
stress you are giving me is intentional and has got to
stop”; “If I am not paid my full salary for this pay period,
and done so in a timely manner, I will hold you personally
responsible”; and “this illegal action smacks of retalia-
tion”). This insubordinate email behavior by Whitmore
escalated over time, and resulted in Whitmore’s being
admonished by Robert Poogach, the Deputy Director of
OSHA’s Administrative Office, for copying uninvolved
parties on his private issues, but Whitmore did not cease
such practices. A818 (“I would also add my disappoint-
ment that in your email to me you chose to continue your
practice of cc’ing staff members in communications that
does [sic] not properly concern them.”). For his part,
Dubois perpetuated such argumentative email threads
between himself and Whitmore, copying uninvolved
OSHA officials. See, e.g., A790 (copying Goddard and six
other OSHA employees on email stating “I have no control
over this [religious comp time policy], but you whined
about it for several months”); A783-84 (copying Goddard
and six other OSHA employees on email stating “[y]ou
have over two years of advanced sick leave, I am not
approving any more”); A798 (copying Goddard and two
other OSHA officials on email to Whitmore, stating “for
the third time, I direct you to remove the sign taped to
your door . . . [a]nd thank you for slamming your door in
my face”).
On March 20, 2007, Whitmore submitted a Waste,
Fraud, and Abuse claim to the DOL office of the Inspector
General (“IG”) regarding an illegal gambling pool for the
NCAA Men’s Basketball tournament conducted by Dubois
using government resources. Dubois’ computer was
confiscated by the IG, but no charges were ever pressed
7 WHITMORE v. LABOR
against him. On March 22, 2007, two days after Whit-
more disclosed Dubois’ purported illegal gambling activi-
ties, Dubois notified Whitmore that he was taking away
Whitmore’s authority as a rating official—i.e., removing
Whitmore’s responsibility for conducting the performance
evaluations of the OSA personnel under Whitmore’s
supervision.
In early 2007, the record shows that Dubois told
Kitzmiller that he was intentionally altering Whitmore’s
timesheets to deprive Whitmore of leave time. In May
2007, Whitmore’s numerous requests for a formal leave
audit were finally granted, and the results were much
closer to Whitmore’s totals than Dubois’s, finding 75
hours of leave time that had not been properly credited.
Whitmore received “minimally satisfactory” perform-
ance evaluations in 2006 and 2007. He continually
sought an opportunity to discuss his leave and other
alleged harassment issues with his supervisors, or to
otherwise remedy the problems via OSHA’s internal
grievance procedures, but to no avail.
Goddard wrote two memoranda in the spring of 2007
describing Whitmore’s behavior. An April 2007 memo
described Whitmore as disruptive, showing signs of poten-
tial workplace violence and exhibiting disturbing bullying
behavior. A903. A June 2007 memo noted the continued
escalation of Mr. Whitmore’s unprofessional conduct, and
again expressed concerns for safety of other OSHA per-
sonnel. A899.
B. The July 10, 2007 Incident
On the morning of July 10, 2007, Whitmore went to
Dubois’s office to discuss a leave request and the discus-
sion became heated, with Dubois ordering Whitmore to
leave his office. Whitmore later encountered Dubois in
WHITMORE v. LABOR 8
the hall and called Dubois a “chickenshit” for not allowing
them to meet with Goddard together, and Dubois retorted
“you’re chickenshit.” A318, A417-18. As Dubois walked
away, Whitmore followed closely behind in a prancing
fashion, mimicking Dubois until Dubois turned around
and Whitmore went back to his office. Later, Whitmore
came back to Dubois’s office to discuss a work assignment
and Dubois dismissively told him that the instructions
were clear. When Whitmore attempted to broach the
subject of the leave request again, an argument ensued
and Dubois told him to leave or he would call security.
Whitmore complied and waited outside Dubois’ office,
then sparked another argument by suggesting that he
should submit a new complaint to the DOL IG regarding
Dubois’s illegal use of government resources to produce
literature for his wife’s election campaign. At that point,
Whitmore testified that Dubois briskly walked up to
Whitmore, made a hawking sound, and intentionally spit
on his chest. Whitmore then yelled out: “I can’t believe
you spit on me!” A421, A496. Dubois testified that
Whitmore had also spit on him. The AJ later found that
both men’s spitting on the other was not likely inten-
tional, but was an inadvertent consequence of their high
tempers and yelling in close proximity to each other.
When Dubois attempted to close the door, Whitmore
put his foot in the way and told Dubois that if he ever spit
on him again, he would “knock him into the basement.”
A420-21. Whitmore testified that this was “the first time
and only time . . . I threatened someone with physical
violence.” A420. Whitmore then removed his foot from
the door and walked down the hallway, yelling for some-
one to call security. In the hallway Whitmore encoun-
tered Dave Schmidt, director of OSA, standing in a
narrow passageway between a wall and some filing cabi-
nets. On the other side of the narrow passageway was
9 WHITMORE v. LABOR
Goddard’s office, and Whitmore wanted to show Goddard
the spit on his shirt and explain the situation. Whitmore
claimed Schmidt would not allow him to pass to God-
dard’s office. Whitmore then physically pushed past
Schmidt while yelling “get out of my way,” and possibly
also spit on Schmidt. A423-24. Whitmore expressed that
he was so angry he “could have just cold cocked [Mr.
Schmidt] right then and there” for blocking his way out of
the area. A424.
On July 12, 2007, David Schmidt sent a memorandum
to the Director of OSHA’s Directorate of Administrative
Programs complaining of “[u]nacceptable conditions
associated with workplace violence.” A756, A1038. The
memorandum indicated that Whitmore’s “actions ha[d]
led to a genuine feeling of fear by several employees,” and
that those employees requested OSHA to take action that
would keep the office free of fear and violence. A756-57,
A1038.
A week after the July 10, 2007 incident, Whitmore
was placed on paid administrative leave, where he re-
mained for two years until his ultimate removal. Dubois
was never subject to any disciplinary action.
C. The Morgan Investigation
After Whitmore was placed on administrative leave,
DOL hired David Morgan, a former OSHA employee, to
investigate the July 10 incident and concerns about a
hostile work environment. Whitmore contends that
Morgan was biased in favor of OSHA in prior whistle-
blower investigations, and was hired not to conduct an
impartial investigation but to build a case against Whit-
more to legally support his removal. In one chain of
emails with OSHA’s Robert Poogach, Morgan referred to
himself and OSHA collectively as “we,” expressed hope
WHITMORE v. LABOR 10
that “we” would “kick [the whistleblower’s] ass this time,”
and called Whitmore a “lying dog.” A680-81.
Whitmore further contends that Morgan selectively
chose to interview only those witnesses who were adverse
to Whitmore. The selected witnesses came from a list
prepared by Goddard of people that could “attest to the
bullying and aggressive behavior of Mr. Whitmore,” and
others referred by those persons on Goddard’s list. More-
over, Whitmore contends that Morgan pressured wit-
nesses and tampered with their statements to make his
report more favorable to OSHA. For example, Whitmore
points to an email from Cecimil Maldonado, an OSHA
Labor Relations Officer, forwarding a statement by OSHA
employee Richard Fairfax to Morgan, stating: “[h]ere is
the Fairfax statement . . . it’s not what we wanted.” A670.
Morgan responded by suggesting that he may need to “go
after Fairfax again . . . .” A674. As another example,
Whitmore points to an early statement by DEA employee
Clay Taylor expressing the view that Whitmore was the
victim of intentional retaliation and a hostile work envi-
ronment, stating in particular that “Keith Goddard puts
Joe Dubois up to things to mess with Mr. Whitmore, like
denying his leave and changing the evaluation rating
official, taking the responsibility away from Mr. Whit-
more.” A637. Later this sentence was omitted in a re-
vised statement because, as Taylor explained, “at the time
I was very upset about some issues and I believe my
anger shows in my statement.” A635, A669. In response
to this change, Morgan commented in an email: “Looks
like Clay may have wised up.” A669. The OSHA Labor
Relations Officer to whom Morgan’s email was addressed
responded: “Yes!” A669. Whitmore also noted that sev-
eral witnesses expressed views unfavorable to him who
had little to no dealings with him. A855, A905-06 (e.g.,
“Bob Whitmore is the problem,” his “behavior is of a
11 WHITMORE v. LABOR
bullying nature,” “something bad is going to happen it’s
just a matter of time”).
Morgan’s report, dated November 22, 2007, contained
lengthy summaries of the various interviews and docu-
mentary evidence, and concluded that Whitmore’s conduct
implicated DOL’s Workplace Violence Program, and
warranted “permanent action” against Whitmore to
protect OSHA’s other employees from harm. A829, A859.
On November 20, 2007, however, two days before Mor-
gan’s report was even completed, Goddard had already
authored a proposed notice for removal of Whitmore,
citing the July 10, 2007 incident as well as other disre-
spectful and intimidating conduct including Whitmore’s
emails to Dubois copying various uninvolved OSHA
personnel. A1036-57. Goddard’s proposal was not issued
at that time, however.
D. Whitmore’s Final Disclosures and Removal
Whitmore continued to make whistleblowing public
disclosures and comments while on paid administrative
leave. On June 19, 2008, he testified before Congress
regarding the underreporting of workplace injuries and
illness, where he accused senior OSHA management of
intentionally ignoring fraudulent data submitted by
employers. A967-76. On June 27, 2008, he appeared on a
television program again discussing recordkeeping defi-
ciencies, concluding that OSHA was “not there represent-
ing the workers. We’re representing the businesses.”
A977-82. On February 18, 2009, the Washington Post
published an article about Whitmore’s various disclosures
and the fact that he had been placed on extended admin-
istrative leave. A527-28. The DOL IG saw the article and
wrote to the Acting Deputy Secretary, who then spoke to
the Deputy Assistant Secretary, stating that the agency
needed to “resolve this one way or the other.” A190.
WHITMORE v. LABOR 12
A few weeks later on April 3, 2009, the DOL issued a
notice of proposed personnel action proposing the removal
of Whitmore from his position. A748-55. The 2009 pro-
posal was not the same one that had been authored (but
not issued) by Goddard in 2007, although the substance of
the 2009 proposal was essentially the same. This time,
the proposal was authored by Steven Witt with Donald
Shalhoub, Deputy Assistant Secretary, as the deciding
official, both of whom were outside Whitmore’s chain of
command. Witt’s proposal extensively summarized and
quoted from Morgan’s report, and reached the same
conclusion that a permanent removal of Whitmore was
necessary. A756-63, A827-859.
The April 3, 2009 proposal charged Whitmore with
Disruptive and Intimidating Behavior, Conduct Unbecom-
ing a Supervisor, and Inappropriate Conduct in the
Workplace. The July 10, 2007 incident formed the basis
for the first charge, while the latter two charges were
based on the several emails concerning Whitmore’s dis-
putes with Dubois in which he took an accusatory tone
with Dubois and copied his staff and other OSHA man-
agement officials. A12-13, A748-55. The AJ later found
these emails to be written and sent in an attempt to
embarrass Dubois and undermine his authority. A12-14.
The proposal stated that the removal was necessary due
to Whitmore’s “unprofessional, highly disruptive, and
totally unacceptable [behavior] in the workplace,” which
“severely undermined the confidence of OSHA manage-
ment in [his] judgment, and ability to carry out [his]
responsibilities in an appropriate manner . . . .” A764. It
concluded that Whitmore’s actions had “created a dys-
functional and fearful environment . . . .” A764. Mitigat-
ing factors, such as Whitmore’s long tenure as a good
employee, were considered, but were deemed outweighed
13 WHITMORE v. LABOR
by the seriousness of his conduct and his undermining
authority within OSHA. A765.
Witt’s 2009 proposal echoed the proposal authored in
2007 by Goddard. Indeed, the two proposals were so
substantively similar that on April 14, 2009, ten days
after the Witt proposal was completed, OSHA’s Robert
Poogach wrote an email to David Morgan specifically
questioning whether Witt’s proposal in fact reflected
Witt’s independent review and judgment:
I’m confident that we can make the case that this
is not tied to any protected activity . . . . I’m more
concerned that we drafted that proposal in No-
vember 2007 and that it then magically appeared
as Witt’s proposal in April 2009 . . . in large meas-
ure as drafted (with major subsequent tweaks)
originally. So dod [sic] Witt do an independant
[sic] read of teh [sic] facts or was he merely the guy
duped into signing what we had long ago decided?
A680 (second ellipsis in original) (emphasis added).
Nevertheless, Witt and Shalhoub claimed to have inde-
pendently reviewed the facts surrounding Whitmore’s
administrative leave, and Witt testified that he believed
“anything less than removal would continue the same
problem, expose people in [DOL] to Mr. Whitmore and
possible violence and intimidating behavior.” A122.
The decision to remove Whitmore was made final by
Shalhoub on July 13, 2009, and became effective July 31,
2009.
II. PROCEDURAL HISTORY
Whitmore challenged his removal at the MSPB, alleg-
ing that the removal was an act of retaliation for his
whistleblowing disclosures under 5 U.S.C. § 2302(b)(8).
He also alleged that, under 5 U.S.C. § 2302(b)(9), his
WHITMORE v. LABOR 14
removal was retaliation for his EEO testimony given in
2005, which implicated one of his managers in a discrimi-
nation case brought by a co-worker.
A. The AJ’s Exclusion of Witnesses from the Hearing
The AJ strictly limited the number of witnesses per-
mitted to testify at Whitmore’s hearing. Of Whitmore’s
twelve requested witnesses, the AJ only approved three:
Whitmore, Mark Kitzmiller, and Kie’arra Pretlow. 2 For
the DOL, the AJ approved Shalhoub, Witt, and Dubois.
The AJ’s rationale was that other than Whitmore and the
proposing and deciding officials, only those such as Kitz-
miller who had actually witnessed the July 10 incident
could offer sufficiently pertinent testimony. The AJ thus
treated the hearing as if it only functioned to examine the
proof of the charges and the reasonableness of the pen-
alty—not Whitmore’s whistleblower defense.
Among Whitmore’s nine excluded witnesses were
David Morgan and the witnesses interviewed during
Morgan’s investigation. These witnesses were offered to
show bias on the part of Morgan and OSHA officials
against Whitmore, as well as proof that the stated reasons
for Whitmore’s removal were a mere pretext for his being
removed due to his whistleblowing disclosures. The AJ
excluded these witnesses because she believed they “are
not material to the central issue in this matter, but rather
have only peripheral relevance . . . .” A75. Several of
those witnesses interviewed by Morgan were also offered
to testify as to Whitmore’s integrity, leadership, and
commitment to OSHA’s mission, as well as the alleged
2 Ms. Pretlow was an OSHA employee alleged to
have witnessed the July 10, 2007 incident, but she ulti-
mately did not testify at the hearing since she denied
having actually witnessed the event.
15 WHITMORE v. LABOR
harassment of Whitmore by Dubois and others creating a
hostile work environment to provoke Whitmore.
Another witness offer by Whitmore named Eleanor
Lauderdale was a non-OSHA DOL employee offered to
testify regarding a DOL manager whose act of physical
assault resulted in no discipline (and in fact the manager
was later promoted). The AJ excluded her testimony
because Whitmore failed to timely provide the AJ with a
detailed summary of Ms. Lauderdale’s testimony, as the
AJ had requested.
Also precluded by the AJ was the testimony of Dr.
Adam Finkel, another OSHA whistleblower investigated
by David Morgan and removed from his position, regard-
ing bias at OSHA against whistleblowers. A declaration
signed by Finkel attests to various matters about which
he would have testified at the hearing if given the oppor-
tunity. Finkel declared that certain OSHA officials had in
the past made threats of violence to coworkers such as
“[i]f you ever say that again, I’ll squeeze your head like a
grape until it explodes,” “I’m going to tear you limb from
limb,” and “I’m going to kill you,” but that “none was ever
taken seriously, and no discipline or other action resulted
from them.” A657-68. Finkel chalked all of this up to
being “products of the stress and tension that permeated
the Agency,” and commented that “[t]he senior leadership
at OSHA clearly regards such statements as unremark-
able, even funny, when they are made by favored col-
leagues.” A658. Finkel also recounted an instance where
an employee slammed a door so hard in Finkel’s office
that the hinges popped off and had to be replaced, but
Finkel never reported the incident since he believed that
no action would be taken against her. A657.
The AJ thus admitted only testimony as to the af-
firmative charges brought against Whitmore, and ex-
WHITMORE v. LABOR 16
cluded witnesses offered to support Whitmore’s affirma-
tive whistleblowing defense.
B. The Exclusion of Evidence Regarding Whitmore’s
EEO Defense
Whitmore raised an affirmative defense pursuant to 5
U.S.C. § 2302(b)(9) based on his participation in the 2005
EEO proceeding, in which he implicated OSHA official
Bob Pitulej, who later became Whitmore’s second level
supervisor, in discrimination claims. The AJ initially
bifurcated the hearing to address the EEO issue only if
the DOL failed to carry its burden to overcome Whit-
more’s whistleblower defense. After the hearing, the AJ
explained that she now recognized that Whitmore’s EEO
participation was offered not only as whistleblowing
activity to support Whitmore’s whistleblower defense
under § 2302(b)(8), but also to show retaliation for par-
ticipation in an EEO proceeding, a distinct defense under
§ 2302(b)(9) and therefore “a new claim, albeit based on
the same evidence.” A109. Accordingly, she deemed her
previous decision to exclude Whitmore’s EEO defense
from the hearing to be erroneous, and reopened the record
permitting Whitmore to submit additional evidence and
argument to support the EEO defense. The record does
not show that Whitmore submitted any new evidence or
argument in response to the AJ’s invitation.
C. The AJ’s Decision on Whitmore’s Whistleblower
Defense
The AJ correctly understood that in the burden shift-
ing scheme for whistleblower cases, the agency must first
prove its case for removal by a preponderance of the
evidence, 5 C.F.R. § 1201.56, then the former employee
must prove by a preponderance of the evidence that he or
she made a protected disclosure under 5 U.S.C. §
1202(b)(8) that was a contributing factor to the employee’s
17 WHITMORE v. LABOR
termination. If the employee establishes this prima facie
case of reprisal for whistleblowing, the burden of persua-
sion shifts to the agency to show 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). The AJ ultimately found that Whitmore had
made protected disclosures, and that these disclosures
were a contributing factor in the removal action. The AJ
rejected Whitmore’s whistleblower defense, however,
finding that he would have been removed regardless of his
whistleblowing disclosures. This appeal centers around
whether the DOL carried its burden to show by clear and
convincing evidence that it would have removed Whit-
more regardless of his protected disclosures.
1. The DOL’s Affirmative Case for Removal
The AJ determined that the DOL had proven all of
the charges against Whitmore by a preponderance of the
evidence, and that the penalty of removal was reasonable.
Nearly all of the critical facts surrounding the July 10,
2007 incident charge were admitted by Whitmore, and
regarding certain disputed facts—e.g., whether Dubois
intentionally spit on Whitmore—the AJ expressly found
Dubois to be a more credible witness than Whitmore and
concluded that Dubois’ spitting was unintentional. The
AJ found the July 10, 2007 incident to exhibit inexcusable
Disruptive and Intimidating Behavior by Whitmore as
charged. As stated by the AJ, “violence in the workplace
has an adverse effect on the agency’s mission as well as
its employees and cannot be tolerated.” A17. Whitmore’s
emails and door sign were likewise found to satisfy the
charges of Conduct Unbecoming a Supervisor and of
Inappropriate Conduct in the Workplace.
The AJ rejected Whitmore’s argument that his re-
moval must be set aside since Witt and Shalhoub relied
WHITMORE v. LABOR 18
heavily on the Morgan report, which Whitmore contended
was objectionable as biased and inherently untrust-
worthy. The AJ found that Witt and Shalhoub in fact
relied on considerable documentary evidence other than
the Morgan report to justify their decisions, and the AJ in
particular noted Shalhoub’s testimony that he did not
adopt Morgan’s conclusions and would have removed
Whitmore regardless of the report.
Citing Whitmore’s lack of remorse for his actions, his
belief that his conduct was justified due to the harass-
ment by Dubois, and the overall escalation of his inappro-
priate behavior, Shalhoub testified that no penalty short
of removal would be effective to avoid similar problems in
the future, and the AJ agreed. The removal penalty was
deemed reasonable given Whitmore’s supervisory position
and the seriousness and impropriety of his actions, which
fell “shockingly short” of the standards of integrity, judg-
ment, and professionalism expected of one holding such a
position, and which had a substantial negative effect on
the trust and confidence in Whitmore overall. A17-18.
2. The DOL’s Proof that Whitmore
Would have Been Removed Absent
his Whistleblowing Disclosures
The AJ next found that the DOL proved by clear and
convincing evidence that Whitmore would have been
removed regardless of his protected disclosures. A19-22.
To make this finding, the AJ applied the Carr factors for
determining whether an agency has met its burden via
clear and convincing evidence: “[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 whistle-
19 WHITMORE v. LABOR
blowers but who are otherwise similarly situated.” Carr v.
Soc. Security Admin., 185 F.3d 1318, 1323 (Fed. Cir.
1999).
As to the strength of the agency’s evidence in support
of Whitmore’s removal, since nearly all of the facts sur-
rounding Whitmore’s charges were admitted or supported
by documentary evidence which spoke for itself, the AJ
viewed the strength of the DOL’s evidence to be very
strong. The AJ again rejected Whitmore’s allegation that
the Morgan report was unreliable and unfairly prejudi-
cial, deeming the Morgan report “irrelevant to the charges
at issue here, since the charges did not arise from the
report or the witness statements, and their proof did not
depend on the validity, or not, of Morgan’s report.” A19.
In any event, the AJ found that despite Whitmore’s
allegations concerning Morgan’s bias and other impropri-
ety, merely referencing Morgan’s report or summarizing
facts contained therein did not import Morgan’s conclu-
sions into the charges against Whitmore.
The AJ next found insubstantial evidence to support a
finding of a retaliatory motive, since Witt and Shalhoub
were outside Whitmore’s chain of command, were not
directly implicated in any of Whitmore’s whistleblowing,
and had only limited knowledge of Whitmore’s whistle-
blowing disclosures.
Lastly, the AJ rejected Whitmore’s argument that he
was treated differently from similarly situated non-
whistleblowers, pointing in particular to Dubois who was
subject to no disciplinary action whatsoever. Although
Dubois also wrongfully engaged in argumentative conduct
with Whitmore, the AJ deemed Whitmore more at fault
for being the instigator and the one who threatened
physical violence. Thus, Dubois was not viewed as being
similarly situated to Whitmore for comparison purposes.
WHITMORE v. LABOR 20
Accordingly, the AJ concluded that the DOL had
proven by clear and convincing evidence that Whitmore
would have been removed regardless of his whistleblow-
ing.
D. The AJ’s Decision on Whitmore’s EEO Defense
The AJ rejected Whitmore’s EEO defense on the mer-
its. Although Whitmore contended that his hostile treat-
ment by Dubois, Goddard, and Pitulej (who was
implicated in Whitmore’s EEO affidavit) began after his
participation in the EEO proceeding, the AJ found that
Whitmore failed to prove any nexus between the EEO
proceeding and his removal, which were separated in time
by four years. In particular, the AJ noted that Pitulej had
no role in Whitmore’s removal, and that Witt and Shal-
houb were aware of Whitmore’s EEO participation only
because Whitmore raised the issue in his reply to his
proposed removal. The AJ found nothing in the record to
support Whitmore’s suggestion that Witt and Shalhoub
were influenced by Pitulej or any other OSHA officials
regarding a motive to retaliate for Whitmore’s EEO
participation.
* * *
The full board denied Whitmore’s petition for review,
and the AJ’s decision was made final. This appeal fol-
lowed. We have jurisdiction pursuant to 28 U.S.C. §
1295(a)(9).
III. DISCUSSION
By statute, we may set aside the judgment of the
MSPB if the decision is “(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) unsup-
ported by substantial evidence.” 5 U.S.C. § 7703(c). In
21 WHITMORE v. LABOR
exercising this limited scope of review, we do not consider
how we would have decided the case in the first instance,
and may not merely substitute our judgment for that of
the board. See Mendoza v. Merit Systems Protection Bd.,
966 F.2d 650, 653 (Fed. Cir. 1992).
As explained in detail below, in this case the AJ un-
duly focused both the hearing and her decision on the
DOL’s affirmative case for removal of Whitmore, to the
exclusion of Whitmore’s whistleblower defense. Because
we conclude that the MSPB abused its discretion regard-
ing evidentiary matters, and failed to adjudicate Whit-
more’s whistleblower defense in accordance with the law,
we vacate and remand for further proceedings in accor-
dance with the following discussion.
A. Background Law
The Whistleblower Protection Act of 1989 prohibits
retaliation for whistleblowing, and provides as follows:
Any employee who has authority to take, direct
others to take, recommend, or approve any per-
sonnel action, shall not . . . take or fail to take, or
threaten to take or fail to take, a personnel action
with respect to any employee or applicant for em-
ployment because of—
(A) any disclosure of information by an
employee or applicant which the employee
or applicant reasonably believes evi-
dences—
(i) a violation of any law, rule, or
regulation, or
(ii) gross mismanagement, a gross
waste of funds, an abuse of authority, or a
substantial and specific danger to public
health or safety, if such disclosure is not
WHITMORE v. LABOR 22
specifically prohibited by law and if such
information is not specifically required by
Executive order to be kept secret in the in-
terest of national defense or the conduct of
foreign affairs; or
(B) any disclosure to the Special Counsel,
or to the Inspector General of an agency or
another employee designated by the head
of the agency to receive such disclosures,
of information which the employee or ap-
plicant reasonably believes evidences—
(i) a violation of any law, rule, or
regulation, or
(ii) gross mismanagement, a gross
waste of funds, an abuse of authority, or a
substantial and specific danger to public
health or safety . . . .
5 U.S.C. § 2302(b)(8). Analysis of a whistleblower defense
takes place within a burden shifting scheme, wherein the
agency must first prove its case for removal by a prepon-
derance of the evidence, 5 C.F.R. § 1201.56, then the
former employee must prove by a preponderance of the
evidence that he or she made a protected disclosure under
§ 1202(b)(8) that was a contributing factor to the em-
ployee’s termination. If the employee establishes this
prima facie case of reprisal for whistleblowing, the burden
of persuasion shifts to the agency to show 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).
1. The “Clear and Convincing” Evidence Standard
The Supreme Court has explained that “[t]he purpose
of a standard of proof is to instruct the factfinder concern-
23 WHITMORE v. LABOR
ing the degree of confidence our society thinks he should
have in the correctness of factual conclusions for a par-
ticular type of adjudication.” California ex rel. Cooper v.
Mitchell Bros. Santa Ana Theater, 454 U.S. 90, 92-93
(1981) (citations and internal quotation marks omitted).
The “clear and convincing standard” is understood to be
“reserved to protect particularly important interests in a
limited number of civil cases.” Id. at 93. When enacting
the Whistleblower Protection Act of 1989, Congress
explained its reasoning for requiring clear and convincing
evidence as follows:
“Clear and convincing evidence” is a high burden
of proof for the Government to bear. It is intended
as such for two reasons. First, this burden of proof
comes into play only if the employee has estab-
lished by a preponderance of the evidence that the
whistleblowing was a contributing factor in the
action—in other words, that the agency action
was “tainted.” Second, this heightened burden of
proof required of the agency also recognizes that
when it comes to proving the basis for an agency’s
decision, the agency controls most of the cards—
the drafting of the documents supporting the deci-
sion, the testimony of witnesses who participated
in the decision, and the records that could docu-
ment whether similar personnel actions have been
taken in other cases. In these circumstances, it is
entirely appropriate that the agency bear a heavy
burden to justify its actions.
135 Cong. Rec. H747-48 (daily ed. Mar. 21, 1989) (ex-
planatory statement on Senate Amendment to S. 20).
Against this backdrop, there is no doubt that Congress
considered it very important that federal agencies be
required to clearly and convincingly rebut a prima facie
case of whistleblower retaliation, especially given the
WHITMORE v. LABOR 24
evidentiary disadvantages that face removed whistle-
blowers.
Whether evidence is sufficiently clear and convincing
to carry this burden of proof cannot be evaluated by
looking only at the evidence that supports the conclusion
reached. Evidence only clearly and convincingly supports
a conclusion when it does so in the aggregate considering
all the pertinent evidence in the record, and despite the
evidence that fairly detracts from that conclusion. See,
e.g., Li Second Family L.P. v. Toshiba Corp., 231 F.3d
1373, 1381 (Fed. Cir. 2000) (“When determining whether
[deceptive] intent has been shown by clear and convinc-
ing evidence, a court must weigh all evidence, including
evidence of good faith.”); Price v. Symsek, 988 F.2d 1187,
1196 (Fed. Cir. 1993) (vacating and remanding because
the Board failed to consider certain testimony, explaining
that under the clear and convincing evidence standard
“all of the evidence put forth by Price, including any of his
corroborated testimony, must be considered as a whole,
not individually, in determining whether Price conceived
the invention of the count before Symsek”) (emphasis in
original). It is error for the MSPB to not evaluate all the
pertinent evidence in determining whether an element of
a claim or defense has been proven adequately.
The Whistleblower Protection Act makes clear that
whistleblowing provides an important public benefit that
must be encouraged when necessary by taking away fear
of retaliation. Horton v. Dep’t of the Navy, 66 F.3d 279,
282 (Fed. Cir. 1995) (“The purpose of the Whistleblower
Protection Act is to encourage disclosure of wrongdoing to
persons who may be in a position to act to remedy it,
either directly by management authority, or indirectly as
in disclosure to the press.”). Yet Congress understood
that whistleblowers are at an evidentiary disadvantage in
proving their cases. In many instances, our review of
25 WHITMORE v. LABOR
whistleblower appeals turns on whether substantial
evidence exists to support the judgment of the MSPB.
However, we are unable to make such determinations if
the MSPB fails to provide an in depth review and full
discussion of the facts to explain its reasoning. Such a
complete evaluation of the facts is necessary in every case
because outside of written opinions and transcribed oral
statements, we have no basis to discern the reasoning of
the MSPB and decide whether there exists “such relevant
evidence as a reasonable mind might accept as adequate
to support a conclusion.” Massa v. Dep’t of Def., 815 F.2d
69, 72 (Fed. Cir. 1987) (internal quotation marks omit-
ted). If considerable countervailing evidence is manifestly
ignored or disregarded in finding a matter clearly and
convincingly proven, the decision must be vacated and
remanded for further consideration where all the perti-
nent evidence is weighed.
B. Witnesses Excluded from the Hearing
In general, “[p]rocedural matters relative to discovery
and evidentiary issues fall within the sound discretion of
the board and its officials.” Curtin v. Office of Pers.
Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 1988). “If an abuse
of discretion did occur with respect to the discovery and
evidentiary rulings, in order for petitioner to prevail . . .
he must prove that the error caused substantial harm or
prejudice to his rights which could have affected the
outcome of the case.” Id. In this case, the AJ excluded
numerous witnesses from the hearing that caused sub-
stantial harm and prejudice to Whitmore’s right and
ability to present a complete whistleblower defense under
Carr.
First, the AJ erred in summarily excluding David
Morgan and his interviewees from testifying at the hear-
ing. The AJ’s rationale for this exclusion was on rele-
WHITMORE v. LABOR 26
vance grounds, stating that the witnesses “are not mate-
rial to the central issue in this matter, but rather have
only peripheral relevance . . . .” A75; see also A19 (“I
found Morgan’s report of his investigation, and the em-
ployee interviews he attached to it, irrelevant to the
charges at issue here.”). The “central issue,” in her mind,
was the July 10, 2007 incident and the charges leveled
against Whitmore; she found the alleged bias and impro-
priety pervading the Morgan investigation was not rele-
vant to the charges. This was an abuse of discretion. The
first two Carr factors plainly deem the strength of the
agency’s evidence and the existence of any retaliatory
motive to be relevant considerations in determining
whether the DOL has proven that an employee would
have been removed regardless of his whistleblowing
disclosures. Carr, 185 F.3d at 1323. Whitmore was
entitled to introduce testimony calling into question the
veracity and reliability of Morgan’s report and the inter-
viewees’ statements therein, since at least some evidence
in the record suggests that Morgan’s report was relied on
by Witt and Shalhoub in their decision to remove Whit-
more. See, e.g., A748 (Witt’s proposed removal notice
stating that the situation revealed in Morgan’s report
formed “the basis for this proposal”); A138 (Witt admit-
ting that Morgan’s investigation formed “part of the
support for Specification 1” of Whitmore’s proposed re-
moval); A292-93 (Shalhoub admitting that he relied on
certain statements from the Morgan report). Indeed, the
proposed removal notice itself extensively summarizes
and quotes from the Morgan report. A756-63, A827-859.
The AJ moreover dismissed Whitmore’s contentions by
suggesting that there was “nothing inappropriate” about
Witt and Shalhoub relying on the witness statements
gathered by Morgan, as opposed to Morgan’s conclusions,
but this fails to account for Whitmore’s allegation that the
27 WHITMORE v. LABOR
statements themselves were selected in a biased fashion
and were tampered with by Morgan. A19-20.
Eleanor Lauderdale’s testimony was excluded because
Whitmore failed to timely provide the AJ with a detailed
summary of Ms. Lauderdale’s testimony, as the AJ had
requested. This was a reasonable request from the AJ,
intended to discern whether Ms. Lauderdale was being
offered as a mere character witness or for some other
purpose. We see no abuse of discretion in excluding Ms.
Lauderdale’s testimony on this basis.
Lastly, it was an abuse of discretion to exclude the
testimony of Dr. Finkel. Dr. Finkel was an OSHA whis-
tleblower previously removed from his position and inves-
tigated by David Morgan. Although the AJ does not
specifically explain her reasoning for excluding Finkel in
particular, it appears that this decision was based on
relevance grounds akin to those for excluding Morgan.
A75 (“The remaining lengthy list of proposed witnesses on
both sides were not approved since their proffered testi-
mony was not relevant to the issues set for hearing at this
time.”). Finkel’s testimony, to the extent it would show
bias on the part of Morgan or OSHA against whistleblow-
ers, was relevant to Carr factors one and two as it would
help to diminish the apparent strength of the agency’s
case against Whitmore and suggest a retaliatory motive.
Finkel’s testimony was also offered to discuss threats of
violence made by other OSHA officials with no repercus-
sions. This testimony would plainly be relevant under the
third Carr factor which examines “any evidence that the
agency takes similar actions against employees who are
not whistleblowers but who are otherwise similarly situ-
ated.” Carr, 185 F.3d at 1323. Whitmore was entitled to
offer this testimony to make his defense and attempt to
show that his threats of violence were treated differently
than threats made by non-whistleblower OSHA officials.
WHITMORE v. LABOR 28
In sum, we hold that it is an abuse of discretion to
categorically exclude all witnesses offered to testify as to
evidence under the Carr factors on relevance grounds.
Doing so prevents whistleblowers from effectively present-
ing their defenses, and leaves only the agency’s side of the
case in play. This can have a substantial effect on the
outcome of the case, and so constitutes harmful error.
C. Whitmore’s EEO Defense
On appeal, Whitmore contends that the AJ erred by
refusing discovery and disallowing witnesses and testi-
mony concerning Whitmore’s affirmative defense regard-
ing his participation in the EEO proceedings in 2005.
Whitmore claims that he was “unable to procure evidence
relevant to this claim in discovery, and was unable to
present a full case at the hearing, which would have
included evidence, testimony and questioning of other
witnesses about his EEO activity and the part it played in
his removal.” Whitmore Br. at 65. The AJ explained that
she understood Whitmore’s EEO defense as being “based
on the same evidence” as Whitmore’s whistleblower
defense, and Whitmore has identified nothing that would
distinguish the factual bases for the two. A109. Never-
theless, the AJ acknowledged her error after the hearing
and offered Whitmore the opportunity to place additional
evidence and argument into the record “solely on the
[EEO retaliation] issue,” the record being closed as to
Whitmore’s whistleblower defense. A110. It does not
appear that Whitmore subsequently attempted to intro-
duce any new evidence regarding his EEO defense, or that
any evidence or argument he offered was rejected. Nor
does Whitmore present any argument for why submitting
evidence or argument post-hearing would have been
insufficient to effectively make his EEO defense. In light
of the AJ’s giving Whitmore a meaningful opportunity to
complete the record, and Whitmore’s declining to take
29 WHITMORE v. LABOR
advantage of that opportunity, we see no reversible error
concerning Whitmore’s EEO defense.
D. Retaliatory Motive
The AJ found “no evidence” to support a finding of a
retaliatory motive, since Witt and Shalhoub were outside
Whitmore’s chain of command, were not directly impli-
cated in any of Whitmore’s whistleblowing, and had only
limited knowledge of Whitmore’s whistleblowing activity.
A21. The AJ noted in particular that both Witt and
Shalhoub denied that Whitmore’s whistleblowing disclo-
sures affected their decisions to remove him.
To find zero evidence suggesting any retaliatory mo-
tive on this record is to take an unduly dismissive and
restrictive view of Carr factor two: “the existence and
strength of any motive to retaliate on the part of the
agency officials who were involved in the decision.” Carr,
185 F.3d at 1323. Those responsible for the agency’s
performance overall may well be motivated to retaliate
even if they are not directly implicated by the disclosures,
and even if they do not know the whistleblower person-
ally, as the criticism reflects on them in their capacities as
managers and employees. See Carr, 185 F.3d at 1322-23;
Chambers v. Dep’t of the Interior, 116 M.S.P.R. 17, 55
(2011) (finding motive to retaliate because proposing and
deciding officials were high level officials and the disclo-
sures “reflected on both of them as representatives of the
general institutional interests of the agency”); Phillips v.
Dep’t of Transp., 113 M.S.P.R. 73, 83 (2010) (finding that
comments generally critical of agency’s leadership “would
reflect poorly on” officials “responsible for monitoring the
performance of the field staff and making sure that
agency regulations are carried out correctly and consis-
tently”).
WHITMORE v. LABOR 30
Various emails in the record show that both Witt and
Shalhoub, along with many other OSHA officials, were
closely following Whitmore’s whistleblowing disclosures
and the effect they were having on OSHA in compelling
OSHA to remedy the problems disclosed by Whitmore.
See, e.g., A524-25 (email from Dubois, copying Goddard,
forwarding Dave Schmidt’s comments on Whitmore’s
congressional testimony); A526 (email chain including
Goddard and Dubois concerning how to refute Whitmore’s
congressional testimony); A696-708 (email from Goddard
and received by OSHA officials including Dubois,
Poogach, Schmidt, and Shalhoub reprinting Charlotte
Observer article quoting Whitmore); A715-17 (email to
Goddard, Shalhoub and other OSHA officials forwarding
article quoting Whitmore entitled “OSHA Turns Blind
Eye to Underreporting”); A727 (email from Goddard to
OSHA officials attaching article quoting Whitmore, and
asking “Can an [sic] current employee on administrative
leave go on record in the media, as an agency subject
matter expert, discrediting the agency?”); A738-40 (Char-
lotte Observer article about congressional hearing sent to
Witt, Goddard and Dubois, pointing to “Whitmore state-
ments at the end”); A746-47 (email to Witt and Goddard
concerning media coverage of issues of underreporting
and worker safety on the Bay Bridge, which media cover-
age quotes Whitmore). This evidence plainly shows
awareness and concern regarding the substance of Whit-
more’s disclosures by many high-level OSHA managers,
including Witt and Shalhoub. Whitmore repeatedly cast
OSHA and, by implication, all of the responsible OSHA
officials, in a highly critical light by calling into question
the propriety and honesty of their official conduct.
When a whistleblower makes such highly critical ac-
cusations of an agency’s conduct, an agency official’s
merely being outside that whistleblower’s chain of com-
31 WHITMORE v. LABOR
mand, not directly involved in alleged retaliatory actions,
and not personally named in the whistleblower’s disclo-
sure is insufficient to remove the possibility of a retalia-
tory motive or retaliatory influence on the whistleblower’s
treatment. Since direct evidence of a proposing or decid-
ing official’s retaliatory motive is typically unavailable
(because such motive is almost always denied), federal
employees are entitled to rely on circumstantial evidence
to prove a motive to retaliate. McCarthy v. Int’l Boundary
& Water Comm., 116 M.S.P.R. 594, 613 (2011). Thus,
“[w]hen applying the second Carr factor, the Board will
consider any motive to retaliate on the part of the agency
official who ordered the action, as well as any motive to
retaliate on the part of other agency officials who influ-
enced the decision.” Id. at 624-25; see also Phillips, 113
M.S.P.R. at 82 (same). For example, the Board has held
that a “proposing official’s strong motive to retaliate may
be imputed to a deciding official” in some circumstances.
Chambers, 116 M.S.P.R. at 48 (citing Miller v. Dep’t of
Veterans Affairs, 92 M.S.P.R. 610, ¶¶ 19–20 (2002)).
Here, the AJ failed to consider the evidence suggest-
ing the existence of a retaliatory motive on the part of
OSHA officials aside from Witt and Shalhoub, such as
Dubois and Goddard, and the extent to which Witt and
Shalhoub might have been influenced by such other
OSHA officials. The record as discussed above includes
several years’ worth of evidence showing a pattern of
Whitmore’s whistleblowing disclosures followed by ad-
verse personnel actions taken against Whitmore by his
direct supervisors. Against this backdrop, Robert
Poogach’s April 14, 2009 email to David Morgan asks if
Witt, who had nothing to do with Whitmore previously,
may in fact have been “duped into signing [a removal
proposal for] what [other OSHA officials] had long ago
decided.” A680. Likewise, the Morgan report is alleged to
WHITMORE v. LABOR 32
have been written by Morgan, pursuant to OSHA’s desire
to avoid the appearance of retaliation, to contain a selec-
tive (if not falsified) version of the facts favorable to
OSHA. The record contains evidence that supports this
view of the circumstances surrounding Morgan’s investi-
gation. To the extent Morgan’s report reflects and per-
petuates retaliatory motives of the OSHA officials with
whom Morgan worked and communicated, the report
might also have influenced Witt and Shalhoub for pur-
poses of Carr factor two.
Under the AJ’s reasoning, however, allegations of re-
taliatory motive in this context can easily be dispelled if
the proposing and deciding officials are not directly
named in whistleblowing disclosures, are outside of a
whistleblower’s chain of command, and simply deny
having a retaliatory motive. We disagree. This reasoning
flies in the face of congressional intent, and is a perfect
example of why the agency is expected to carry a “high
burden” to prove that Whitmore would have been re-
moved regardless of his whistleblowing. 135 Cong. Rec.
H747-48. Whitmore is at a particularly severe eviden-
tiary disadvantage when it comes to proving the state of
mind of OSHA officials if a mere denial is sufficient to
remove the possibility of retaliatory motive. See id.
Whitmore also has no control over the identity of the
proposing and deciding officials or what documentation is
created or maintained, whereas the agency can direct the
course of an investigation and advantageously select
officials several degrees removed from the whistleblower
to help the agency’s case withstand judicial scrutiny. See
id. In this manner the agency can “build” a more defensi-
ble case, as Whitmore alleges was done via the removal
proposals and the Morgan report.
On this record, it is not unreasonable to suggest that
Witt and Shalhoub might have developed or at least been
33 WHITMORE v. LABOR
influenced by retaliatory motives to remove Whitmore. In
any event, the AJ clearly erred in finding that “no evi-
dence” in the record supports Whitmore on Carr factor
two. In fact, this finding is plainly inconsistent with the
AJ’s prior finding that “the timing of the agency’s actual
proposal to remove the appellant followed closely enough
to the appellant’s protected disclosures that one could
reasonably conclude that his whistleblowing disclosures
were a contributing factor in the agency’s removal action.”
A5.
On remand, the AJ must reconsider the record under
a more expansive view of what suffices to evidence the
existence or strength of retaliatory motive consistent with
this opinion, so that all the pertinent evidence may be
properly weighed.
E. Similarly Situated Non-Whistleblowers
Absent Finkel’s testimony concerning other actions by
OSHA officials, the AJ had only Dubois’s conduct for
comparison to Whitmore’s. Whitmore was removed,
whereas Dubois faced no disciplinary action. Under Carr
factor three, which inquires as to “any evidence that the
agency takes similar actions against employees who are
not whistleblowers but who are otherwise similarly situ-
ated,” the AJ believed that Dubois was not similarly
situated to Whitmore since Whitmore was the instigator
and the one who had threatened physical violence. A22;
Carr, 185 F.3d at 1323. Thus, no meaningful comparison
between the action taken against Whitmore and the lack
of action against Dubois was made in evaluating Whit-
more’s whistleblower defense.
Board precedent under Carr factor three takes a nar-
row view of what it means for employees to be “similarly
situated.” “For other employees to be deemed similarly
situated, the Board has held that all relevant aspects of
WHITMORE v. LABOR 34
the appellant’s employment situation must be ‘nearly
identical’ to those of the comparative employees.” Spahn
v. DOJ, 93 M.S.P.R. 195, 202 (2003). Regarding the
employees’ conduct, two employees are not similarly
situated if there are “differentiating or mitigating circum-
stances that would distinguish their misconduct or the
appropriate discipline for it.” Godesky v. Dep’t of Health
& Human Servs., 101 M.S.P.R. 280, 285-86 (2006).
We cannot endorse the highly restrictive view of Carr
factor three adopted by the AJ in this case. One can
always identify characteristics that differ between two
persons to show that their positions are not “nearly iden-
tical,” or to distinguish their conduct in some fashion.
Carr, however, requires the comparison employees to be
“similarly situated”—not identically situated—to the
whistleblower. To read Carr factor three so narrowly as
to require virtual identity before the issue of similarly
situated non-whistleblowers is ever implicated effectively
reads this factor out of our precedent.
Here, Dubois and Whitmore were both in supervisory
positions within the same branch of the same department
at OSHA. They even operated within the same chain of
command. Whitmore and Dubois were similarly situated
from an employment position and responsibility perspec-
tive. Compare with Carr, 185 F.3d at 1327 (“[T]he ‘sup-
port staff’ employees of the New Haven hearing office
were not similarly situated to Ms. Carr. Significantly,
those employees and the ALJs were supervised under
separate chains of command. More importantly, as an
ALJ, Ms. Carr held a position of trust and responsibility
that was entirely different from the positions of the em-
ployees who made complaints about her.”) (citations
omitted).
35 WHITMORE v. LABOR
In terms of their conduct, regardless of who initiated
or escalated the various altercations, the record supports
that both Whitmore and Dubois engaged in the same
inappropriate and unprofessional conduct and hostility to
large degree. The ultimate conditional threat of violence
made by Whitmore certainly distinguishes the two, but
for the most part Dubois’s conduct could well be consid-
ered the very same kind of disruptive and intimidating
behavior, conduct unbecoming a supervisor, and inappro-
priate conduct in the workplace for which Whitmore was
charged. Dubois yelled, spat, and was openly hostile to
Whitmore. Dubois also participated in perpetuating
argumentative email threads between himself and Whit-
more, copying uninvolved OSHA officials. To the extent
Whitmore’s conduct was the same as Dubois’s, but was
more frequent, serious, or unprofessional as a matter of
degree, any meaningful overall comparison also would
have had to weigh the evidence in the record suggesting
that Dubois was maliciously tampering with Whitmore’s
leave totals. Without weighing the evidence ourselves, we
simply illustrate that a meaningful comparison between
the conduct of Whitmore and Dubois can be made, but
was not made in this case.
For purposes of examining Carr factor three, the req-
uisite degree of similarity between employees cannot be
construed so narrowly that the only evidence helpful to
the inquiry is completely disregarded. Differences in
kinds and degrees of conduct between otherwise similarly
situated persons within an agency can and should be
accounted for to arrive at a well reasoned conclusion
regarding Carr factor three, particularly where, as here,
there was only a single person in the record for which a
comparison can be made (Finkel’s testimony having been
excluded). Despite ultimately finding no evidence of
similarly situated non-whistleblowers, even the AJ found
WHITMORE v. LABOR 36
Whitmore’s contentions concerning Dubois’s lack of any
disciplinary action to be his “strongest argument in sup-
port of his affirmative defense.” A21. Yet by deeming
Dubois not “similarly situated,” the AJ did not examine
how the disparity in treatment between Whitmore and
Dubois should inform the Carr factor three analysis.
The whistleblower statute is clear that even where
the charges have been sustained and the agency’s chosen
penalty is deemed reasonable, the agency must still prove
by clear and convincing evidence that it would have
imposed the exact same penalty in the absence of the
protected disclosures. 5 U.S.C. § 1221(e) (providing that
the agency must prove it would have taken “the same
personnel action in the absence of such disclosure”) (em-
phasis added). Perhaps the most helpful inquiry in
making this determination is Carr factor three, and its
importance and utility should not be marginalized by
reading it so narrowly as to eliminate it as a helpful
analytical tool.
To be clear, Carr does not impose an affirmative bur-
den on the agency to produce evidence with respect to
each and every one of the three Carr factors to weigh
them each individually in the agency’s favor. The factors
are merely appropriate and pertinent considerations for
determining whether the agency carries its burden of
proving by clear and convincing evidence that the same
action would have been taken absent the whistleblowing.
Carr, 185 F.3d at 1323; see Kalil v. U.S.D.A., 479 F.3d
821, 824 (Fed. Cir. 2007) (noting that “the [b]oard in
Geyer, identified several factors that may be considered,
including [the Carr factors].”) (emphasis added, internal
citation omitted). Indeed, the absence of any evidence
relating to Carr factor three can effectively remove that
factor from the analysis. See, e.g., McCarthy v. Int’l
Boundary and Water Comm.: U.S. & Mexico, 116 M.S.P.R.
37 WHITMORE v. LABOR
594, 626 (2011) (finding no evidence of the agency taking
similar actions against similarly situated non-
whistleblowers, and therefore concluding that “the third
Carr factor is not a significant factor for the Board’s
analysis in the instant appeal”); Sutton v. Dep’t of Justice,
94 M.S.P.R. 4, 13-14 (2003) (finding that whistleblower
was lawfully removed based on the evidence under Carr
factors one and two, where the record contained no evi-
dence of action taken against similarly situated non-
whistleblowers).
To the extent such evidence exists, however, the
agency is required to come forward with all reasonably
pertinent evidence relating to Carr factor three. Failure
to do so may be at the agency’s peril. As a practical
matter, the agency has far greater access to and control
over evidence of prior disciplinary action taken against its
employees than a whistleblower-employee typically does.
The agency should liberally produce this evidence not only
because any such evidence in its possession is plainly
relevant and discoverable, but also to help the agency
carry its overall burden to prove by clear and convincing
evidence that the personnel action taken against the
whistleblower would have been taken regardless of the
whistleblowing. Stated differently, the absence of any
evidence concerning Carr factor three may well cause the
agency to fail to prove its case overall. See Chambers, 116
M.S.P.R. at 88 (finding that “we are simply not left with a
‘definite and firm conviction’ that the agency would have
taken any action based on the sustained charges in the
absence of her protected disclosures” in large part because
the agency “did not show that it took similar actions
against similarly-situated non-whistleblowers”); Miller v.
Dep’t of Veterans Affairs, 92 M.S.P.R. 610, 621 (2002)
(“[A]lthough the Board of Investigation report provided
agency officials with evidence to support taking some
WHITMORE v. LABOR 38
disciplinary action against the appellants, this factor is
far outweighed by the strong motive to retaliate by agency
officials who were involved in these disciplinary actions
and the lack of evidence showing that the agency took
similar actions against otherwise similarly-situated non-
whistleblowers.”); Russell v. Dep’t of Justice, 76 M.S.P.R.
317, 327-328 (M.S.P.B. 1997) (“Weighing the three factors
. . . , we find that although the reporting officials had
strong evidence to support their reports concerning the
appellant, this factor is far outweighed by their strong
motive to retaliate and the lack of any evidence showing
that they treated non-whistleblower employees the same
way they treated the appellant.”).
On remand, the AJ must reconsider the evidence sur-
rounding Dubois’s conduct and lack of any repercussions,
along with the testimony of Dr. Finkel, in a manner
consistent with the scope of Carr factor three as expressed
herein.
F. Omissions from the AJ’s Decision
To reach her conclusions, the AJ focused strictly on
the three charges and various specifications against
Whitmore surrounding the July 10, 2007 incident, Whit-
more’s emails, and the sign Whitmore placed on his door.
Whitmore’s theory below and on appeal, however, is
essentially as follows. Beginning in 2005 when Whit-
more’s whistleblowing started, the DOL and various
managers at OSHA began to systematically create a
hostile work environment for him as retaliation, primarily
by making his ability to take leave to which he was enti-
tled very difficult, and preventing him from obtaining any
relief from other OSHA officials. Eventually, as intended
by the DOL, the stress of this environment caused Whit-
more such aggravation that he acted out in various ways
against his better judgment. David Morgan was then
39 WHITMORE v. LABOR
brought in as a hired gun to help build a case that would
withstand legal scrutiny for OSHA’s removal of Whit-
more. Witt and Shalhoub were then brought in to create
an appearance of impartiality in the proposing and decid-
ing officials, since they were both outside Whitmore’s
chain of command. This admittedly elaborate theory
finds considerable evidentiary support in the record, and
yet virtually none of the key evidence is acknowledged or
alluded to—let alone discussed—in the AJ’s decision.
While we do not presume to re-weigh the evidence on
appeal, we must note for the record at least the most
prominent evidence in support of Whitmore’s theory that
must be examined and re-weighed on remand pursuant to
the proper clear and convincing evidence standard.
First, while the AJ mentions the longstanding dispute
between Whitmore and Dubois regarding Whitmore’s
leave usage and balances, there is no discussion of the
fact that Whitmore’s leave totals were shown to be incor-
rect by 75 hours, and that testimony suggested this was
due to Dubois’s intentionally and maliciously altering
Whitmore’s time sheets. The AJ does not discuss the fact
that a mere two days after Whitmore reported Dubois’
illegal gambling activities using office resources, Dubois
removed Whitmore’s rating authority over his subordi-
nates. There is also no discussion of Robert Poogach’s
April 14, 2009 email to Dave Morgan indicating his confi-
dence that OSHA can “make the case that [Whitmore’s
removal] is not tied to any protected activity,” and ques-
tioning whether Witt was simply “duped into signing [a
removal proposal for] what we had long ago decided.”
A680. Nor is there any discussion of how OSHA wit-
nesses and their statements were selected and gathered
for Morgan’s investigation. The AJ makes no mention of
the fact that, although Morgan’s report was purportedly
an independent investigation to assist the DOL in its
WHITMORE v. LABOR 40
disciplinary determination regarding Whitmore, God-
dard’s initial proposal to remove Whitmore in 2007 was
authored two days prior to Morgan’s report. Of course,
the likely testimony of various witnesses excluded by the
AJ was also not discussed because those witnesses never
appeared at the hearing.
Perhaps most glaringly absent from the AJ’s decision
is any serious discussion of the facts and circumstances
surrounding how Whitmore’s whistleblowing in 2005
marked the beginning of his increasingly strained rela-
tionships with OSHA officials, and how his disclosures
paralleled his increasingly poor performance reviews and
adverse personnel actions after decades of exceptional
service. The AJ concluded that for purposes of Whit-
more’s prima facie case of whistleblower retaliation, “the
timing of the agency’s actual proposal to remove the
appellant followed closely enough to the appellant’s
protected disclosures that one could reasonably conclude
that his whistleblowing disclosures were a contributing
factor in the agency’s removal action.” A5. However, this
finding and the surrounding facts were never revisited in
the context of the agency’s burden to prove that it would
have taken the same action against Whitmore regardless
of his whistleblowing. The AJ did not consider the possi-
bility that the conduct upon which Whitmore’s removal
was premised might never have occurred but for the
DOL’s retaliatory actions creating a hostile work envi-
ronment for Whitmore. In exploring whether the DOL
would have removed Whitmore in the absence of his
whistleblowing, the AJ must concede this possibility and
examine the evidence that supports it. Otherwise, any
agency could take retaliatory action against whistleblow-
ers by creating a hostile work environment for the whis-
tleblower until the whistleblower acts out, then lawfully
41 WHITMORE v. LABOR
remove the whistleblower under the pretext of that later
conduct.
The AJ thus reasoned through her opinion in a man-
ner that ignores or overlooks essentially all of the evi-
dence offered to support Whitmore’s theory, and provides
no explanation for why such evidence was inappropriate
for consideration, unpersuasive, or otherwise not entitled
to any weight. While the DOL urges us to affirm the
MSPB’s judgment as supported by substantial evidence,
absent discussion in the AJ’s decision to account for
Whitmore’s theory and the evidence on which he relies,
we cannot meaningfully evaluate whether substantial
evidence exists to support the AJ’s conclusions. Substan-
tial evidence is “such relevant evidence as
a reasonable mind might accept as adequate to support a
conclusion.” Simpson v. Office of Pers. Mgmt., 347 F.3d
1361, 1364 (Fed. Cir. 2003) (citation omitted). Any de-
termination by an AJ that is based on findings made in
the abstract and independent of the evidence which fairly
detracts from his or her conclusions is unreasonable and,
as such, is not supported by substantial evidence.
While we acknowledge that the AJ may well have
considered the countervailing evidence and rejected or
discounted it for various reasons, with no basis in her
opinion to understand her logic, we cannot say that her
analysis is reasonable or complies with the law for how
proof by clear and convincing evidence is to be evaluated.
See Li Second Family, 231 F.3d at 1381; Price, 988 F.2d at
1196. Because considerable countervailing evidence was
manifestly ignored, overlooked, or excluded, we must
vacate and remand for consideration of all the evidence.
* * *
For the foregoing reasons, we conclude that the vari-
ous determinations and rulings of the AJ were “arbitrary,
WHITMORE v. LABOR 42
capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 7703(c)(1). We therefore
set aside the judgment of the MSPB and remand for
further proceedings not inconsistent with this opinion.
IV. CONCLUSION
The laws protecting whistleblowers from retaliatory
personnel actions provide important benefits to the pub-
lic, yet whistleblowers are at a severe evidentiary disad-
vantage to succeed in their defenses. Thus, the tribunals
hearing those defenses must remain vigilant to ensure
that an agency taking adverse employment action against
a whistleblower carries its statutory burden to prove—by
clear and convincing evidence—that the same adverse
action would have been taken absent the whistleblowing.
Despite Robert Whitmore’s highly unprofessional and
intimidating conduct, which may well ultimately justify
some adverse personnel action, he is nevertheless a bona
fide whistleblower. Mr. Whitmore is therefore entitled to
the full scope of protection afforded by the Whistleblower
Protection Act, which ensures for him and whistleblowers
everywhere that they need not fear retribution for disclos-
ing to the public such vital information concerning an
agency or official as “a violation of any law, rule, or regu-
lation, or . . . gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific
danger to public health or safety . . . .” 5 U.S.C.
§ 2302(b)(8). Congress decided that we as a people are
better off knowing than not knowing about such violations
and improper conduct, even if it means that an insubordi-
nate employee like Mr. Whitmore becomes, via such
disclosures, more difficult to discipline or terminate.
Indeed, it is in the presence of such non-sympathetic
employees that commitment to the clear and convincing
43 WHITMORE v. LABOR
evidence standard is most tested and is most in need of
preservation.
VACATED AND REMANDED