Sherrill Carvalho v. Department of Justice

Court: Merit Systems Protection Board
Date filed: 2023-01-10
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                      UNITED STATES OF AMERICA
                   MERIT SYSTEMS PROTECTION BOARD


SHERRILL A. CARVALHO,                           DOCKET NUMBER
              Appellant,                        SF-1221-15-0208-W-2

             v.

DEPARTMENT OF JUSTICE,                          DATE: January 10, 2023
            Agency,

             and

OFFICE OF SPECIAL COUNSEL
              Intervenor. 1



        THIS FINAL ORDER IS NONPRECEDENTIAL 2

      Adam Herzog, Esquire, Avi Kumin, Esquire, and Colleen Coveney,
        Esquire, Washington, D.C., for the appellant.

      Carol L. Shea, Esquire, Charles M. Kersten, Esquire, and Evan Harry
        Perlman, Washington, D.C., for the agency.

      Wojun Lee, Esquire, and Joseph E. Siegelman, Esquire, Oakland,
       California, for the intervenor.

      Henry J. Kerner, Washington, D.C., for the intervenor.

1
  The Special Counsel, pursuant to 5 U.S.C. § 1212(c)(2) and 5 C.F.R. § 1201.34(b)(2),
moved to intervene in this case as a matter of right upon o btaining the consent of the
appellant. Carvalho v. Department of Justice, MSPB Docket No. SF-1221-15-0208-W-
1, Initial Appeal File (IAF), Tab 4. The administrative judge granted the motion. IAF,
Tab 9.
2
   A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                         2

                                            BEFORE

                                Cathy A. Harris, Vice Chairman
                                  Raymond A. Limon, Member
                                   Tristan L. Leavitt, Member
                              Member Leavitt recused himself and
                      did not participate in the adjudication of this appeal.

                                        FINAL ORDER

¶1         The appellant and the intervenor have filed petitions for review, and the
     agency has filed a cross petition for review of the initial decision, which denied
     the appellant’s request for corrective action in this individual right of action
     (IRA) appeal. Generally, we grant petitions such as these only in the following
     circumstances: the initial decision contains erroneous findings of material fact;
     the initial decision is based on an erroneous interpretation of statute or regulation
     or the erroneous application of the law to the facts of the case; the administrative
     judge’s rulings during either the course of the appeal or the initial decision
     were not consistent with required procedures or involved an abuse of discretion,
     and the resulting error affected the outcome of the case; or new and material
     evidence or legal argument is available that, despite the petitioner’s due
     diligence, was not available when the record closed.          Title 5 of the Code of
     Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).               After fully
     considering the filings in this appeal, we conclude that the parties have not
     established any basis under section 1201.115 for granting the petition s or cross
     petition for review. Therefore, we DENY the petition s for review filed by the
     appellant and intervenor and the cross petition for review filed by the agency and
     AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
     § 1201.113(b).

                                        BACKGROUND
¶2         The appellant, a former Assistant United States Attorney (AUSA), filed a
     timely IRA appeal alleging that she made protected disclosures that were
                                                                                            3

     contributing factors in the agency’s actions to place her on a performance
     improvement plan (PIP), to propose her removal for performance reasons, and to
     issue a removal decision letter based on those performance reasons. Carvalho v.
     Department of Justice, MSPB Docket No. SF-1221-15-0208-W-1, Initial Appeal
     File (IAF), Tab 1 at 10, 64, 68. 3 The appellant asserted that she made protected
     disclosures to an attorney with the agency’s Professional Responsibility Advisory
     Office (PRAO) and to her second-level supervisor, informing them that a fellow
     AUSA may have had an ethical obligation to report to the judge in a criminal case
     the fellow AUSA’s knowledge of ex parte contacts that occurred between defense
     counsel in the trial and an alternate juror but had not done so and was not inclined
     to do so. Id. at 10, 62, 64; IAF, Tab 55 at 6.
¶3         After a hearing, the Board’s administrative judge denied the appellant’s
     request for corrective action. Carvalho v. Department of Justice, MSPB Docket
     No. SF-1221-15-0208-W-2, Appeal File (W-2 AF), Tab 25, Initial Decision (ID)
     at 2, 36.   The administrative judge found that, after a guilty verdict in the
     criminal trial at issue, the jury informed the fellow AUSA who prosecuted the
     case that defense counsel had made an alternate juror uncomfortable by making
     such comments to her outside of the courtroom as, “Do you have the time?” or
     “You don’t mind if I share this elevator?” ID at 5. The administrative judge
     found that, after the fellow AUSA later mentioned the juror contact issue and
     other misbehavior of defense counsel to colleagues, including the appellant,
     during a hallway conversation at work, the appellant worried that she might have

     3
       The agency issued a January 12, 2009 decision letter effecting the appellant’s removal
     upon receipt of the letter. IAF, Tab 11 at 26, 34. Nevertheless, the agency
     retroactively reinstated the appellant and placed her on administrative leave pending the
     intervenor’s investigation of her whistleblower complaint. IAF, Tab 24 at 1 -2, Tab 42
     at 23. Effective May 23, 2009, the agency terminated the appellant’s appointment
     pursuant to 5 C.F.R. part 715, which covers voluntary separations such as resignations.
     IAF, Tab 11 at 24. Effective May 24, 2009, the appellant was appointed to an
     Attorney-Advisor position with the Social Security Administration, id. at 22, where she
     later served as an administrative law judge, IAF, Tab 42 at 23; Hearing Transcript (HT)
     at 282 (testimony of the appellant).
                                                                                          4

     a personal duty as an officer of the court to report the ex parte juror contact to the
     judge in the case.    ID at 6-7.    The administrative judge noted that, after the
     appellant contacted the PRAO attorney and her second-level supervisor, PRAO
     ultimately contacted higher-level management and informed them that, depending
     on the context, the prosecutor “could have a duty to report that contact to the
     court.”   ID at 7-9.       After the Professional Responsibility Officer at the
     U.S. Attorney’s Office was consulted and recommended disclosing the contact to
     the court, the prosecutor did so; the judge in the criminal case, however, took no
     further action. ID at 9-10.
¶4         The administrative judge found that the appellant was not aware of the
     existence of any applicable California Rule of Professional Conduct when she
     contacted PRAO and called PRAO only to seek advice as to whether she had a
     personal obligation to report what she had heard in the hallway. ID at 10 -11.
     The administrative judge further found that, although the appellant did not know
     when she spoke with the PRAO attorney or her second-level supervisor whether
     the ex parte contact had been reported to the court, she did not believe that the
     information had been disclosed to the court. ID at 11. The administrative judge
     concluded that, “while it is reasonable to conclude that the appellant’s
     communications with PRAO and [her second-level supervisor] did not constitute
     disclosures of the type meant to be protected under 5 U.S.C. § 2302, in light of
     the extremely liberal analysis required to be applied in such cases, I find that they
     were protected under the statute.” ID at 11. The administrative judge further
     found that the appellant proved that her disclosures were a contributing factor in
     the personnel actions because management officials were aware of the disclosures
     and took the actions within a period of time such that a reasonable person co uld
     conclude that the disclosures were a contributing factor. ID at 12.
¶5         Nevertheless, the administrative judge held that the agency proved by clear
     and convincing evidence that it would have taken the same actions absent the
     appellant’s disclosures.      ID at 36.   The administrative judge found that the
                                                                                  5

agency’s evidence supporting its performance-based action was “ample” and
sufficient to comprise substantial evidence, that it was clear the appellant’s
performance had been perceived as declining in the years leading up to the PIP,
that those performance issues had been discussed repeatedly with the appellant,
and that resorting to a PIP had not only been actively contemplated and pursued
but discussed with the appellant long before she contacted PRAO and shortly
thereafter before those who approved the PIP knew of that contact. ID at 14-29.
The administrative judge also held that the agency’s motive to retaliate was
“scant” and “exceedingly weak” because there was no evidence of harm to the
supposed retaliators, the information disclosed was “innocuous,” the attorneys
who may have been concerned about the matter had no role in the PIP or other
agency actions, PRAO merely gives advice or suggestions such that “no AUSA
would fear its involvement in their cases, as one might the Office of Professional
Responsibility or the Office of Inspector General,” and the issue raised by the
appellant to the PRAO attorney was thoroughly concluded with no adverse
consequences to anyone by the time the decision was made to place the appellant
on the PIP.   ID at 29-34.   The administrative judge further found that it was
exceedingly difficult to believe that the disclosures created a level of animus that
would:
      move an entire high-level chain of command of busy professionals to
      fabricate the need for the extremely laborious and time-consuming
      process of gathering numerous examples of performance
      deficiencies, marshalling them into a lengthy and detailed PIP letter,
      spending many hours over the course of months working with the
      appellant, and finally drafting a 30-page proposal notice, with
      hundreds of pages of attached documentation.
ID at 34. Finally, the administrative judge found that the agency had placed three
other AUSAs on PIPs since 2003, none of those employees were whistleblowers,
and the agency therefore showed that it had taken similar actions against
nonwhistleblowers who were otherwise similarly situated to the appellant. ID
at 34-35.
                                                                                       6

                     DISCUSSION OF ARGUMENTS ON REVIEW
     The Agency’s Cross Petition for Review
¶6        The agency asserts that the administrative judge incorrectly found that the
     appellant had a reasonable belief that she made a protected disclosure. Petition
     for Review (PFR) File, Tab 8 at 4-5. In particular, the agency asserts that the
     appellant was not aware of California Rule of Professional Conduct 5-320, which
     addresses contact with jurors, when she made her disclosures. Id. at 8-9, 12. The
     agency also contends that the appellant has not suggested that she believed that
     the U.S. Attorney’s Office or the fellow AUSA violated any other law, rule, or
     regulation by not immediately reporting the ex parte contact to the court.      Id.
     at 12-13.
¶7        In general, a protected disclosure must identify a specific law, rule, or
     regulation that was violated.   Langer v. Department of the Treasury, 265 F.3d
     1259, 1266 (Fed. Cir. 2001). Nevertheless, this requirement does not necessitate
     identifying a statutory or regulatory provision by title or number when the
     employee’s statements and the circumstances surrounding the making of those
     statements clearly implicate an identifiable violation of law, rule, or regulation.
     Id. Here, we find that the appellant’s disclosures that a fellow AUSA had not
     notified the court of his knowledge of an ex parte contact between defense
     counsel and a juror during a criminal trial clearly implicated the question of
     whether the fellow AUSA had an ethical obligation to do so under the California
     Rules of Professional Conduct. See Cal. Rule of Prof. Conduct 5-320(B) (noting
     that during trial a member connected with the case shall not communicate directly
     or indirectly with any juror), 5-320(G) (requiring a member to reveal promptly to
     the court improper conduct toward a person who is a juror of which the member
     has knowledge). Any failure by the appellant to identify a specific law, rule, or
     regulation when making the disclosures does not, therefore, mean that she did not
     reasonably believe that an ethical rule had been violated. See Langer, 265 F.3d
     at 1266 (finding that “Langer’s mentioning to the AUSAs and his supervisor that
                                                                                         7

     he believed there was a problem with a disproportionately high number of African
     Americans being prosecuted clearly implicated the question of selective
     prosecution and sufficiently raised possible violations of civil rights to constitute
     a protected disclosure”); Benton-Flores v. Department of Defense, 121 M.S.P.R.
     428, ¶¶ 7, 9-10 (2014) (finding protected disclosures concerning staff mistreating
     students, even when the disclosures did not reference a law, rule, or reg ulation,
     because the agency’s regulations clearly mandated the safety and security of staff
     and students); Baldwin v. Department of Veterans Affairs, 113 M.S.P.R. 469,
     ¶¶ 16-21 (2010) (finding protected a disclosure of a physical threat of harm, even
     though the disclosure did not identify a law, rule, or regulation); Mogyorossy v.
     Department of the Air Force, 96 M.S.P.R. 652, ¶¶ 12-13 (2004) (finding protected
     a disclosure that the agency failed to give its employees breaks, even absent a
     reference to a specific law, rule, or regulation); Kalil v. Department of
     Agriculture, 96 M.S.P.R. 77, ¶ 16 (2004) (finding protected a disclosure that
     could reasonably be regarded as evidencing an obstruction of justice violation,
     even though the appellant did not cite any specific law, rule, or regulation);
     Salinas v. Department of the Army, 94 M.S.P.R. 54, ¶ 8 (2003) (finding protected
     a disclosure that a coworker was working on personal items when he should have
     been performing agency work, even though the appellant did not identify a
     specific regulatory violation). Because we agree with the administrative judge
     that the appellant reasonably believed that failing to report the ex parte contact
     implicated certain ethical obligations, she need not also have believed that such
     failure violated another law, rule, or regulation.
¶8         The agency further claims that the appellant called PRAO only to seek its
     advice as to whether she might have a personal obligation to report what she
     heard, not to reveal agency misconduct, and that she similarly spoke to her
     second-level supervisor in an attempt to follow PRAO’s instructions, not because
     she believed that any agency employee had violated a law, rule, or regulation.
     PFR File, Tab 8 at 13-14. We disagree. As set forth below, the appellant, while
                                                                                             8

     seeking advice as to her own obligations, also indicated that an AUSA had not
     reported and/or was not inclined to report the ex parte contact himself. Moreover,
     the appellant’s motive for making her disclosures, such as obtaining advice for
     herself, does not exclude them from protection. 5 U.S.C. § 2302(f)(1)(C); 4 see
     Ayers v. Department of the Army, 123 M.S.P.R. 11, ¶ 20 (2015).
¶9         The appellant testified that she told the PRAO attorney on March 11, 2008,
     “what the AUSA had told me,” which was that he “wasn’t inclined” to report the
     ex parte contact to the court. HT at 382-83, 386 (testimony of the appellant).
     The appellant testified that she told the PRAO attorney
           that another prosecutor in my office informed me and some others
           who were there that . . . he had been told after the verdict . . . by
           members of the jury that there had been communications between
           . . . the defense attorney and a juror on several occasions; and that
           the juror was made very uncomfortable by that; and that this
           prosecutor had indicated that the other members of the jury who
           heard about this advised her to let the judge know but that she had
           not, and that none of the other members of the jury had advised the
           court either; and that the prosecutor in my office had not notified the
           court.
     Id. at 386-87. The appellant wrote contemporaneous notes of her discussion with
     the PRAO attorney, which indicate the appellant’s having reported that she and
           some of my colleagues heard another colleague tell us about talking
           to the jury after a guilty verdict in his trial. He said that one juror
           told him that the defense attorney approached her several times
           outside of the jury proceedings [and] that made her uncomfortable.
           She told some of the other jurors who encouraged her to tell the
           judge. She said she didn’t tell the judge. I [and] 2 other of my
           colleagues encouraged this attorney to tell the presiding judge about
           it. He responded that he was not inclined to do that. PRAO attorney

     4
        Section 2302(f)(1)(C) was enacted as part of the Whistleblower Protection
     Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, § 101, 126 Stat. 1465, 1466.
     The Board held in Day v. Department of Homeland Security, 119 M.S.P.R. 589, ¶¶ 9-23
     (2013), that section 101 was a clarification of existing law and applied retroactively. In
     any event, even prior to the passage of the WPEA, the Board recognized that an
     appellant’s motive for making a disclosure was not relevant to whether that disclosure
     was protected. Molinar v. Department of Veterans Affairs, 80 M.S.P.R. 248, ¶ 9 (1998).
                                                                                           9

            asked if I’d talked to my supervisor about [it]. I told her that he was
            present when [my] colleague talked about it. I told her I wanted to
            know if I had a responsibility to do anything about [it]. She said she
            would look into it [and] be back in touch w[ith] me. She asked if
            this was a recent event. I said it occurred last week.
      W-2 AF, Tab 14, OSC Exhibit (Ex.) 213 at 104-05. The AUSA did not deny
      stating that he was not inclined to report the ex parte contact; rather, he testified
      that he did not recall making that statement.       HT at 48-49 (testimony of the
      AUSA).
¶10         The appellant further testified that, although she was not aware of a specific
      name or number of a rule that required the reporting of the ex parte contact, she
      knew that the judge in question had required such reporting in previous cases, she
      considered herself an officer of the court, and she believed that failing to report
      the ex parte contact “was a violation of ethical responsibility, ethics.”         HT
      at 384-85 (testimony of the appellant). She testified that she called PRAO to seek
      advice as to what duty she had in that situation and that she did not tell the PRAO
      attorney which AUSAs had worked on the case because she was not calling “for
      the explicit purpose of getting anyone in trouble.” HT at 387, 395 (testimony of
      the appellant). She testified that the PRAO attorney mentioned a rule of candor
      with the court as well as a California bar rule requiring the reporting of the ex
      parte contacts to the court. HT at 396 (testimony of the appellant). She testified
      that she told the PRAO attorney that she did not know if the agency might report
      it in the future, but that up to that point she believed that it had not been reported
      to the court. HT at 397 (testimony of the appellant).
¶11         The PRAO attorney testified that she did not “think” the appellant tol d her
      that her fellow AUSA was not inclined to report the ex parte contact and that her
      recollection was that the appellant did not know whether it was going to be
      reported. HT at 1623-24 (testimony of the PRAO attorney). She nevertheless
      testified that, when she completed a summary sheet of her conversation with the
      appellant, she believed that the question of whether the ex parte contact was
                                                                                        10

      going to be reported or had been reported was sti ll “a work in progress.” HT
      at 1624 (testimony of the PRAO attorney). In fact, an inquiry summary sheet
      indicates that the PRAO attorney initially suggested to the appellant that she,
            tell the Prosecutor or a supervisor that she had contacted PRAO to
            discuss whether she had any obligations to report the information she
            had heard, and that she had been advised by PRAO that, depending
            on all of the relevant facts, the contact may need to be reported to the
            court by the AUSA who had experienced the contact or by a
            supervisor.
      W-2 AF, Tab 24 at 6. The PRAO attorney’s indication in the inquiry summary
      sheet—that the appellant should tell the AUSA in question that he may need to
      report the contact—supports the appellant’s contention that she informed the
      PRAO attorney that the AUSA had not reported the ex parte contact t o the court.
      The appellant also testified that, when she spoke with her second -level
      supervisor, HT at 917, she “told him that I was still thinking or concerned that the
      ex parte contact that [her fellow AUSA] had talked about after the . . . trial and
      that he had talked about just the week before, I said I was —I was still concerned
      that I thought this matter needed to be reported to the court,” HT at 392
      (testimony of the appellant).     The second-level supervisor testified that the
      appellant expressed her concern to him about the juror contact.         HT at 977
      (testimony of the second-level supervisor).       Thus, we find that the record
      evidence establishes that the appellant, in making her disclosures, not only
      requested advice regarding whether she had a duty to report the ex parte contact
      but also disclosed and expressed her concern that her fellow AUSA had not or
      was not inclined to do so.
¶12        The agency further contends that any belief the appellant may have had that
      she disclosed a violation of law, rule, or regulation was not reasonable because
      she was “acting on a fragment of a conversation that she had heard in the hallway
      a week prior,” she did not know whether her fellow AUSA had reported the ex
      parte contact to the court, she sent an email to the PRAO attorney noting that the
                                                                                            11

      AUSA did not indicate whether he intended to notify the judge, and the PRAO
      attorney testified that she did not have enough information to determine whether
      the AUSA had violated a rule. PFR File, Tab 8 at 15-16. The agency contends
      that additional facts were readily ascertainable if the appellant had spoken to the
      AUSA between the date of the hallway conversation and her telephone call to the
      PRAO attorney, such as the fact that the AUSA intended to research his
      responsibilities and “explore the matter further.” Id. at 16-17. 5
¶13         As set forth above, the appellant had sufficient information to reasonably
      believe that the AUSA in question had not reported the ex parte contact to the
      court, even though he was obligated to do so under ethics rules. The agency has
      not shown that the appellant was required to contact the AUSA an additional time
      to ascertain whether his intentions regarding not reporting the ex parte contact to
      the court had changed. See Conrad v. Department of Justice, 99 M.S.P.R. 636,
      ¶¶ 10, 13-14 (2005) (finding that the appellant was not required to confront the
      alleged wrongdoers to establish that his belief was reasonable and that an
      employee need not prove an actual violation to establish that he had a reasonable
      belief that his disclosure met the statutory criteria). Under these circumstances,
      we find that the agency has shown no error in the administrative judge’s finding
      that the appellant reasonably believed that she made protected disclosures.

      The Intervenor’s Petition for Review
¶14         The intervenor asserts that the administrative judge improperly applied the
      lower, substantial evidence standard that the Board uses in performance -based
      actions in evaluating the strength of the evidence in support of the agency’s
      actions, rather than the more stringent clear and convincing evidence standard.
      PFR File, Tab 4 at 10.         More specifically, the intervenor asserts that the

      5
        The agency further contends that the acting officials did not perceive the appellant as
      a whistleblower. PFR File, Tab 8 at 17-23. We need not address this argument because
      we agree with the administrative judge that the appellant proved by preponderant
      evidence that she made protected disclosures.
                                                                                              12

      administrative judge should have evaluated whether the agency had strong
      evidence to support its personnel actions and erroneously relied on a finding that
      the agency produced substantial evidence in support of its actions “as sufficient
      to determine that clear and convincing evidence showed that the Agency would
      have taken the same action regardless of Appellant’s whistleblowing.” Id. at 10,
      12.      Thus, the intervenor contends that the administrative judge did not
      “rigorously analyze the strength of the evidence, beyond his general finding that
      it met the substantial evidence standard.” Id. at 13. We disagree. 6
¶15         The administrative judge correctly set forth the standard in this case, noting
      that the Board must order corrective action unless the agency establishes by clear
      and convincing evidence 7 that it would have taken the same personnel actions
      absent     the   disclosures.    ID    at   12-13;   see    5 U.S.C.    § 1221(e)(1)-(2).
      The administrative judge also correctly found that, in determining whether an
      agency has shown by clear and convincing evidence that it would have taken the
      same actions absent the disclosures, the Board will consider the strength of the
      evidence in support of its actions, the existence and strength of any motive to
      retaliate on the part of the agency officials who were involved in the decision s,
      and any evidence that the agency takes similar actions against employees who are


      6
        The intervenor and the agency have filed additional pleadings addressing Miller v.
      Department of Justice, 842 F.3d 1252 (Fed. Cir. 2016), and its possible application to
      this appeal.     PFR File, Tabs 20-21.          In Miller, which did not involve a
      performance-based action under 5 U.S.C. chapter 43 as in this case, the court addressed
      the connection between the clear and convincing evidence burden of pr oof on the
      agency and the court’s own substantial evidence standard of review, noting that what
      constitutes substantial evidence for purposes of the court’s review may be determined
      only with respect to the burden of proof that the litigant bore in the tri al court.
      842 F.3d at 1258. The intervenor has not shown that this principle, or any other
      holding set forth in Miller, affects our determination, except as set forth below, that the
      administrative judge correctly applied the clear and convincing evidenc e standard in
      this case.
      7
        Clear and convincing evidence is that measure or degree of proof that produces in the
      mind of the trier of fact a firm belief as to the allegations sought to be established.
      5 C.F.R. § 1209.4(e).
                                                                                       13

      not whistleblowers but who are otherwise similarly situated. ID at 13; see Carr v.
      Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).
¶16        The administrative judge’s discussion of the substantial evidence standard
      arose in connection with his analysis of the intervenor’s contention that the
      agency’s failure to show a clear and convincing basis for the PIP required a
      finding that the PIP, the proposed removal, and the decision notice “cannot be
      sustained.” ID at 14. The administrative judge found that an agency does not
      need to prove in an IRA appeal the merits of the action by the usual applicable
      burdens of proof, much less by clear and convincing evidence.             Id.   The
      administrative judge correctly held that an agency instead must show by clear and
      convincing evidence that it would have taken the same action absen t the protected
      disclosure. Id. The administrative judge therefore held that, “while the agency in
      this case need not necessarily introduce substantial evidence sufficient to support
      its performance-based actions, the Board may consider the strength of the
      agency’s evidence in support of its actions.” Id.
¶17        The administrative judge then found that “if this were a regular appeal
      strictly of a performance-based action under Chapter 43 of title 5 of the United
      States Code, the agency’s evidence in support of it would be sufficient to
      comprise substantial evidence . . . .”    ID at 14-15 (emphasis added).         The
      administrative judge thereafter otherwise correctly applied the clear and
      convincing evidence standard in this case. The administrative judge reviewed and
      considered the testimony of the appellant’s peers and others who worked with her
      on cases and who believed that she had done some good work, was not at fault for
      excessive delays cited in the proposal and decision notices, was not too nervous
      at trial, and wrote indictments that were legally sufficient. Despite this evidence,
      the administrative judge found that the agency’s failure to rely on these
      individuals as witnesses did not undermine its case because the agen cy called as
      witnesses the managers who actually supervised and evaluated the appellant or
      reviewed and assessed her performance as a part of their duties. ID at 15.
                                                                                       14

¶18        The administrative judge further noted that the letter placing the appellant
      on a PIP provided specific and detailed examples of performance deficiencies in
      four of her five critical elements, and the proposal notice provided extremely
      detailed explanations of her deficiencies, synthesized the evaluations of three
      supervisors, and incorporated criticism of her performance by an AUSA in
      another district office, the Federal Bureau of Investigation and investigating
      agents with whom she worked, as well as the presiding judge in one of her trials
      during the PIP. ID at 15-16; W-2 AF, Tab 8, OSC Ex. 65, Tab 9, OSC Ex. 95.
      Despite the appellant’s contentions that the deficiencies set forth in the proposal
      notice were false, petty, or overblown, the administrative judge found that the
      hearing testimony
            establishes that the agency received numerous complaints from
            investigators and case agents with whom she worked, expressing
            frustration with the length of time it took for her to indict cases, and
            explaining that repeated inquiries were met with her protestations
            that she had not had time to do so, or that such inquiries were met
            with silence.
      ID at 16. The administrative judge found that the evidence also established that
      the appellant’s supervisors on several occasions had to remind her to indict cases
      that had been assigned to her for more than 1 yea r and often had to give her
      explicit deadlines for doing so and that the appellant was sometimes unable to
      comprehend inquiries from judges during oral arguments, leading them to openly
      criticize her for failing to answer questions. ID at 16-17. The administrative
      judge further found that there was substantial evidence that such problems
      continued during the PIP period and that testimony from several managers
      supported the charges that the agency received complaints and requests for
      intervention from individuals with whom the appellant worked, the appellant
      unnecessarily delayed indicting cases and failed to work collegially with others,
      she failed to effectively “marshall” evidence necessary to support specific
      charges in indictments, she failed to move cases forward to settlement or trial
                                                                                            15

      despite repeated prompting from her supervisors, and she did not, according to a
      judge, have the instincts and natural inclination for jury trials. ID at 17. 8 In
      making these factual findings, the administrative judge relied upon the demeanor
      of key witnesses. ID at 18, 27, 33; see Haebe v. Department of Justice, 288 F.3d
      1288, 1301 (Fed. Cir. 2002) (the Board must defer to an administrative judge’s
      credibility determinations when they are based, explicitly or implicitly, on
      observing the demeanor of witnesses testifying at a hearing; the Board may
      overturn such determinations only when it has “sufficiently so und” reasons for
      doing so).
¶19         The administrative judge found that this evidence “clearly constituted at
      least substantial evidence” in support of the agency’s actions. ID at 18. Despite
      this reference to “substantial evidence,” the administrative judge con cluded his
      analysis of this section of the initial decision by finding that the “relative strength
      of the agency’s evidence in support of its finding that the appellant had not
      successfully completed the PIP, and that her performance under it was
      unsuccessful, is ample.” ID at 29. The administrative judge later addressed the
      existence and strength of any motive to retaliate and any evidence that the agency
      took similar actions against employees who were not whistleblowers but who
      otherwise were similarly situated, ultimately concluding that, upon weighing the
      three factors set forth in Carr, “the strength of the agency’s evidence in support
      of its actions is ample, the strength of any motive to retaliate on the part of the
      agency officials who were involved in the decision is exceedingly slight, and the
      evidence that the agency takes similar actions against employees who are not

      8
        The intervenor further asserts that, although the administrative judge was required to
      assess the strength of all the charges the agency relied upon in taking its actions, he
      made no determination as to any of the specific counts listed in the PIP or the notice of
      proposed removal. PFR File, Tab 4 at 14. The above findings by the administrative
      judge, however, generally correspond to the critical elements and charges se t forth in
      the proposal and decision notices, which include specific allegations of unacceptable
      performance relating to the critical elements of Case Handling, Advocacy, Productivity,
      and Writing. IAF, Tab 11 at 26-35, Tab 17 at 5-34, 36-50.
                                                                                         16

      whistleblowers but who are otherwise similarly situated is clear.” ID at 29 -36.
      He therefore found that the agency proved by clear and convincing evidence that
      it would have taken the same actions against the appellant absent her disclosures.
      ID at 36. Thus, although the administrative judge made several references to the
      substantial evidence standard in his initial decision, we find that he ultimately
      applied the correct legal standard in this case. 9
¶20         The intervenor also asserts that the administrative judge did not evaluate all
      of the evidence, including countervailing evidence, in determining whether the
      agency proved by clear and convincing evidence that it would have taken the
      same actions absent the appellant’s whistleblowing. PFR File, Tab 4 at 15. In
      particular, the intervenor contends that the administrative judge did not evaluate
      or weigh the “voluminous” evidence the appellant produced to rebut each of the
      charges of poor performance levied against her in the PIP letter and in the notice
      of proposed removal, as well as testimony from witnesses who challenged the
      agency’s allegations of poor performance and instances of “over-reaching” by the
      agency during the PIP.        Id. at 15-17.     As set forth above, however, the
      administrative judge considered the countervailing evidence submitted by the
      appellant but nevertheless found that the agency’s evidence was suffic iently
      “ample” to warrant, along with the other Carr factors, a finding that the agency
      proved by clear and convincing evidence that it would have taken the same
      actions absent the appellant’s protected disclosures. In this respect, we find that
      the administrative judge complied with the guidance set forth in Whitmore v.
      Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012), concerning the clear and
      convincing evidence test. Unlike in Whitmore, 680 F.3d at 1368-72, wherein the
      court found that the administrative judge abused her discretion by excluding or

      9
       Even assuming that the administrative judge did not apply the correct legal standard,
      we hold, based on the factual findings made in the initial decision, that the agency
      produced strong evidence in support of its actions and ultimately proved by clear and
      convincing evidence that it would have taken the same actions absent the appellant’s
      protected disclosures. ID at 13-36.
                                                                                        17

      failing to consider evidence offered by the appellant that was necessary to
      adjudicate his whistleblower claim, the administrative judge here did not prevent
      the appellant from effectively presenting her case.      The administrative judge
      approved all of the witnesses requested by the appellant and the intervenor,
      compare IAF, Tab 56, with IAF, Tab 62 and HT (June 24, 2015), held an 8-day
      hearing, and admitted and considered thousands of pages of evidence submitted
      by the appellant and the intervenor. Moreover, the thorough ly explained initial
      decision and lengthy hearing transcript reveal that the administrative judge
      listened closely to the testimony of witnesses from both sides, including those
      who bolstered the appellant’s claim of reprisal for whistleblowing. See Campbell
      v. Department of the Army, 123 M.S.P.R. 674, ¶¶ 22-23 (2016).
¶21         The intervenor further asserts that the administrative judge improperly
      relied on non-Carr factors when he held that the agency had nonretaliatory
      reasons for its actions, such as the appellant’s alleged poor performance for many
      years before her placement on a PIP, her prior supervisor’s failure to take
      appropriate action during that time because he was “too kind” and had a large
      workload, and her new supervisor’s willingness to be more confrontational and
      “micro-manage” the appellant. PFR File, Tab 4 at 18-19. The intervenor asserts
      that the administrative judge’s considering these nonretaliatory reasons as part of
      his analysis of the strength of the agency’s evidence was improper because he did
      not assess the actual charges brought against the appellant or the evidence
      supporting those charges. Id. at 19. The intervenor contends that a nonretaliatory
      explanation for personnel actions will be offered in every whistleblower case and
      evidence in support of such an explanation cannot be all that is required for the
      agency to meet its burden of showing that it would have taken the same action
      absent the disclosures. Id. at 20-22.
¶22         Although the intervenor contends that the administrative judge improperly
      relied on “nonretaliatory reasons,” such as the appellant’s pre -PIP deficiencies, in
      finding that the agency’s evidence in support of its actions was strong, we
                                                                                            18

      disagree. The administrative judge made these findings in response to arguments
      raised by the intervenor and the appellant that the appellant’s annual performance
      ratings before her placement on the PIP contained no criticism, that the agency
      began to closely scrutinize her work only after her disclosures, and that the
      appellant had no prior notice that her performance was considered deficient until
      the agency placed her on a PIP. ID at 18-29. Further, the administrative judge’s
      discussion of the years leading up to the PIP shed light upon his findings
      regarding the appellant’s credibility. As the administrative judge found, these
      well-documented performance issues and meetings with supervisors “bel[ie] the
      appellant’s testimony” of her unblemished career and prove that her claim that the
      PIP came out of nowhere “is simply not accurate.”              ID at 19 n.11, 26 n.16.
      Moreover, as set forth above, the administrative judge did not rely upon these
      findings relating to the appellant’s pre-PIP performance as the sole basis for his
      finding that the agency’s evidence in support of its actions was strong.              ID
      at 13-18.     Instead,   as   previously   discussed,    the    administrative   judge’s
      determination that the agency submitted “ample” evidence in support of its
      actions was based on testimonial and documentary evidence, bolstered in part by
      his demeanor-based credibility findings, that corresponded to the critical elements
      addressed in the PIP and the charges set forth in the proposal and decision
      notices.
¶23         Thus, we find that the intervenor has not established a basis for disturbing
      the factual findings and legal conclusions made by the administrative judge. 10

      10
         The intervenor has filed a motion for leave to submit an additional pleading that
      would discuss the applicability of Santos v. National Aeronautics & Space
      Administration, 990 F.3d 1355 (Fed. Cir. 2021), to this case. PFR File, Tab 23. We
      deny the motion because the intervenor has not shown that the additional argument
      would be material, i.e., of sufficient weight to warrant a different outcome from that of
      the initial decision. 5 C.F.R. § 1201.114(k); see Russo v. Veterans Administration,
      3 M.S.P.R. 345, 349 (1980). In Santos, the court held that, in addition to the five
      elements an agency must prove in a performance-based action taken under 5 U.S.C.
      chapter 43, the agency also must justify the institution of a PIP by proving by
      substantial evidence that the employee’s performance was unacceptable prior to the
                                                                                            19

      The Appellant’s Petition for Review
            The agency’s evidence in support of its actions is strong.
¶24         Regarding the strength of the agency’s evidence, the appellant contends that
      the initial decision provides a terse, one-page summary of a voluminous record
      involving her work performance without identifying any of the four counts upon
      which her PIP and decision letter were based. PFR File, Tab 3 at 22-23. She also
      asserts that several of the agency’s specific findings regarding her performance
      were unexplained or improperly determined. Id. at 24-25. As set forth above,
      however, the administrative judge’s findings generally reflect the critical
      elements set forth in the PIP and the charges set forth in the proposal and decision
      notices, which included specific allegations of unacceptable performance relat ed
      to the critical elements. ID at 15-17. The appellant’s assertions do not establish
      that the administrative judge erred when he found “ample” evidence in support of
      the personnel actions taken by the agency. ID at 29, 35.
¶25         The appellant also contends that, instead of addressing the evidence
      supporting the personnel actions, which all occurred in 2008, the administrative
      judge addressed the appellant’s performance in prior years.           PFR File, Tab 3
      at 23, 26.   As previously discussed, this analysis placed the appellant’s more
      recent performance issues in context and was made in response to the appellant’s
      claims that the agency closely scrutinized her work only after her disclosures and
      that she was not aware that her performance was deficient until the agency placed


      PIP. Santos, 990 F.3d at 1360-61. We find that this case is distinguishable from
      Santos. First, this case does not involve an action taken under 5 U.S.C. chapter 43.
      Rather, it is an IRA appeal, under which the Board l acks the authority to adjudicate the
      merits of the underlying personnel action. See Lu v. Department of Homeland Security,
      122 M.S.P.R. 335, ¶ 7 (2015). Second, the personnel actions in this case do not include
      a removal for unacceptable performance. As set forth above, the appellant appears to
      have resigned in lieu of removal. In any event, given that one of the personnel ac tions
      involved the appellant’s placement on a PIP, the administrative judge addressed the
      appellant’s pre-PIP performance in great detail, finding significant evidence in support
      of that action. ID at 13-29. Thus, we find no basis for granting the interv enor’s motion
      in this case.
                                                                                       20

      her on a PIP. ID at 18-29. Therefore, the appellant has shown no error in the
      administrative judge’s more extensive review of the appellant’s performance.

            The relevant agency officials did not have a strong motive to retaliate.
¶26        The appellant asserts that the administrative judge erred when he found that
      the agency did not have a strong motive to retaliate because he improperly
      focused on the supposed triviality of the content of the ex parte communications,
      rather than on the disclosures themselves.      PFR File, Tab 3 at 11 -12.       We
      disagree. In response to the appellant’s argument that her disclosures angered
      agency officials because they might have led to a challenge of the defendant’s
      conviction in the criminal case, the administrative judge addressed the nature of
      the ex parte contacts, which were a part of the disclosures, in finding that the
      appellant had exaggerated and mischaracterized the evidence. ID at 29 -30. The
      administrative judge properly considered what he found to be the “innocuous”
      nature of the ex parte communications in deciding whether any agency officials
      would have likely been so concerned about the verdict as to establish a motive on
      their part to retaliate against the appellant for her disclosures. ID at 30; Ryan v.
      Department of the Air Force, 117 M.S.P.R. 362, ¶ 14 (2012) (finding that
      assessing the existence and extent of any retaliatory motive cannot be properly
      made without considering the nature of the disclosures).
¶27        The appellant also contends that the administrative judge ignored evidence
      pertaining to the potential harm to agency officials resulting from the disclosures
      and that he gave too much weight to the testimony of agency officials who denied
      having a retaliatory motive. PFR File, Tab 3 at 12. In this regard, the appellant
      asserts that the administrative judge ignored evidence that her disclosures
      threatened the “integrity” of the verdict in the criminal case and threatened to
      expose the ethical lapses of agency officials who were complicit in the AUSA’s
      failure to report the ex parte contacts. This allegedly ignored evidence included
      the appellant’s testimony that her second-level supervisor told her that
      management did not want to disturb the verdict, testimony that the AUSA was
                                                                                         21

      discouraged from reporting the ex parte communications to the court, and a
      statement from PRAO that the ex parte communications went to the integrity of
      the verdict. Id. at 13-14.
¶28         The Federal Circuit has cautioned us against taking too narrow a view of the
      second Carr factor. In Whitmore, 680 F.3d at 1370, the court stated, “[t]hose
      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 personally, as the criticism reflects on them
      in their capacities as managers and emplo yees.”            The court in Whitmore
      determined that, when a whistleblower makes highly critical accusations of an
      agency’s conduct that draws the attention of high-level agency managers, the fact
      that an agency official is “outside the whistleblower’s chain of c ommand, not
      directly involved in alleged retaliatory actions, and not personally named in the
      whistleblower’s disclosure is insufficient to remove the possibility of a retaliatory
      motive or retaliatory influence,” and that the Board should consider any mot ive to
      retaliate on the part of the agency official who ordered the action, as well as that
      of any officials who influenced the action.      Id. at 1371.   In Miller, 842 F.3d
      at 1261-62, the court instructed the Board not to limit its consideration of a
      motive to retaliate to the appellant’s supervisors, but to examine whether a
      retaliatory motive could be imputed more broadly to other officials or entities
      involved in the decision.       Similarly, in Robinson v. Department of Veterans
      Affairs, 923 F.3d 1004, 1019 (Fed. Cir. 2019), the court found that, although the
      deciding official did not have a personal motive to retaliate against the appellant
      for contradicting an agency Under Secretary, the administrative judge erred by
      failing to consider whether he had a “professional retaliatory motive” against the
      appellant because his disclosures “implicated the capabilities, performance, and
      veracity of [agency] managers and employees, and implied that the [agency]
      deceived   [a]   Senate      Committee.”    Nevertheless,    after   considering   the
      administrative judge’s reliance upon the deciding official’s credibility and
                                                                                       22

      demeanor in his determination that the deciding official lacked a motive to
      retaliate, the court agreed with the administrative judge that there was no
      retaliatory motive, either professional or personal. Id. at 1019-20. The court in
      Robinson therefore found that that the second Carr factor slightly favored the
      agency and that the agency met its overall clear and convincing evidence burden
      given the strength of Carr factor one and the neutral evidence regarding the third
      Carr factor. Id. at 1020.
¶29        Here, the administrative judge considered the appellant’s arguments
      concerning potential harm to agency officials, including those who were not her
      supervisors, but found them unavailing. ID at 29-34. Moreover, although the
      appellant contends that her testimony and contemporaneous notes show that her
      second-level supervisor told her that management did not want the verdict to
      be disturbed, PFR File, Tab 3 at 13, the administrative judge found that the
      second-level supervisor vehemently denied making such a statement and that this
      allegation was not reflected in the appellant’s correspondence with PRAO or the
      testimony of the PRAO attorney, ID at 8-9. In any event, even assuming that
      there was initial concern about disturbing the verdict, the evidence set forth by
      the administrative judge suggests that any concern decreased as management
      learned more about the “innocuous” nature of the ex parte communications.
      ID at 5-10, 30-34. Although some evidence suggests that the agency determined
      that it was not necessary to immediately report the ex parte communications to
      the court, W-2 AF, Tab 7, OSC Ex. 16, Tab 11, OSC Ex. 158, that same evidence,
      as well as testimony found persuasive by the administrative judge, ID at 6, 29-34,
      also indicates that the agency requested that the AUSA research the matter further
      and take any appropriate action, including drafting a memorandum for
      management explaining what had occurred. The fact that the AUSA informed his
      supervisor that the judge in the criminal case had “polled” jurors when one juror
      alleged that another juror had suggested that the y were not obligated to follow the
      law, W-2 AF, Tab 7, OSC Ex. 18, and that PRAO ultimately informed
                                                                                         23

      management that the contact should be reported to the court, W-2 AF, Tab 12,
      OSC Ex. 207, do not suggest that management officials were overly concerned
      about the effect of the disclosures on the verdict or worried about repercussions
      they might face for the delay in informing the court.
¶30         The appellant also asserts that her first-level supervisor, whom she claims
      was the “architect” of the PIP, had a strong motive to retaliate because the
      disclosures exposed the supervisor’s instruction to the AUSA not to report the ex
      parte communications to the court and thereby reflected negatively on her
      supervisory abilities. PFR File, Tab 3 at 14-15. The appellant asserts that other
      officials were motivated to retaliate because a Professional Responsibility Officer
      concluded that the ex parte communications must be brought to the court’s
      attention, the California rule in question is stringent and requires revealing such
      communications promptly, and many agency officials were involved in
      discussions regarding the matter for several weeks. Id. at 15-16.
¶31         The administrative judge addressed these arguments, finding that although
      the appellant asserted that the agency had a motive to retaliate because her
      disclosures might “bring to light ethical lapses of several AUSAs and
      supervisors,” ID at 29, the “entire matter had concluded, with no ill effect on
      anyone, by mid-April [2008] when the contact was reported to the court,” several
      months before the appellant’s July 2008 placement on a PIP, and the appellant’s
      first-level supervisor testified that “no one could get in trouble” as a result of the
      appellant’s disclosure to PRAO, ID at 32. Further, the appellant has shown no
      error in the administrative judge’s determination that, because PRAO merely
      gives advice or suggestions, no AUSA would fear its involvement i n their cases.
      ID at 33. In any event, the appellant’s disclosures did not reveal any alleged
      misconduct by her first-level supervisor. Rather, her disclosures merely informed
      PRAO and her second-level supervisor that the matter had not been reported to
      the court by the AUSA despite a possible ethical responsibility by him to do so.
      Although a Professional Responsibility Officer ultimately concluded that the
                                                                                      24

      ex parte communications must be brought to the court’s attention, and although
      many agency officials were involved in discussing the matter for several weeks,
      these facts do not demonstrate error in the administrative judge’s analysis.
¶32        The appellant further asserts that an Executive Assistant U.S. Attorney
      (EAUSA) who dealt with personnel issues for the U.S. Attorney, ID at 22, and
      who corresponded with the appellant’s first-level supervisor regarding the
      appellant’s performance, indicating that a PIP was the “right direction” to take
      and “in order” for the appellant, W-2 AF, Tab 7, OSC Ex. 11, Tab 8, OSC Ex. 32,
      also had a motive to retaliate because her involvement in the matter and rush to
      place the appellant on the PIP departed from the agency’s normal process, and her
      knowledge of the appellant’s performance deficiencies came from the first -level
      supervisor, PFR File, Tab 3 at 16-17. The appellant testified that, even if the
      EAUSA did not know directly of the disclosures before the appellant’s placement
      on the PIP, the first-level supervisor told her of the appellant’s contact with
      PRAO within moments of learning of it. Id. at 17.
¶33        The appellant has not, however, shown that the administrative judge erre d
      when he found that the EAUSA was a “very reasonable, articulate, and
      straightforward witness” who testified that she made the above statements
      regarding the appropriateness of a PIP for the appellant before she became aware
      of the appellant’s disclosures. ID at 27-28. In addition, the appellant has not
      explained how the EAUSA rushed the appellant’s placement on a PIP and what
      departure from the “normal” process was involved, aside from asserting that
      informal measures were not used. W-2 AF, Tab 4 at 18-21. We note that the
      EAUSA had asked the agency’s Office of General Counsel about placing the
      appellant on a PIP in April 2007, eleven months before the appellant made her
      disclosures and over 1 year before the July 2008 PIP, ID at 27; W-2 AF, Tab 8,
      OSC Ex. 65, and that the agency had a long history of concerns regarding the
      appellant’s performance prior to her disclosures, ID at 18-29. In addition, despite
      the appellant’s contention that the EAUSA learned of the appellant’s disclosure
                                                                                       25

      within minutes after the appellant’s first-level supervisor learned of the
      disclosures—which the administrative judge found was before the appellant’s
      placement on the PIP, ID at 12—the EAUSA actually stated during her sworn
      investigatory interview with the Office of Special Counsel that she learned that
      the appellant had contacted PRAO long after the appellant’s July 2008 placement
      on the PIP.   W-2 AF, Tab 12, OSC Ex. 173 at 22, 25, 29-30.            Although the
      EAUSA indicated that she thought the first-level supervisor first learned of the
      appellant’s disclosures “within minutes of calling me,” she also testif ied that she
      did not remember whether the first-level supervisor told her of when she learned
      of the disclosures; she did not know how the first-level supervisor knew that it
      was the appellant who made the disclosures; and the Office of Special Counsel
      would have to ask the first-level supervisor to confirm such information.        Id.
      at 29-31.
¶34         The appellant also asserts that her first-level supervisor and another
      manager who helped supervise the PIP determined that the appellant showed poor
      judgment in making the disclosures, and that the administrative judge mentioned
      these statements but did not draw the necessary inference that such a negative
      opinion showed a motive to retaliate.      PFR File, Tab 3 at 18.     The appellant
      further contends that, while the administrative judge recognized that the fellow
      AUSA was annoyed and concerned by the appellant’s disclosures, he was more
      than simply annoyed and concerned because he investigated the source of the
      disclosures, angrily confronted the appellant when he learned that she had made
      them, and told another AUSA that the appellant was the “culprit” and that the
      disclosures might alter his relationship with the appellant.     Id. at 18-19. The
      appellant asserts that it is “highly likely” that the AUSA influenced her placement
      on a PIP and subsequent termination because he “planned” to discuss the matter
      with the appellant’s first-level supervisor, who was his friend. Id. at 19.
¶35         Although the appellant contends that agency officials were motivated to
      retaliate because they indicated that the appellant showed “poor j udgment” in
                                                                                        26

      making her disclosures, one of those references was made by one of the trial
      attorneys in the criminal case to the other AUSA when she noted that the
      appellant had contacted PRAO on a case that was not assigned to her and without
      having all of the relevant information.     W-2 AF, Tab 11, OSC Ex. 166.           A
      manager who reviewed the appellant’s performance during the PIP with the
      appellant’s first- and second-level supervisors testified that the appellant’s
      decision to contact PRAO showed poor judgment because he thought that the
      nature of the contact between the defense attorney and the juror was trivial, i.e.,
      saying “Good morning” and “How are you?” to jurors at a coffee shop.             HT
      at 187-88, 204 (testimony of the nonsupervisory AUSA). This evidence, which
      suggests that a coworker and a manager who was not the appellant’s supervisor
      may have disagreed with or been disturbed by the disclosures , does not show that
      the officials who placed the appellant on a PIP, proposed her removal, and issued
      a decision letter shared in those beliefs or harbored any motive to retaliate against
      her. The administrative judge addressed these issues, finding that the AUSA had
      no role in the PIP or subsequent agency actions, and that the individuals who did
      take the personnel actions were not annoyed by the disclosures and otherwise had
      only a weak motive to retaliate. ID at 32-34. The appellant has not shown that
      the administrative judge erred in evaluating the countervailing evidence in
      support of her position. Her speculation that it was “highly likely” that the fellow
      AUSA influenced the appellant’s first-level supervisor to place the appellant on a
      PIP because he “planned” to discuss the matter with the supervisor, who was his
      friend, does not show that he discussed the matter with the supervisor or
      otherwise influenced her, nor does it show that the administrative judge erred in
      finding that the agency’s motive to retaliate was not strong. ID at 34.
¶36         Next, the appellant asserts that the administrative judge did not address the
      close temporal proximity between her disclosures and the personnel actions ,
      given that the agency began discussing and taking steps to place her on a PIP less
      than 1 week after learning of the disclosures. PFR File, Tab 3 at 19 -20. The
                                                                                        27

      appellant contends that, although the administrative judge acknowledged this
      temporal proximity in his contributing factor analysis, he did not consider it in his
      analysis of the agency’s motive to retaliate. Id. at 20.
¶37         Despite the appellant’s contentions, the administrative judge did address the
      appellant’s claim concerning the timing of her placement on a PIP. ID at 18. The
      administrative judge noted that there was significant evidence that the appellant’s
      supervisors were concerned about her performance for years and had become
      increasingly concerned in the year leading up to the 2008 PIP. ID at 18-29. In
      addition, the administrative judge found that the appellant’s place ment on a PIP
      coincided with an office reorganization in February 2008 that resulted in a change
      in supervisors for the appellant and other AUSAs and a more coordinated
      approach to addressing the appellant’s performance issues. ID at 21, 25. The
      administrative judge noted that this change resulted in supervisors having to
      supervise only 8 attorneys rather than 17, and that the appellant’s new first-level
      supervisor had more of a “micromanaging” style and was less lenient than her
      former supervisor.    ID at 25-26.     The administrative judge noted that these
      management changes took place before the appellant made her disclosures. ID at
      26. The appellant has shown no error in these findings by the administrative
      judge.
¶38         The appellant further contends that the administrative judge erroneously
      required her to show harm in order to establish a motive to retaliate, incorrectly
      interpreting the Board’s decision in Schmittling v. Department of the Army,
      81 M.S.P.R. 225, 238 (1999), vacated on other grounds, 219 F.3d 1332 (Fed. Cir.
      2000). PFR File, Tab 3 at 21. The appellant asserts that the Board’s decision in
      Schmittling addressed whether the acting officials were either harmed or
      disturbed by the disclosures. Id. The appellant claims that the agency officials in
      this case were at least disturbed by the disclosures and faced potential harm. Id.
¶39         In discussing the existence and strength of any motive to retaliate by the
      agency officials who were involved in the personnel actions, the administrative
                                                                                              28

      judge noted that “[t]here generally must be a showing of harm – i.e., that the
      supposed retaliators were harmed by the employee’s protected disclosure.               See
      Schmittling v. Department of the Army, 81 M.S.P.R. 225, 238 (1999).” ID at 29.
      The administrative judge found that “[h]ere, there is no such evidence ,” and
      supported this finding with an extensive analysis of testimonial evidence
      presented by agency witnesses.           Id. at 29-34.   Thus, although the appellant
      appears to suggest that the administrative judge improperly placed the burden on
      her of showing no motive to retaliate, we disagree.                  In any event, in
      Schmittling, 81 M.S.P.R. at 238, the Board held that there was no strong motive
      to retaliate because the agency presented unrebutted evidence that the appellant’s
      superiors “were neither harmed nor disturbed by the disclosures.” To the extent
      that the administrative judge focused only on whether the acting officials were
      harmed by the disclosures, such an analysis would be inconsistent with
      Schmittling.      Nevertheless, despite his incorrectly stating the holding in
      Schmittling, we find that the administrative judge otherwise correctly analyzed
      the   existence    and   strength   of    any   motive   to   retaliate   in   this   case.
      The administrative judge considered whether the appellant’s disclosures angered,
      annoyed, or concerned any of the acting officials or individuals who may have
      influenced those officials, i.e., disturbed them, finding that the existence and
      strength of any motive to retaliate was weak. ID at 29-34. Thus, we find that the
      administrative judge did consider whether any of the relevant officials in this case
      were harmed or disturbed by the appellant’s protected disclosures , or otherwise
      had a personal or professional motive to retaliate against her .          See Robinson,
      923 F.3d at 1019-20; Panter v. Department of the Air Force, 22 M.S.P.R. 281,
      282 (1984) (finding that an adjudicatory error that is not prejudicial to a party’s
      substantive rights provides no basis for reversing an initial decision).
¶40         We acknowledge that the acting officials may have had some motive to
      retaliate, even if they were not directly implicated by the appellant’s disclosures,
      to the extent that any criticism reflected on them or others in their capacities as
                                                                                      29

      agency managers and employees. Thus, the evidence regarding the second Carr
      factor does not unfailingly support the agency.     See Miller, 842 F.2d at 1262.
      Nevertheless, given the administrative judge’s explained and supported findings
      as to why any motive to retaliate was not strong, his reliance on the testimony of
      numerous witnesses to that effect, some of whom he found to be credible based
      explicitly on their demeanor, ID at 27, 32-33, and his discussion of evidence
      supporting the opposite result, such as the testimony of an AUSA who was
      “annoyed/concerned” about the appellant’s disclosures, ID at 31, 33-34, we
      conclude after consideration of the evidence as a whole that this factor ultimately
      tips in the agency’s favor. See Robinson, 923 F.3d at 1019-20; Haebe, 288 F.3d
      at 1301 (requiring the Board to give deference to credibility determinations when
      they are based, explicitly or implicitly, on the demeanor of witnesses ).

            The agency took similar actions against similarly situated employees who
            were not whistleblowers.
¶41         Finally, the appellant contends that the agency did not submit evidence
      corroborating the testimony of agency officials that it had taken similar actions
      against three other employees who were similarly situated to the appellant.
      PFR File, Tab 3 at 27-28. The appellant asserts that the agency did not present
      evidence showing the length of service, work units, disciplinary standards,
      performance records, and disciplinary history of the other AUSAs who were
      placed on PIPs. Id. at 28-29. The appellant contends that the three comparators
      were treated differently from her because they either resigned or passed the PIP
      and continued working for the agency. Id. at 29.
¶42         The administrative judge found, based on the uncontested testimony of two
      witnesses, including the testimony of the EAUSA whom he found to be
      particularly credible, that the agency took similar actions against employees who
      were not whistleblowers but who were otherwise similarly situated to the
      appellant.   ID at 27, 34-35.    The appellant has provided no support for her
      apparent contention that testimonial evidence concerning an agency’s treatment
                                                                                           30

      of similarly situated nonwhistleblowers must be corroborated by written evidence.
      Thus, we find no basis to disturb the initial decision in this regard.
¶43         Moreover, as the court explained in Whitmore, 680 F.3d at 1373, “the
      requisite degree of similarity between employees cannot be construed so narrowly
      that the only evidence helpful to the inquiry is completely disregarded.” Here the
      agency submitted evidence of three other AUSAs who were not whistleblowers,
      struggled with performance issues, and were eventually placed on a PIP during
      the tenure of the U.S. Attorney and the EASUA.             The fact that two of the
      individuals who were placed on a PIP chose to resign and one individual
      improved her performance and passed the PIP, HT at 1685-88 (testimony of the
      EAUSA), does not indicate that they were treated differently from the appellant.
      In fact, the U.S. Attorney testified at the Board hearing that, midway through the
      PIPs, he informed both the appellant and one of the AUSAs who resigned that
      they were not improving, that they would fail the PIP if it ended the next day, and
      that they should consider their options, including a voluntary resignation. HT
      at 1812-13 (testimony of the U.S. Attorney).
¶44         Having considered the evidence in the record as a whole, we are left with
      the firm belief that the agency would have placed the appellant on a PIP,
      proposed her removal, and issued a removal decision letter absent he r protected
      disclosures. Accordingly, we deny the petitions for review filed by the appellant
      and the intervenor and the cross petition for review filed by the agency.           The
      appellant’s request for corrective action in this IRA appeal is denied.

                               NOTICE OF APPEAL RIGHTS 11
            You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
      statute, the nature of your claims determines the time limit for seeking such


      11
        Since the issuance of the initial decision in this matter, the Board may have updated
      the notice of review rights included in final decisions. As indicated in the notice, the
      Board cannot advise which option is most appropri ate in any matter.
                                                                                      31

review and the appropriate forum with which to file.              5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction.   If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
      Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.

      (1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision.               5 U.S.C.
§ 7703(b)(1)(A).
      If you submit a petition for review to the U.S. Court of Appeals for the
Federal   Circuit,   you   must   submit   your   petition   to   the   court    at   the
following address:
                              U.S. Court of Appeals
                              for the Federal Circuit
                             717 Madison Place, N.W.
                             Washington, D.C. 20439

      Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. O f particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
                                                                                    32

      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.

      (2) Judicial   or   EEOC     review   of   cases     involving    a   claim   of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision.     5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017).              If you have a
representative in this case, and your represent ative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
      Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
      http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
                                                                                33

EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
      If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
                            Office of Federal Operations
                     Equal Employment Opportunity Commission
                                  P.O. Box 77960
                             Washington, D.C. 20013

      If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
                            Office of Federal Operations
                     Equal Employment Opportunity Commission
                                 131 M Street, N.E.
                                   Suite 5SW12G
                             Washington, D.C. 20507

      (3) Judicial     review   pursuant   to   the   Whistleblower     Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or a ny court of appeals of
competent jurisdiction. 12   The court of appeals must receive your petition for

12
  The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the Pres ident on
                                                                                      34

review within 60 days of the date of issuance of this decision.                5 U.S.C.
§ 7703(b)(1)(B).
      If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
                               U.S. Court of Appeals
                               for the Federal Circuit
                              717 Madison Place, N.W.
                              Washington, D.C. 20439

      Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.




July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent j urisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
                                                                       35

      Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
      http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.




FOR THE BOARD:                          /s/ for
                                        Jennifer Everling
                                        Acting Clerk of the Board
Washington, D.C.