NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
ANTHONY ROGERS,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
__________________________
2012-3089
__________________________
Petition for review of the Merit Systems Protection
Board in case no. DA0752110058-I-1.
__________________________
Decided: July 13, 2012
__________________________
ANTHONY ROGERS, San Antonio, Texas, pro se.
BARBARA E. THOMAS, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC for respondent. With her
on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
SCOTT D. AUSTIN, Assistant Director.
__________________________
ROGERS v. VA 2
Before BRYSON, PROST, and REYNA, Circuit Judges.
PER CURIAM.
Petitioner Anthony Rogers appeals the decision of the
Merit Systems Protection Board (“Board”) affirming the
Department of Veterans Affairs’s (“Agency”) removal of
Mr. Rogers from his position as a human resource special-
ist. For the reasons set forth below, we affirm.
I. BACKGROUND
Mr. Rogers was a human resources specialist in the
San Antonio office of the Agency’s South Texas Health
Care System. In a letter of proposed removal dated
March 31, 2010, Mr. Rogers’s supervisor, Jerry A. Erwin,
proposed that Mr. Rogers be removed from Agency em-
ployment based on three charges. The first charge, “Al-
tering Official Government Documents,” related to actions
Mr. Rogers allegedly took when initiating the hiring of a
new employee. Specifically, the charge alleged that Mr.
Rogers copied a previously authorized SF-52 form for one
candidate and then used “white out” to enter a new can-
didate’s information on the form instead of filling out a
new, blank form for supervisory approval, thereby violat-
ing Agency policy requiring supervisor approval before
initiating a personnel action. The second charge, “Failure
to Safeguard Confidential Information,” was based on two
related specifications, both surrounding an alleged De-
cember 29, 2009 incident involving Mr. Rogers and an
Agency employee, Charles Harpel. The first specification
alleged that Mr. Rogers provided Mr. Harpel with Mr.
Rogers’s own Social Security number and passwords to
access human resources databases containing confidential
information, even though Mr. Harpel was not authorized
to access the database. The second specification alleged
that Mr. Rogers asked Mr. Harpel to use Mr. Rogers’s
3 ROGERS v. VA
login information to download a referral certificate (i.e., a
document listing applicants for a vacancy) from a human
resources database. According to the specification, the
information in the referral certificates contained confiden-
tial information, and giving Mr. Harpel access to such
information would have resulted in privacy violations. 1
Finally, the third charge, “Failure to Follow Instructions,”
alleged that Mr. Rogers released referral certificates to an
Agency component without supervisor approval after
having been specifically instructed not to release person-
nel documents without such prior approval.
Approximately three weeks after the date of the letter
of proposed removal, Mr. Rogers submitted a filing with
the U.S. Office of Special Counsel alleging, inter alia, that
he previously filed a complaint with the Board in which
he claimed to be a whistleblower subject to retaliation;
after the filing of his whistleblowing complaint, he noti-
fied his supervisors of violations of Agency policies by
certain Agency employees; and he had been served with a
proposed removal and placed on authorized leave status.
Then, on April 26, 2010, Mr. Rogers submitted his
written response to the charges in the removal letter,
stating that “[t]he Agency is aware that I am a whistle-
blower with pending hearings” and that an adverse per-
sonnel action “must not be taken as a reprisal for the
proper exercise of my legal or administrative appeal
rights.” J.A. 52. He attached his previous filing with the
Office of Special Counsel as an exhibit to his response.
1 The administrative judge ultimately merged
these two specifications, finding that they were based on
the same conduct. Rogers v. Dep’t of Veterans Affairs, No.
DA0752110058-I-1, at 11 (M.S.P.B. Feb. 16, 2011).
ROGERS v. VA 4
Marie L. Weldon, the deciding official on Mr. Rogers’s
removal, sustained the proposed removal in a letter dated
June 17, 2010, and Mr. Rogers was removed from Federal
service on June 25, 2010. Mr. Rogers appealed his termi-
nation to the Board. After holding a hearing, the admin-
istrative judge issued an initial decision sustaining the
Agency’s removal. Rogers v. Dep’t of Veterans Affairs, No.
DA0752110058-I-1 (M.S.P.B. Feb. 16, 2011) (“Initial
Decision”). In reaching that decision, the administrative
judge rejected Mr. Rogers’s affirmative defense that his
removal was an impermissible reprisal against him for
whistleblowing, finding that the Agency had presented
clear and convincing evidence that it would have removed
Mr. Rogers in the absence of any protected disclosures.
The Board denied Mr. Rogers’s petition for review, Rogers
v. Dep’t of Veterans Affairs, No. DA0752110058-I-1
(M.S.P.B. Dec. 23, 2012), and the initial decision accord-
ingly became the decision of the Board. Mr. Rogers has
appealed, and we have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
II. DISCUSSION
Our review of the Board’s decision is limited by stat-
ute. We must affirm a Board decision unless it is (1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence. 5
U.S.C. § 7703(c). “[A]n agency may take adverse action
against any employee whose misconduct harms the effi-
ciency of its service.” Pope v. U.S. Postal Serv., 114 F.3d
1144, 1148 (Fed. Cir. 1997). When taking such adverse
action, an agency must prove the charged misconduct by a
preponderance of the evidence. Id.
5 ROGERS v. VA
With respect to the first charge, Mr. Rogers argues,
inter alia, that the Agency failed to prove that he know-
ingly supplied false information with the intention of
defrauding the Agency. As the Agency correctly explains,
however, Mr. Rogers was not charged with supplying false
information but rather with altering an official document
in violation of Agency policy. Because the Agency only
needs to prove the misconduct it chooses to charge, see,
e.g., Pope, 114 F.3d at 1148, the Agency did not need to
prove that Mr. Rogers acted with an intent to defraud.
With respect to the second charge, Mr. Rogers chal-
lenges the Board’s factual findings that the alleged con-
duct occurred. These findings are based on the
administrative judge’s credibility determinations, which
are “virtually unreviewable” on appeal, see, e.g., Cham-
bers v. Dep’t of Interior, 515 F.3d 1362, 1370 (Fed. Cir.
2008), and are supported by substantial evidence, includ-
ing testimony from Mr. Harpel, see Initial Decision at 9.
Consequently, Mr. Rogers’s arguments are not persua-
sive.
With respect to the third charge, Mr. Rogers argues
that the Agency failed to prove that he intended to disre-
gard the Agency’s instructions. Mr. Rogers’s intent,
however, is not an element of a failure to follow instruc-
tions charge. Parbs v. U.S. Postal Serv., 107 M.S.P.R.
559, 564 (2007), aff’d, 301 F. App’x 923 (Fed. Cir. 2008)
(“Unlike a charge of insubordination, a charge of failure to
follow instructions does not require proof that the failure
was intentional.”). Thus the Agency was not required to
establish Mr. Rogers’s intent to prove this charge. Mr.
Rogers further argues that the Board erred in making
certain factual findings, such as the finding that Mr.
Rogers knew about the Agency’s requirement that referral
certificates must be approved by an authorized supervisor
ROGERS v. VA 6
before being released to a hiring component. Like the
findings made in connection with the second charge, these
findings are based on credibility determinations and are
supported by substantial evidence, including the testi-
mony of Agency employees at the hearing. See Initial
Decision at 12-14. Consequently, for the above reasons,
we have no basis to disturb the Board’s conclusion that
the Agency proved the three charges by a preponderance
of the evidence.
Mr. Rogers’s arguments related to his whistleblowing
affirmative defense similarly lack merit. To establish an
affirmative defense of retaliation under the Whistleblower
Protection Act, a petitioner must show that (1) he made a
disclosure protected under 5 U.S.C. § 2302(b)(8), and (2)
the protected disclosure was a contributing factor in the
agency’s personnel action. Ellison v. Merit Sys. Prot. Bd.,
7 F.3d 1031, 1034 (Fed. Cir. 1993). Once a petitioner
makes a prima facie showing, the agency must prove by
clear and convincing evidence that it would have taken
the same personnel action in the absence of the protected
disclosure. 5 U.S.C. § 1221(e)(2).
Here, although the Board found that Mr. Rogers es-
tablished that he made protected disclosures and that
those disclosures were a contributing factor in his re-
moval, it ultimately determined that the Agency would
have removed Mr. Rogers in the absence of any whistle-
blowing activity. On appeal, Mr. Rogers challenges the
Board’s factual findings that Agency officials were un-
aware of Mr. Rogers’s whistleblowing activities prior to
his proposed removal and that there was no evidence that
similarly situated employees were treated more favorably.
Again, these findings involve credibility determinations,
and the record contains substantial evidence to support
these findings.
7 ROGERS v. VA
Mr. Rogers’s remaining arguments do not warrant a
different result. Consequently, for the reasons set forth
above, the decision of the Board is affirmed.
COSTS
Each party shall bear its own costs.
AFFIRMED