Pamela Messal v. Department of Agriculture

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

PAMELA MESSAL, DOCKET NUMBER
Appellant, DE-0752-20-0137-I-1

v.

DEPARTMENT OF AGRICULTURE, DATE: March 19, 2024
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Ryan C. Nerney , Esquire, Ladera Ranch, California, for the appellant.

Stephanie Rapp-Tully , Esquire, Washington, D.C., for the appellant.

Julie Nelson , Esquire, Golden, Colorado, for the agency.

Rayann Brunner , Esquire, Albuquerque, New Mexico, for the agency.

BEFORE

Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which
sustained her removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of

1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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 petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED to
incorporate the proper standards for the appellant’s claims of discrimination and
reprisal for equal employment opportunity (EEO) activity, and to supplement the
whistleblower reprisal analysis, we AFFIRM the initial decision.
The appellant most recently held the position of Supervisory Forestry
Technician. Initial Appeal File (IAF), Tab 10 at 19. In this fire management
position, she supervised approximately 20 individuals that made up a “Hotshot
Crew.” IAF, Tab 11 at 22.
In November 2019, the agency proposed the appellant’s removal based
upon five charges, i.e., Charges A-E. IAF, Tab 11 at 4-17. The appellant
presented a written response, IAF, Tab 17 at 5-15, and an oral response, IAF, Tab
10 at 30-45. In December 2019, the deciding official sustained all the charges
and the proposed penalty. Id. at 20-29.
The appellant timely filed the instant appeal to challenge her removal.
IAF, Tab 1. The administrative judge developed the record and held a 4-day
hearing. E.g., IAF, Tabs 46, 51, 56, 59. She then issued an initial decision in
March 2022, affirming the appellant’s removal. IAF, Tab 70, Initial Decision
(ID).
 For Charge A, absence without leave (AWOL), the administrative judge
found that the agency proved all its specifications. This included specifications
1-10, which concerned absences between March 4-15, 2019, ID at 7-13, as well as
specifications 11-12, which concerned absences on October 23-24, 2019, ID at
13-19. Regarding these latter specifications, the administrative judge further
found that this portion of the agency’s AWOL charge merged with the entirety of
Charge D, failure to follow leave procedures, which concerned the same dates.
ID at 13-14.
For Charge B, conduct unbecoming a supervisor, the administrative judge
found that the agency proved each of its three specifications. ID at 19-23.
Broadly speaking, each alleged a particular instance of the appellant changing the
working conditions of the same subordinate for the worse without a legitimate
reason for doing so. IAF, Tab 11 at 5. After the agency selected the subordinate
for promotion over the appellant’s objection, she is alleged to have needlessly
taken the subordinate’s second monitor, removed his gear from a cabinet he had
long used, and instructed him to move his workspace out of an office and into a
hall. Id. at 5, 14.
For Charge C, failure to follow supervisory instructions, the administrative
judge found that the agency proved specifications 1-9 and 11-13, ID at 23-32, but
not specification 10, ID at 30. Of those sustained, specification 9 concerned an
instruction to attend a meeting, while all others concerned separate instructions
about submitting or correcting the appellant’s time and attendance reports.
IAF, Tab 11 at 5-7.
For Charge E, failure to follow agency policy, the administrative judge
found that the agency failed to meet its burden. ID at 32-33. This charge
concerned an allegation that the appellant recorded conversations with coworkers
without permission to do so. IAF, Tab 11 at 7.
The administrative judge next considered but rejected the appellant’s
various affirmative defenses. This included claims of a due process violation or
harmful error, ID at 33-35, disability discrimination based on a failure to
accommodate, ID at 35-38, disability discrimination based on disparate treatment,
ID at 38-39, sex discrimination, ID at 40-41, reprisal for filing EEO complaints
and Occupational Safety & Health Administration (OSHA) complaints,
ID at 41-42, and reprisal for whistleblowing, ID at 42-46. Finally, the
administrative judge found that the agency met its burden of proving the requisite
nexus and reasonableness of its penalty. ID at 46-50.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. First, she argues that the administrative judge erred by not
sanctioning the agency for disclosing certain information to witnesses before the
hearing. Id. at 4, 12-14. Next, the appellant disputes the charges. Id. at 14-22.
She then reasserts claims of a due process violation or harmful error, id. at 22-24,
disability discrimination, id. at 24-25, sex discrimination, id. at 25-27, reprisal for
filing EEO and OSHA complaints, id. at 27-29, and reprisal for whistleblowing
disclosures or activities, id. at 29-30. Lastly, the appellant challenges the
reasonableness of her removal as the penalty. Id. at 30-33. The agency has filed a
response to the agency’s petition. PFR File, Tab 4.

The administrative judge did not abuse her discretion in denying the appellant’s
motion for sanctions or err in analyzing the testimony giving rise to the motion
for sanctions.
It is undisputed that the agency provided several witnesses with access to
various pleadings before they appeared to testify at the hearing that was to occur
over video conference. IAF, Tab 68 at 1; Hearing Transcript, Day 1 (HT1)
at 8-28. This fact was revealed at the start of the hearing. E.g., HT1 at 8-12.
The administrative judge acknowledged that this could have prejudiced the
witnesses, and she indicated that she would take the matter into account as she
weighed the probative value of their testimony. HT1 at 12-15.
The appellant moved to sanction the agency and exclude the testimony of
these witnesses based on the agency’s disclosure of such documents to the
agency’s witnesses. HT1 at 29-30; IAF, Tab 61. The administrative judge denied
the motion. IAF, Tab 68 at 1-2. She described conducting an exhaustive review
of the record and testimony of the witnesses at issue and found no credible
evidence that the witnesses were influenced by their improper access to portions
of the record. Id.
On review, the appellant argues that the administrative judge erred in
denying her motion for sanctions. PFR File, Tab 1 at 4, 12-13. Alternatively, the
appellant argues that the administrative judge failed to properly account for the
witnesses’ access to pleadings when analyzing the credibility of their testimony.
Id. at 13-14. We are not persuaded.
Absent an abuse of discretion, the Board will not reverse an administrative
judge’s determination regarding sanctions. Lee v. Department of Veterans
Affairs, 2022 MSPB 11, ¶ 9. In this instance, the administrative judge recognized
the agency’s actions, acknowledged that providing the pleadings to the witnesses
might bias their testimony, allowed both parties to develop the issue, and
considered the matter to determine the degree of prejudice. The administrative
judge acted appropriately in recognizing that the agency’s actions were
potentially problematic, and permitted the appellant’s counsel to explore the issue
through cross-examination of each witness. HT1 at 17. We find no abuse of
discretion in her resulting denial of the appellant’s motion for sanctions. E.g.,
HT1 at 8-9, 14.
Turning to the administrative judge’s credibility findings, we also find no
error. The Board must give deference to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on the observation of
the demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has sufficiently sound reasons for doing so.
Karnes v. Department of Justice, 2023 MSPB 12, ¶ 13. The appellant suggests
that we should overturn the administrative judge’s credibility findings because
they did not explicitly discuss the fact that certain witnesses had access to the
agency’s pleadings. PFR File, Tab 1 at 13-14. While the administrative judge
may not have explicitly discussed that fact in her credibility findings, she did
discuss it in her post-hearing Motion for Sanctions and Motion to Strike
Testimony ruling. As mentioned above, she found that the access by four of the
witnesses to some of the pleadings and the appellant’s deposition did not
influence witness testimony. IAF, Tab 68 at 1-2. Moreover, the administrative
judge made credibility determinations that were at least partially based upon
witness demeanor. E.g., ID at 6, 48. Broadly speaking, she found that the
agency’s witnesses provided direct testimony that was consistent with evidence of
record while the appellant provided “extremely evasive” testimony that was
inconsistent with the record and not believable. Id. We discern no basis to
conclude otherwise.

The appellant has not shown that the administrative judge erred in her analysis of
the charges.
On review, the appellant continues to dispute at least some of the charges
and specifications that the administrative judge sustained. PFR File, Tab 1 at
14-22. We will address each in turn.

Charge A, AWOL, and Charge D, Failure to Follow Leave
Procedures 2
As further detailed in the initial decision, the period leading up to the
appellant’s first period of AWOL, from March 4-15, 2019, was one in which a
subordinate filed a harassment claim against the appellant and the appellant
complained that she had been subject to a hostile work environment, resulting in a
supervisor filing a claim on the appellant’s behalf. ID at 7. Citing the complaint
against the appellant, the agency temporarily reassigned her as it investigated.
ID at 8. In the period that followed, the appellant requested administrative leave,

2
As previously noted, the administrative judge merged Charge D with
specifications 11-12 of Charge A, and we agree with her having done so.
which the agency denied. Id. Rather than appearing and working in her
temporary assignment, the appellant used other leave for many months. Id.
In February 2019, the appellant submitted another request for annual leave
for March 4-16, 2019, which her supervisor denied, noting that the appellant had
been absent since October 2018, and indicating that there was work that needed to
be done. IAF, Tab 11 at 36. The appellant then submitted a request for accrued
or advanced sick leave for March 4-26, 2019. Id. at 42. Within the
accompanying comments section, the appellant remarked as follows: “Personal
[r]easons. Request related to workplace sexual harassment & continued
harassment & relation relating to such.” Id. She attached a note from a nurse
practitioner that simply stated that the appellant would be absent throughout the
period “due to illness.” Id. at 43. The agency denied this leave request, noting
that the appellant did not have any sick leave remaining, and warning that she
would be AWOL if she did not return to work. Id. at 46. Nevertheless, the
appellant did not return to work. On March 11, 2019, the appellant emailed the
agency, suggesting that the denial of her leave requests amounted to harassment
or reprisal, stating that she had an otherwise unidentified “family emergency,”
and stating that she was also “ill.” Id. at 48. Then, on March 17, 2019, she
emailed the agency, stating that she was still “ill,” and that she was “looking into
FMLA.” Id. at 51.
For specifications 1-10 of the AWOL charge, concerning March 4-15,
2019, the administrative judge found that the agency met its burden. ID at 7-13.
Among other things, she noted that the record contained a request for FMLA
leave and associated documentation for some subsequent periods, but not the
March 4-15 AWOL days. ID at 11-13.
On review, the appellant references that FMLA documentation, dated
April 29, 2019, and suggests that it should cover the March 4-15 AWOL period.
PFR File, Tab 1 at 16-17 (referencing IAF, Tab 11 at 113-16). The appellant is
effectively arguing that the agency should have retroactively granted her FMLA
leave even though she never requested FMLA leave for the relevant period.
We disagree and find that the agency was under no such obligation. The Office
of Personnel Management’s implementing regulations provide that an employee
may not retroactively invoke FMLA leave, absent an exception pertaining to
medical inability that does not apply here. 5 C.F.R. § 630.1203(b).
Turning to specifications 11-12 of the AWOL charge, which concerned
October 23-24, 2019, the administrative judge also found that the agency met its
burden. ID at 13-19. As further detailed in the initial decision, these were dates
the appellant failed to appear for work after her supervisor had denied her request
to telework so that she could work on her EEO matters from home and had
scheduled an in-person meeting with the appellant. ID at 15-18. The appellant
submitted a doctor’s note at some point after the fact, indicating that she should
be excused from work. IAF, Tab 37 at 12-13.
On review, the appellant argues that she was entitled to FMLA leave or
leave without pay (LWOP) for the October 23-24 dates in question. PFR File,
Tab 1 at 21-22. The administrative judge found that the appellant did not request
leave at the time, ID at 17, and the appellant has not directed us to any evidence
to the contrary. The appellant suggests that the agency should have nevertheless
assumed that her absence on October 23-24 was related to approved FMLA leave
from months earlier. Id. at 21. Alternatively, the appellant argues that the
agency was required to grant her LWOP. Id. at 21-22. We disagree.
Leading up to the dates in question, the appellant made no mention of a
medical need for leave. She instead asked to work on her EEO matters from
home, and then accused her supervisor of abuse when the supervisor indicated
that the appellant needed to come to the office. E.g., IAF, Tab 12 at 204-06.
On the morning of October 23, the appellant sent her supervisor three emails in
which she again requested telework to pursue her EEO matters, and again accused
her supervisor of harassment when the supervisor once again indicated that she
expected the appellant in the office. Id. at 213, 215, 218, 221, 223. In an
afternoon email, her fourth of the day to her supervisor, the appellant stated that
she was ill and going to the doctor due to the supervisor’s abuse. Id. at 223.
The appellant separately sent an email to other officials indicating that she was at
her local police station to file a report of threats or abuse by her supervisor.
Id. at 221, 229. She did not request leave in any of these emails, at which point
she was already AWOL. We found nothing showing that the appellant indicated
that she was entitled to FMLA leave later that day or the next when she was also
AWOL. In fact, it is not even apparent that the appellant had FMLA leave
remaining by the time of these absences. Compare IAF, Tab 11 at 119 (approving
the appellant’s request for FMLA leave for the period between March 18 and
June 16, 2019), with 5 C.F.R. § 630.1203 (describing an employee’s entitlement
to 12 weeks of FMLA leave during any 12-month period). Accordingly, we do
not find that the agency was obligated to retroactively place her in an FMLA
leave status, without any associated request by the appellant.
Regarding the appellant’s alternative argument, about LWOP, the Board
will consider whether an agency’s denial of LWOP, a category of leave which is
discretionary, was reasonable in some circumstances involving medical excuses.
Sambrano v. Department of Defense, 116 M.S.P.R. 449, ¶ 4 (2011).
Here, though, the appellant did not request LWOP for October 23-24, 2019.
Even if she had, we would find the agency’s denial of LWOP reasonable, given
the appellant’s many months of prior absences and the well-documented
circumstances surrounding her October 23-24 absence.

Charge B, conduct unbecoming a supervisor
To recall, each specification of the conduct unbecoming a supervisor
charge alleged a particular instance of the appellant changing the working
conditions of the same subordinate for the worse, without a legitimate reason for
doing so. IAF, Tab 11 at 5. The agency alleged that she removed a second
monitor the subordinate had been using, which was the private property of
another employee, only to place it in her own office unused, she instructed the
subordinate to remove his gear from a cabinet he had personally recovered from a
dumpster and used for years, and she directed the subordinate to vacate a shared
office and move his workspace into a hallway. Id.
On review, the appellant argues that these allegations were false or that her
conduct was not unbecoming. PFR File, Tab 1 at 17-19. To do so, she presents
several brief arguments. For example, the appellant reasserts her own testimony
and she challenges written statements by other witnesses because they signed
their statements without also initialing each page. Id. at 18-19. The appellant
also speculates that one witness may have been motivated to provide false
allegations so that he could take over the appellant’s position after her removal.
Id. at 19. Additionally, the appellant describes the acts as minor discretionary
decision making. Id.
We are not persuaded. Although the appellant testified that she removed
the subordinate’s monitor and access to the cabinet for the sake of fairness to
other employees, the administrative judge did not find that explanation credible,
especially when compared to the appellant’s prior explanations about the matters
and other witness testimony or statements about the surrounding circumstances.
ID at 19-21. For similar reasons, the administrative judge did not find the
appellant’s testimony about moving the subordinate’s work location for the
purpose of better communication among employees to be credible. ID at 22 -23.
The appellant’s brief arguments, such as her reassertion of her own testimony and
speculations about the motivations of others, do not provide a basis for disturbing
the administrative judge’s findings, which are grounded in credibility
determinations. See Karnes, 2023 MSPB 12, ¶ 13.

Charge C, failure to follow supervisory instructions
We next turn to the failure to follow supervisory instructions charge, of
which the administrative judge sustained specifications 1-9 and 11-13.
ID at 23-32. Broadly speaking, specifications 1-9 and 12-13 concerned different
dates and instructions that the appellant failed to follow pertaining to her time
and attendance reports. IAF, Tab 11 at 5-7. Specification 11 concerned the
appellant failing to appear after being instructed to attend a meeting. Id. at 6.
On review, the appellant challenges specifications 1-6, which are specific
to instructions between March 27 and June 10, 2019, asserting that she was
entitled to FMLA leave throughout that period so any instructions relating to her
submission of time and attendance reports were improper. PFR File, Tab 1 at 20.
We disagree. Throughout this time, the appellant was active in terms of her time
and attendance reports, so we discern no basis for concluding that it was improper
for the agency to give her instructions about the same.
For example, in specification 1, the agency instructed the appellant to
update her time and attendance report to reflect her new first-level supervisor.
IAF, Tab 11 at 53. Within hours, the appellant defied that instruction, choosing
her fourth-level supervisor as the individual listed as her supervisor for time and
attendance reporting. Id. at 55. It is therefore apparent that the appellant was not
incapacitated or otherwise unable to receive and respond to the instruction,
despite the appellant’s insinuation to the contrary.
In specification 2, the appellant and her supervisor exchanged numerous
emails about her time and attendance report covering the March 2019 AWOL
period. IAF, Tab 11 at 65-70. Her supervisor explained that the appellant’s
reporting of LWOP for the days at issue was not approved and needed to be
changed to reflect her AWOL status, whereas the appellant disagreed. Id. Again,
there is nothing in the record suggesting that the appellant was incapacitated and
unable to follow the instructions, or that it was otherwise improper for the agency
to instruct the appellant to correct her erroneous time and attendance reporting.
The appellant also challenges specifications 12-13, stating that she was not
AWOL, so the instructions to amend her timesheet to include AWOL hours were
not proper. PFR File, Tab 1 at 21. But as the administrative judge correctly
determined that the appellant was AWOL for those hours, we find the appellant’s
reliance on a contrary conclusion to be unavailing. 3

The appellant did not prove her affirmative defenses.
As previously stated, the appellant’s petition for review reasserts claims of
a due process violation or harmful error, PFR File, Tab 1 at 22-24, disability
discrimination, id. at 24-25, sex discrimination, id. at 25-27, reprisal for filing
EEO and OSHA complaints, id. at 27-29, and reprisal for whistleblowing,
id. at 29-30. We will address each in turn.

Due process or harmful error
On review, the crux of the appellant’s due process and harmful error
argument is that the response period for her proposed removal was too short.
PFR File, Tab 1 at 22-24. The agency proposed her removal on November 13,
2019. IAF, Tab 11 at 4-8. The proposal indicated that the appellant could submit
a response within 7 calendars days, while also scheduling a meeting November
21, 2019, for purposes of any oral response. Id. at 8. Although the appellant
sought an extension of at least a week, the agency denied that request. IAF, Tab
33 at 4-8. 4
To the extent that the appellant is suggesting that the agency committed a
harmful error, she has not carried her burden. A harmful error is an error by the
agency in the application of its procedures that is likely to have caused the
agency to reach a different conclusion from the one it would have reached in the
absence or cure of the error. Semenov v. Department of Veterans Affairs, 2023
3
The appellant has not presented any argument about specifications 7-9 and 11, and we
discern no error in the administrative judge’s conclusion that the agency met its burden.
PFR File, Tab 1 at 20-21. The appellant does present arguments on review about
specification 10, PFR File, Tab 1 at 20-21, but that is the specification the
administrative judge did not sustain, ID at 30, so we need not further consider the
matter.
4
The record suggests that the agency denied the request for extension because of the
deciding official’s limited availability and the agency’s belief that an unidentified
Executive Order required that it issue a decision within 14 days of the proposed
removal. IAF, Tab 33 at 5.
MSPB 16, ¶ 23. Here, the appellant has not identified any agency procedure that
it erred in applying or that any such error was harmful.
To the extent that the appellant is suggesting that the agency committed a
due process violation, we are not persuaded. The essential requirements of
constitutional due process for a tenured public employee are notice of the charges
against her, an explanation of the evidence, and an opportunity for her to present
her account of events. Cleveland Board of Education v. Loudermill, 470 U.S.
532, 546 (1985). The Board has further stated that due process requires, at a
minimum, that an employee being deprived of her property interest be given the
opportunity to be heard at a meaningful time and in a meaningful manner.
Palafox v. Department of the Navy, 124 M.S.P.R. 54, ¶ 9 (2016). 5
Here, the agency provided 7 days for the appellant to respond to her
proposed removal, and she responded within that period. IAF, Tab 10 at 30-45,
Tab 17 at 5-15. The appellant nevertheless suggests that she was unable to
provide a meaningful response in that amount of time because the documentation
attached to her proposed removal was extensive and she needed to gather
documentation of her own. PFR File, Tab 1 at 23. However, the appellant has
not provided any further explanation. She has merely speculated that additional
time would have led to a better-prepared response. We find that the appellant’s
limited argument does not establish that the agency denied her due process.
See, e.g., Henderson v. Department of Veterans Affairs , 123 M.S.P.R. 536, ¶¶
1-13 (2016) (finding that an appellant who was given 7 days to respond to their
proposed adverse action was not denied due process), aff’d 878 F.3d 1044 (Fed.
Cir. 2017); Ronso v. Department of the Navy, 122 M.S.P.R. 391, ¶ 13 (2015)
(same); Ray v. Department of the Army, 97 M.S.P.R. 101, ¶ 22 (2004) (finding
that an appellant may have preferred a longer response period, the agency’s

5
Though not invoked by the appellant, there is a statutory requirement that an
individual such as the appellant be given “a reasonable time, but not less than 7 days, to
answer orally and in writing and to furnish affidavits and other documentary evidence
in support of” her response to the proposed removal. 5 U.S.C. § 7513(b)(2).
denial of an extension did not violate his due process rights), aff’d, 176 F. App’x
110 (Fed. Cir. 2006).

Disability discrimination
Turning to her claim of disability discrimination, the appellant also
presents limited argument. She asserts that agency officials “failed to fully
engage in the requisite interactive process” and that they “generally ignored her
medical conditions and requests for leave by continuously changing her [leave] to
AWOL.” PFR File, Tab 1 at 24-25. The appellant further asserts that the
administrative judge considered the motivations of the deciding official, without
considering whether any others who played a role in her removal may have been
motivated by her disability. Id. at 25.
Following the issuance of the initial decision, the Board clarified that an
appellant may prove disability discrimination by demonstrating that it was a
motivating factor in the contested personnel action. Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶¶ 22, 40, 42. The administrative
judge found that the appellant did not present any credible evidence that her
disability motivated the agency’s removal action. ID at 38-39. In her petition,
the appellant is correct that the administrative judge’s discussion focused on the
deciding official, without mentioning any other agency official. PFR File, Tab 1
at 25; ID at 39. But the appellant has not elaborated by presenting argument or
evidence about the motivations of others, despite it being her burden to prove this
claim. PFR File, Tab 1 at 25. Accordingly, we find no reason to find that the
appellant proved that her disability was a motivating factor in the removal action
before us. 6
The administrative judge found that the appellant did not prove her failure
to accommodate claim because, inter alia, the appellant declined the agency’s
6
Because we find that the appellant failed to prove that disability discrimination was a
motivating factor in the agency’s action, we need not reach the question of whether the
appellant proved that it was a but-for cause of the agency’s action. Pridgen, 2022
MSPB 31.
offer to engage in the reasonable accommodation process. ID at 37-38.
The appellant’s petition for review does not identify any evidence to the contrary,
nor does it present substantive argument to the contrary. Her bare assertion that
the agency failed to fully engage in the interactive process is therefore
unavailing. See 5 C.F.R. § 1201.115(a) (providing that a petition for review must
identify specific evidence in the record demonstrating any alleged erroneous
findings of material fact and explain why the challenged factual determinations
are incorrect).

Sex discrimination
Like her disability discrimination claim, the motivating factor standard
applies to the appellant’s claim of sex discrimination, so we modify the initial
decision to incorporate this standard. Pridgen, 2022 MSPB 31, ¶¶ 20-22.
The administrative judge found that the appellant submitted a bare allegation but
no credible evidence that the agency’s actions were motivated by sex.
ID at 40-41. The appellant reasserts her sex discrimination claim on review, but
still presents little more than speculation that sex was a motivating factor in her
removal. PFR File, Tab 1 at 25-26. Without more, the appellant has not shown
that the administrative judge erred in denying this affirmative defense. 7
See 5 C.F.R. § 1201.115(a).

Reprisal for EEO complaints
Claims of retaliation for opposing sex discrimination in violation of Title
VII are analyzed under the same framework as a sex discrimination claim.
Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶ 32; Pridgen, 2022 MSPB 31,
¶ 30. However, a but-for causation standard is applicable to retaliation claims
based on activity protected under the Rehabilitation Act. .The but-for standard is

7
The only portion of the record the appellant cites is her written declaration from
below. PFR File, Tab 1 at 26 (referencing IAF, Tab 14 at 26-31). By itself, that
declaration is not persuasive, especially when accounting for the administrative judge’s
conclusion that the appellant regularly sought to manipulate information to create an
inaccurate narrative and was not credible. ID at 6.
more stringent than the motivating factor standard. Desjardin, 2023 MSPB 6,
¶ 31; Pridgen, 2022 MSPB 31, ¶ 47.
On review, the appellant correctly notes that the administrative judge’s
analysis for this claim also focused on the deciding official, without explicitly
discussing whether others may have been motivated to retaliate for her EEO
activity. PFR File, Tab 1 at 27; ID at 42. But she once again fails to provide any
substantive or persuasive argument to support her claim. Aside from summarily
asserting that some relevant officials were implicated by some of her EEO
activities, the appellant’s petition includes no substantive argument or reference
to evidence that would prove by preponderant evidence that her EEO activity was
even a motivating factor in her removal. 8 Id. at 28-29. We therefore find that the
appellant has not met her burden.

Reprisal for OSHA complaints
To the extent that the appellant alleged that her removal was reprisal for
filing OSHA complaints, the administrative judge considered the matter under
both 5 U.S.C. § 2302(b)(8), a provision prohibiting whistleblower reprisal, and
(b)(9)(A)(ii), a provision prohibiting reprisal for the filing of a complaint that
does not regard remedying whistleblower reprisal, but she found the claim
unavailing. ID at 41-42, 45. The administrative judge explained that while it was
undisputed that the appellant filed OSHA complaints, the appellant failed to
prove that her removal could have been retaliation for OSHA complaints, that
there was a genuine nexus between her removal and OSHA complaints, or that her
OSHA complaints contained protected whistleblowing disclosures. ID at 42, 45.
For an appellant to prevail on an affirmative defense of retaliation for
activity protected under 5 U.S.C. § 2302(b)(9)(A)(ii), if she does not allege
reprisal for EEO activity protected under Title VII, she must show that: (1) she
8
The appellant once again cited her written declaration from below, but no other
evidence of record. PFR File, Tab 1 at 28-29 (referencing IAF, Tab 14 at 26-31).
For the reasons already discussed in this decision and the initial decision, that
declaration is not particularly persuasive. Supra, n.7.
engaged in protected activity; (2) the accused official knew of the activity; (3) the
adverse action under review could have been retaliation under the circumstances;
and (4) there was a genuine nexus between the alleged retaliation and the adverse
action. Mattison v. Department of Veterans Affairs, 123 M.S.P.R. 492, ¶ 8
(2016). On the other hand, under 5 U.S.C. § 2302(b)(8), it is a prohibited
personnel practice to take a personnel action because of any disclosure of
information by an employee that the employee reasonably believes evidences any
violation of law, rule, or regulation, gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific danger to public health
or safety. Fisher v. Department of the Interior, 2023 MSPB 11, ¶ 5.
In her petition for review, the appellant has not presented any substantive
arguments about her OSHA complaints or the administrative judge’s findings
about the same. She does not, for example, identify any associated evidence of
record, describe the nature of her OSHA complaints, or explain why she believes
they played a role in her removal action.
Based upon our own review of the record, we located some indications that
the appellant filed an OSHA complaint about rodents in the office where she
worked. 9 The complaint alleged that the agency had denied her resulting request
to telework full-time, despite rodent feces throughout the office causing her
months of flu-like symptoms and multiple trips to an urgent or emergency care
center. IAF, Tab 34 at 144-50. The agency provided a thorough response to
OSHA officials that, inter alia, described a physical inspection, the absence of
any physical sign of rodents in the building, and the absence of any other
individuals reporting that they had seen rodents or signs of their presence.
Id. at 142-43. Based upon this limited evidence and the absence of further
9
The administrative judge seemed to indicate that she did not consider the OSHA
complaint because it was not admitted into the record, and the record was therefore
devoid of any OSHA complaint. ID at 45 n.6 (referencing IAF, Tab 34 at 145, Tab 65).
Because we were able to locate this information in the record and are unable to find any
explanation for why the administrative judge did not admit this evidence into the
record, we are considering the evidence.
argument from the appellant, we agree with the administrative judge’s conclusion
that the appellant failed to meet her burden for her claim of reprisal relating
to this or any other OSHA complaint under 5 U.S.C. § 2302(b)(8) or 5 U.S.C.
§ (b)(9)(A)(ii). See 5 C.F.R. § 1201.115(a).

Reprisal for whistleblowing activities
Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), to
prevail on a prohibited personnel practice affirmative defense in a chapter 75
appeal that independently could form the basis of an individual right of action
appeal, once the agency proves its adverse action case by a preponderance of the
evidence, the appellant must demonstrate by preponderant evidence that she made
a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in protected
activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and that the
disclosure or activity was a contributing factor in the adverse action.
Fisher, 2023 MSPB 11, ¶ 5. If the appellant meets this burden, then the burden
of persuasion shifts to the agency to prove by clear and convincing evidence that
it would have taken the same action in the absence of the appellant’s protected
disclosure or activity. Id. In determining whether the agency has met this
burden, the Board will consider all the relevant factors, including the following:
(1) the strength of the agency’s evidence in support of its action; (2) the existence
and strength of any motive to retaliate on the part of the agency officials involved
in the decision; and (3) any evidence that the agency takes similar actions against
employees who did not engage in such protected activity, but who are otherwise
similarly situated. Carr v. Social Security Administration, 185 F.3d 1318, 1323
(Fed. Cir. 1999).
The administrative judge applied these standards and found that the
appellant did not prove that her OSHA complaints contained the type of
disclosure protected by section 2302(b)(8), and we agree. ID at 42-45.
Conversely, the administrative judge found that the appellant’s OIG complaint
was protected under section 2302(b)(9)(C), regardless of its contents.
Id.; see Fisher, 2023 MSPB 11, ¶ 8. She further found that the appellant satisfied
her burden regarding the contributing factor element because the deciding official
testified that he did not remember the appellant’s OIG complaint, but “probably
was briefed” on it at some point. ID at 45-46; Hearing Transcript, Day 3 (HT3)
at 112 (testimony of deciding official).
Because the administrative judge found that the appellant presented this
prima facie case of reprisal under section 2302(b)(9)(C), she shifted the burden of
persuasion to the agency. The administrative judge found that there was
overwhelming evidence in support of the agency’s removal action, there was no
evidence that the deciding official had any motive to retaliate, and there was no
evidence of similarly situated employees who were not whistleblowers. ID at 46.
On review, the appellant correctly notes that the administrative judge’s
analysis discusses the potential motive of the deciding official but no other
individual. PFR File, Tab 1 at 29-30. However, the appellant presents no other
substantive argument regarding her whistleblower reprisal claim.
Nonetheless, we modify the initial decision to supplement
the administrative judge’s Carr factor analysis while reaching the same
conclusion—that the appellant’s whistleblower reprisal claim fails. Like the
administrative judge, we find that the evidence in support of the agency’s
removal action is strong. There is abundant documentary evidence showing how
the appellant was absent from work for many months, culminating with her
AWOL on several dates spanning many more months, despite warnings.
ID at 7-19; supra, ¶¶ 17-24. There is also ample evidence, including numerous
emails and other documentation, showing how the appellant repeatedly defied
simple and unambiguous instructions, mostly as she sought to avoid work and
take more leave than allowed. ID at 23-32; supra, ¶¶ 28-32. Lastly, there is solid
evidence of the appellant engaging in unbecoming conduct towards her
subordinate, including some admissions by the appellant. ID at 19-23;
supra, ¶¶ 25-27. The limited argument or evidence the appellant presented to
defend against these charges was not persuasive. To recall, the administrative
judge did not find the appellant to be credible. ID at 6. Among other things, she
explained how the appellant had an ever-changing story and regularly tried to
manipulate information to create an inaccurate narrative. Id.
We recognize that the administrative judge did not sustain one of the
agency’s charges, about failing to follow policy by recording a meeting without
permission, and one specification of the failure to follow supervisory instructions.
However, these were not particularly consequential in the grand scheme of the
removal action, which spanned many acts over more than a year. IAF, Tab 11
at 4-7.
Turning to the motive to retaliate, we note that although the appellant has
repeatedly referenced OIG complaints, she provided limited details about the
same. Within her petition for review, the appellant’s only mentions of OIG
complaints are cursory ones in which she recounts the wide variety of complaints
she has lodged against the agency. PFR File, Tab 1 at 27-28. While doing so, the
appellant references just one piece of evidence—a declaration by the appellant, in
which she makes no mention of an OIG complaint. PFR File, Tab 1 at 28
(referencing IAF, Tab 14 at 26-31). Elsewhere, in the appellant’s “affirmative
defense brief,” she described her OIG complaint as occurring in February 2018.
Id. at 13. But she did not describe the contents or subject of the complaint, nor
did she point to evidence of the same. Id. Separately, the same pleading includes
a November 2019 email from the appellant to OIG, in which she complains of
years-long harassment that had culminated with her impending removal and the
appellant fearing for her life. Id. at 113-14.
Within her testimony, the appellant described what seems to have been
other OIG complaints about agency officials engaging in sexual harassment.
HT3 at 151-52, 155-58 (testimony of the appellant). There is also testimony from
another witness suggesting that the appellant filed a different OIG complaint at
some point, which alleged that one of her subordinates sexually harassed her—the
subordinate who was subject to the appellant’s unbecoming conduct. HT1 at 168
(testimony of appellant’s subordinate). Finally, the appellant’s closing brief once
again mentions that she filed an OIG complaint, but this time the complaint is
merely identified as occurring in October 2019. IAF, Tab 64 at 18. This closing
brief does not elaborate on the alleged complaint, and it only points to a portion
of the record pertaining to her OSHA complaint about rodents. Id. (referencing
IAF, Tab 34 at 145).
This is just some of the history of complaints described in the record, most
of which we were unable to corroborate with further documentation. The lone
exception we came across is a February 2019 OIG report, in which OIG
concluded that it could not substantiate the appellant’s claim of harassment by a
former supervisor. 10 IAF, Tab 36 at 5-11. Specific to the appellant’s theory of
reprisal, we also came across testimony in which appellant’s counsel asked why
she believed the agency would retaliate for “an OIG complaint,” and the appellant
simply responded that “basically, [it] just turned the heat up on the harassment.”
HT3 at 251-52 (testimony of the appellant).
We acknowledge that relevant officials may have had some motive to
retaliate for any OIG complaint of which they were aware. 11 Broadly, the
appellant was routinely filing complaints about the agency both internally and
with external parties such as the OIG and local police. This was surely
frustrating to at least some agency officials. However, the lone OIG report we
10
Following her initial complaints about this supervisor, in March 2018, the appellant
was reassigned to a different supervisor in May 2018. ID at 7; IAF, Tab 38 at 10.
For context, the appellant’s conduct unbecoming a supervisor occurred prior to this
change in her chain of command, but all other conduct underlying her removal occurred
nearly a year or more after. IAF, Tab 11 at 4-7. The former supervisor was not the
proposing or deciding official, and he did not testify at the hearing below.
11
The Federal Circuit has cautioned the Board against taking an “unduly dismissive and
restrictive view” of retaliatory motive, holding that, “[t]hose responsible for the
agency’s performance overall may well be motivated to retaliate even if they are not
directly implicated . . . , and even if they do not know the whistleblower personally, as
the criticism reflects on them in their capacities as managers and employees.”
Whitmore v. Department of Labor, 680 F.3d 1353, 1370 (Fed. Cir. 2012)
found in the record indicated that the appellant’s allegations could not be
substantiated, and those allegations were directed at an individual who played
little if any role in the appellant’s removal. IAF, Tab 36 at 5-11.
Weighing the Carr factors together, we find that the agency would have
taken the same removal action in the absence of the appellant’s protected
whistleblowing activity. 12 Although agency officials may have harbored some
motive to retaliate for the appellant’s protected whistleblowing activity, this is far
outweighed by the strength of the evidence in support of the agency’s removal
action. The appellant’s whistleblower reprisal claim is, therefore, unsuccessful.

Removal was a reasonable penalty.
When, as here, the Board does not sustain all the charges, it will carefully
consider whether the sustained charges merit the penalty imposed by the agency.
Moncada v. Executive Office of the President , 2022 MSPB 25, ¶ 39. The Board
may mitigate the penalty imposed by the agency to the maximum penalty that is
reasonable in light of the sustained charges as long as the agency has not
indicated in either its final decision or in proceedings before the Board that it
desires that a lesser penalty be imposed for fewer charges. Id.
The administrative judge applied this standard and found that removal was
reasonable. ID at 47-50. The appellant disagrees. PFR File, Tab 1 at 30-33.
In particular, she characterizes hers as an unblemished and highly successful
career of 23 years. Id. at 32. The deciding official and administrative judge
accounted for the same, recognizing that this was a mitigating factor, but
concluded that the appellant failed to take responsibility for her misconduct or
show remorse for her actions and was a poor candidate for rehabilitation.
ID at 49; IAF, Tab 10 at 26-27.

12
As already mentioned, the administrative judge found that there was no evidence
pertaining to the third Carr factor, about similarly situated non-whistleblowers, which
effectively removes the factor from the analysis. See Whitmore, 680 F.3d at 1374.
 The appellant separately argues that the deciding official and
administrative judge erred by characterizing her lack of remorse as an
aggravating factor, because this essentially penalized her for mounting a defense.
PFR File, Tab 1 at 33 (citing Raco v. Social Security Administration,
117 M.S.P.R. 1 (2011)). In fact, what the deciding official and administrative
judge found was that the appellant lacked rehabilitation potential because she
failed to take responsibility for her actions or show remorse. ID at 49-50; IAF,
Tab 10 at 29. We agree with that assessment. See, e.g., IAF, Tab 10 at 30-45,
Tab 17 at 5-10. The appellant has not pointed us to anything reflecting otherwise.
This contrasts with the case cited by the appellant, where an employee confessed
to her inappropriate conduct and apologized for it before mounting a defense to
her proposed removal by way of explaining her behavior and identifying
mitigating factors. Racco, 117 M.S.P.R. 1, ¶ 16.
In her petition for review, the appellant has not presented any other
substantive arguments about the reasonableness of her removal, and we find no
basis for reaching a conclusion different than that of the administrative judge.
Among other things, some of the sustained charges are quite serious. See Thomas
v. Department of the Army, 2022 MSPB 35, ¶ 20 (recognizing that the nature and
seriousness of the offense is the most important factor in assessing the penalty).
This includes her conduct unbecoming, which the proposing and deciding
officials described as negative and unequal treatment of a subordinate she
disfavored for a promotion after he was nevertheless selected for that promotion.
E.g., IAF, Tab 10 at 25, Tab 11 at 14. Plus, the appellant holds a supervisory
position, and she repeated some of the conduct underlying this action in the face
of warnings that it would lead to discipline. Id. at 25-26; see, e.g.,
Thomas, 2022 MSPB 35, ¶ 21 (recognizing that supervisors may be held to a
higher standard of conduct). Weighing these and other relevant Douglas factors,
we agree with the administrative judge’s conclusion that removal is a reasonable
penalty for the sustained charges and specifications. See Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981) (providing a nonexhaustive list of
factors that might be relevant when assessing the reasonableness of the penalty).

NOTICE OF APPEAL RIGHTS 13
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 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).
13
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 appropriate in any matter.
 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. 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.

(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. 420 (2017). If you have a representative in this case,
and your representative 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
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 any court of appeals of
competent jurisdiction. 14 The court of appeals must receive your petition for
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

14
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 President on
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 jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.