Frericks Lonnie v. Department of the Navy

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

LONNIE FRERICKS, DOCKET NUMBER
Appellant, PH-0752-20-0355-I-1

v.

DEPARTMENT OF THE NAVY, DATE: April 5, 2024
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Richard R. Renner , Esquire, Silver Spring, Maryland, for the appellant.

Luke K. McPherson , Indian Head, Maryland, 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 his removal. Generally, we grant petitions such as this one 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
 2

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
expand upon and clarify the administrative judge’s analysis regarding
whistleblower reprisal and disability discrimination, we AFFIRM the initial
decision.
The following facts, as further detailed throughout the record and the initial
decision, appear to be undisputed. The appellant most recently held the position
of Technician in the agency’s Explosive Ordnance Disposal (EOD) Department,
working at a facility in Indian Head, Maryland. Initial Appeal File (IAF), Tab 35,
Initial Decision (ID) at 2. In February 2020, the agency proposed his removal
from service for “unacceptable conduct.” IAF, Tab 4 at 31-45.
The proposal included a lengthy narrative surrounding three incidents or
specifications. Id. at 31-34. Chronologically, the first alleged that the appellant
had a verbal altercation with a coworker on January 2, 2019, resulting in a
bullying accusation consistent with other employees’ reported fears of the
appellant. Id. at 34. The second alleged that the appellant had a verbal
altercation with another coworker on and around June 4, 2019, which included the
appellant getting in the coworker’s face and making demeaning comments. Id.
at 33. The third alleged that the appellant had an altercation with his supervisor
on October 24, 2019, which culminated with the appellant punching his computer
screen and desk, and yelling at his supervisor while standing just inches from the
supervisor’s face. Id. at 32. The deciding official sustained the removal, finding
all the specifications proven. IAF, Tab 5 at 42-56.
 3

The appellant filed the instant appeal to challenge his removal. IAF, Tab 1.
After developing the record and holding the requested hearing, the administrative
judge sustained the action. E.g., Hearing Transcript, Volume 1 (HT1); Hearing
Transcript, Volume 2 (HT2); Hearing Transcript, Volume 3 (HT3). 2 She first
found that the agency proved its specifications and charge. ID at 4-9 (October 24
incident), 9-16 (June 4 incident), 16-20 (January 2 incident and accompanying
reports). The administrative judge next found that the appellant failed to prove
his claims of disability discrimination, ID at 21-24, or reprisal for equal
employment opportunity (EEO) activity, ID at 24-27.
Regarding his whistleblower reprisal claim, the administrative judge found
that the appellant met his burden of proving that he engaged in some protected
disclosures and activities but failed to meet his burden for others. ID at 27-35.
Of those that remained, the administrative judge found that the appellant proved
some, but not all, were a contributing factor in his removal. ID at 35-38. She
then shifted the burden and found that the agency met its burden of rebutting the
appellant’s prima facie case of reprisal. ID at 38-40.
The administrative judge also found that the appellant failed to prove his
harmful error claim. ID at 40-45. Finally, the administrative judge found that the
agency proved the nexus requirement, as well as the reasonableness of its penalty.
ID at 45-48.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 12. 3 After a lengthy description of background information, id.
at 13-39, and a statement of the case, id. at 39-42, the appellant’s petition
presents several specific legal arguments, none of which concern the agency’s
2
We note that volumes 1 & 3 of the transcript are the reverse of what might be
expected. Volume 1 details the third day of the hearing while volume 3 details the first
day of the hearing.
3
The appellant requested and received multiple extensions, so his petition is timely,
despite appearing otherwise. PFR File, Tabs 2, 4, 6. The appellant also requested and
received permission to submit a petition that is nearly double the Board’s ordinary
length limitation. PFR File, Tab 10.
 4

proof of its charge. Instead, the appellant reasserts his claims of harmful
procedural error, id. at 42-43, whistleblower reprisal, id. at 43-68, and disability
discrimination. Id. at 68-70. The appellant also challenges the reasonableness of
the penalty, id. at 70-71, and the administrative judge’s decision to disallow
certain witnesses, id. at 71. The agency has filed a response to the appellant’s
petition, 4 to which the appellant has replied. 5 PFR File, Tabs 15, 25. 6

The appellant failed to prove his harmful error claim.
As previously noted, the administrative judge found that the agency proved
its charge, and the appellant has not substantively challenged those findings on
review. Accordingly, our analysis will begin where the appellant’s petition began
—with his harmful procedural error affirmative defense.

4
The agency’s response appeared to be untimely by a day. Compare PFR File, Tab 14
(indicating that the filing deadline was October 11, 2021), with PFR File, Tab 15
(agency’s response filing, submitted on October 12, 2021). But, as the agency has
correctly noted, October 11, 2021, was a Federal holiday. PFR File, Tab 19. Therefore,
we find the response timely, pursuant to 5 C.F.R. § 1201.23.
5
The appellant requested and received permission to submit a reply that exceeded the
Board’s length limitations. PFR File, Tab 24.
6
The appellant has requested leave to submit a motion to strike evidence included in the
agency’s response brief about the appellant’s harmful error claim. PFR File, Tab 21.
He asserts that the evidence should have been submitted below, not on review. Id. The
agency has requested leave to respond to the appellant’s reply brief because it contained
new arguments. PFR File, Tab 27. The appellant filed a pleading in opposition. PFR
File, Tab 29.
Both parties’ requests for leave to submit further pleadings are denied. We will not
consider the evidence included with the agency’s response brief. It was submitted for
the first time on review, without any indication that it was previously unavailable. See
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (recognizing that, under
5 C.F.R. § 1201.115, the Board will not consider evidence submitted for the first time
with the petition for review absent a showing that it was unavailable before the record
was closed despite the party’s due diligence). Plus, the evidence is not necessary to our
conclusion that the appellant’s harmful error claim is unavailing. We also will not
consider any arguments contained in the appellant’s reply brief that exceed the bounds
of the agency’s response. See 5 C.F.R. § 1201.114(a)(4) (providing that a reply to a
response to a petition for review is limited to the factual and legal issues raised by
another party in the response to the petition for review; it may not raise new allegations
of error).
 5

Reversal of an action for harmful error is warranted where a procedural
error likely had a harmful effect upon the outcome of the case before the agency.
Henton v. U.S. Postal Service, 102 M.S.P.R. 572, ¶ 15 (2006). Harmful error
cannot be presumed, and the burden of showing harmful error lies with the
appellant. Id. To show harmful error, an appellant must prove that any
procedural error was likely to have caused the agency to reach a conclusion
different from the one it would have reached in the absence or cure of the error.
Id.
Within the proposal to remove the appellant, the agency included an
analysis of the factors considered for deciding on a penalty. IAF, Tab 4 at 34-39.
Among other things, this analysis described his past disciplinary record as
including letters of reprimand in September 2010 and June 2015, along with
several other less formal interventions. Id. at 36.
Broadly speaking, the appellant’s harmful error claim concerns his ability
to review those September 2010 and June 2015 reprimands before the deciding
official issued her decision—reprimands that the appellant has since disputed in
terms of authenticity or applicability. E.g., ID at 44-45; PFR File, Tab 12
at 42-43. The administrative judge was not persuaded. She provided a detailed
accounting of the parties’ extensive communications during this response period,
which included the agency’s instructions for obtaining all the materials relied
upon, the appellant’s admitted failure to follow those instructions, and the
appellant’s apparent request for other materials outside the proper channels. ID
at 40-43. The administrative judge also noted that the deciding official testified
that she did not review the appellant’s past reprimands or rely upon them in
reaching her decision. ID at 45.
On review, the appellant argues that the agency’s instruction for obtaining
materials relied upon for the proposed removal—which consisted of calling a
particular individual by a phone number provided—amounted to an impermissible
“hurdle.” PFR File, Tab 12 at 42. The appellant further argues that the harm
 6

from this was evident because the administrative judge faulted the appellant for
failing to review and challenge the reprimands during the response period. Id.
We are not persuaded. Even if we were to find that the circumstances
amounted to an agency error, the appellant’s argument about the resulting harm is
misplaced. The appellant’s petition contains no argument that the agency would
have reached a different conclusion if it had not erred in the way the appellant has
alleged. To the contrary, the deciding official’s testimony, as recounted in the
initial decision, indicates that the agency would have reached the same
conclusion, since she did not rely on either of the reprimands the appellant now
disputes. ID at 45.

The appellant made some disclosures protected under section 2302(b)(8) and
engaged in some activity protected under section 2302(b)(9).
Pursuant to 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, the appellant must first demonstrate by preponderant evidence
that he 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. See Alarid
v. Department of the Army, 122 M.S.P.R. 600, ¶¶ 12-13 (2015) (recognizing that,
under the WPEA, an appellant may raise an affirmative defense of whistleblower
retaliation based on protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B),
(C), and (D)); Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 19
(2013) (stating the foregoing proposition concerning disclosures protected by
5 U.S.C. § 2302(b)(8)). 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. Alarid, 122 M.S.P.R. 600, ¶ 14.
 7

The administrative judge addressed the following disclosures or activities
in concert with the appellant’s whistleblower reprisal claim:
Disclosure 1 – mismanagement of funding for improvised nuclear
device (IND) countermeasures,
Disclosure 2 – the dumping of beryllium tools in a river,
Activity 3 – an EEO complaint that alleged whistleblower reprisal
pertaining to Disclosure 1, 7
Disclosure 4 – misuse of the agency’s 3D printer,
Disclosure 5 – safety concerns surrounding the fumes caused by the
installation of foam tiles, and
Disclosure 6 – his supervisor’s fishing during a work trip.
ID at 29-35. The administrative judge found that the appellant met his burden of
proving that Disclosure 1, Disclosure 2, Activity 3, and Disclosure 5 were
protected, but failed to do the same for Disclosure 4 or Disclosure 6. ID at 29-35.
The appellant disagrees with respect to Disclosures 4 and 6, while also arguing
that the administrative judge ignored some other protected activities. PFR File,
Tab 43-45. We will address each in turn.

Disclosure 4
On review, the appellant describes Disclosure 4 as consisting of him asking
a coworker, “Hey [], when [were] you going to tell me you broke the printer?”
PFR File, Tab 12 at 43. This question occurred at the start of the January 2, 2019
altercation underlying the agency’s removal action. See, e.g., IAF, Tab 4 at 34,
Tab 5 at 63-65; ID at 16-20.

7
When discussing this matter, the administrative judge correctly referenced the WPEA
provision that protects an individual such as the appellant from reprisal for “the
exercise of any appeal, complaint, or grievance right granted by any law, rule, or
regulation, [] with regard to remedying a violation of [section 2302(b)(8)]”). ID at 33;
5 U.S.C. § 2302(b)(9)(A)(i). However, the initial decision otherwise described the
appellant’s EEO complaint alleging whistleblower reprisal as a “protected disclosure.”
ID at 33-34. To be most accurate and clear, we are labeling the matter as “Activity 3,”
rather than “Disclosure 3,” since this is an activity protected under
section 2302(b)(9)(A)(i), rather than a disclosure protected under section 2302(b)(8).
 8

A protected disclosure is a disclosure that an appellant reasonably believes
evidences a violation of any 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. Chavez v. Department of Veterans Affairs,
120 M.S.P.R. 285, ¶ 18 (2013). A reasonable belief exists if a disinterested
observer with knowledge of the essential facts known to and readily ascertainable
by the appellant could reasonably conclude that the actions of the Government
evidence one of the categories of wrongdoing listed in section 2302(b)(8)(A). Id.
The appellant need not prove that the matter disclosed actually established one of
the types of wrongdoing listed under section 2302(b)(8)(A); rather, the appellant
must show that the matter disclosed was one which a reasonable person in his
position would believe evidenced any of the situations specified in 5 U.S.C.
§ 2302(b)(8). Id.
The administrative judge found that the appellant failed to prove
Disclosure 4 was protected because he did not establish that there was any related
agency rule and because the appellant had asked the coworker a question, rather
than disclosing the type of wrongdoing covered under the statute. ID at 34. The
appellant disagrees, pointing us to hearing testimony. PFR File, Tab 12 at 25-27,
43-44 (referencing HT2 at 94-95, 182-83; HT3 at 94, 102). According to the
appellant, this hearing testimony proved that his coworker “violated workplace
rules about getting training and permission to use the 3D printer and to report
damage to that printer.” Id. at 43.
We are not persuaded. Despite the appellant’s suggestion to the contrary,
his question did not clearly implicate any identifiable violation of law, rule, or
regulation. Compare Salerno v. Department of the Interior, 123 M.S.P.R. 230,
¶ 6 (2016) (recognizing that disclosures must be specific and detailed, not vague
allegations of wrongdoing), with Ayers v. Department of the Army,
123 M.S.P.R. 11, ¶ 24 (2015) (recognizing that an individual need not identify a
statutory or regulatory provision by a particular title or number “when the
 9

statements and the circumstances surrounding the making of those statements
clearly implicate an identifiable violation of law, rule, or regulation”) (quoting
Langer v. Department of the Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001)).
The hearing testimony the appellant has cited, including his own, shows
that the appellant had some informal authority regarding care for the 3D printer.
HT2 at 94-95 (testimony of Technician), 182-83 (testimony of the appellant);
HT3 at 94, 102 (testimony of Branch Manager). But other evidence, including
the appellant’s response to his proposed removal, shows that the coworker
contacted “the Code D25 lead when it comes to the 3D printers” as the
malfunction occurred, who relayed the information to the appellant, leading to the
appellant’s alleged disclosure 2 days later. IAF, Tab 5 at 28, 63. According to
subsequent notes from interviews with the appellant, the coworker, and their
differing supervisors about the confrontation, the cause of the malfunction was
unknown. Id. at 63. The notes further indicate that written instructions would be
added near the 3D printer, indicating that any future malfunction should be
reported to the appellant, presumably because there were no such instructions at
the time. Id. at 64.
These circumstances show that the appellant did not have a reasonable
belief that he was making the type of disclosure protected by the whistleblower
statute as he asked, “when [were] you going to tell me you broke the printer?”
This is particularly so because the coworker was not within the same chain of
command as the appellant, there was no written or otherwise clearly established
and implicated rule about the 3D printer at the time, and the appellant knew that
the coworker had immediately alerted a third party about the printer’s
malfunction, who then relayed the information to the appellant. The coworker
did not hide the malfunction, leave it to languish, or engage in any other
impropriety. The appellant’s reliance on cursory testimony indicating that
individuals were supposed to “go through” him for 3D printing or “let [him]
know” in the case of a malfunction do not persuade us otherwise. E.g., HT2 at 95
 10

(testimony of Technician); HT3 at 94 (testimony of Branch Manager). When the
appellant asked his coworker about the 3D printer, he may have been vaguely
implying some sort of wrongdoing, and he was certainly initiating what would
become some of the misconduct relied upon in this removal action. He was not,
however, making a protected disclosure.

Disclosure 6
To recall, the appellant’s removal was also based on an altercation he had
with his first-line supervisor, on October 24, 2019, which stemmed from the
supervisor taking a project away from the appellant. Supra p. 2. Later that day,
the first-line supervisor emailed the appellant. Among other things, this email
message reiterated that he was taking the project away from the appellant because
he did not find the appellant’s work on the matter acceptable. IAF, Tab 30 at 7.
In an email response, the appellant copied several management officials.
Id. at 6. Among other things, the appellant asserted that his supervisor had failed
to provide any guidance for the project, so he had performed under the guidance
he received from others during a conversation in which the supervisor was not
involved, “because [the supervisor] left before noon to go fishing (having spent
only 2 hours with the warfighter) on what was supposed to be a two-day trip to
Virginia Beach.” Id. at 6. That statement about his supervisor fishing is
Disclosure 6.
The circumstances surrounding this disclosure are further detailed in the
initial decision. ID at 7-9, 34-35. Generally speaking, the appellant and his
first-line supervisor had attended a meeting in Virginia Beach. ID at 7, 9. The
appellant drove home after the meeting. Id. His first-line supervisor, who had a
longer drive ahead of him, did not. Having driven 5 hours to Virginia Beach and
attended the 2-hour meeting, the appellant’s supervisor stuck with his previously
made plan to stay overnight and drive home the next day. ID at 7. The limited
but seemingly uncontradicted evidence about the remainder of the supervisor’s
day was testimony indicating that he teleworked for 1 additional hour, before
 11

fishing off a local pier during his off-duty time. HT3 at 25 (testimony of
deciding official), 125 (testimony of supervisor).
The administrative judge did not find Disclosure 6 protected. ID at 34-35.
Among other things, she noted that the appellant’s subsequent descriptions about
the disclosure, while facing removal, grossly overstated its actual contents. ID
at 7-8, 35; see IAF, Tab 5 at 31, 34. She also found the first-line supervisor’s
testimony about the trip credible, while the appellant’s disclosure and subsequent
statements about the matter were inconsistent and embellished. ID at 9, 34-35.
On review, the appellant has characterized Disclosure 6 as protected
because it revealed time and attendance fraud. PFR File, Tab 12 at 45. In his
brief argument about the same, the appellant asserts that the administrative judge
improperly relied on the timing and motive for the disclosure to find that it was
not protected. Id. (citing 5 U.S.C. § 2302(f)(1)(C), (G) (providing that a
disclosure is not excluded from protection because of an individual’s motive or
the time passed since the alleged wrongdoing)). We disagree.
The administrative judge did not find that the appellant’s motive or timing
precluded him from proving that Disclosure 6 was protected. She instead found
that the appellant’s motive, timing, and other circumstances showed that he did
not have a reasonable belief that he was disclosing the type of wrongdoing
covered by the whistleblower statute. See, e.g., Ayers, 123 M.S.P.R. 11, ¶ 20
(recognizing that a disclosure is not excluded from protection based on an
appellant’s motive in making it, but motive may be relevant to the determination
of a reasonable belief). Among other things, the circumstances included his
actual disclosure, followed by his inconsistent recasting of the disclosure as
revealing something more nefarious, without any substantive support. Put
another way, although the appellant has now characterized his disclosure as one
of time and attendance fraud, he has not directed us to any reason why he would
have believed that the supervisor engaged in fraud, as opposed to him following
whatever time, attendance, travel, or telework rules might apply to the
 12

circumstances—where the supervisor had driven 5 hours to attend a 2-hour
meeting and would need to drive back either the same day or the next. See, e.g.,
Ramos v. Department of the Treasury, 72 M.S.P.R. 235, 240-41 (1996) (finding
that an individual’s disclosure was based purely on speculation, not a reasonable
belief of illegal activity, so it was not protected); Sobczak v. Environmental
Protection Agency, 64 M.S.P.R. 118, 122 (1994) (an appellant’s disclosure does
not satisfy the reasonable belief requirement if he is merely reporting unsupported
speculation). Accordingly, we agree with the administrative judge’s
determination that the appellant failed to meet his burden for Disclosure 6.

Additional activities
The appellant’s petition for review next includes a single paragraph,
asserting that the administrative judge ignored additional activity protected by
section 2302(b)(9). PFR File, Tab 12 at 45. He describes this as including his:
Refusing to falsify his travel record to support the 2-day trip to
Virginia Beach;
Refusing to work around the noxious fumes caused by the
installation of foam tiles;
Participating in an NCIS investigation; and
Participating in his EEO claim.
Id. As further detailed below, we are not persuaded.
Section 2302(b)(9)(D) protects an individual such as the appellant from
reprisal for their “refusing to obey an order that would require the individual to
violate a law, rule, or regulation.” 5 U.S.C. § 2302(b)(9)(D). Citing that
provision, the appellant asserts that he engaged in protected activity by refusing
to falsify his travel record and by refusing to work around noxious fumes. PFR
File, Tab 12 at 45. Yet, regarding his purported refusal to falsify a travel record,
the appellant does not refer us to any supportive evidence. Id. (referencing ID
at 7). Instead, the appellant has merely alluded to the administrative judge’s
discussion of how the appellant’s testimony and written statements about the
 13

circumstances surrounding the Virginia Beach trip were inconsistent and not
credible. ID at 7-9. Without more, we will not pour over the voluminous record
in search of preponderant evidence that the appellant received and refused to obey
an order to falsify his travel record. See 5 C.F.R. § 1201.114(b) (providing that a
petition for review should include all of a party’s factual and legal arguments,
and it must be supported by specific references to the record). This is particularly
so because the administrative judge did not find the appellant’s version of events
surrounding this incident credible, and those findings are entitled to deference.
See Purifoy v. Department of Veterans Affairs , 838 F.3d 1367, 1372-73 (Fed. Cir.
2016) (concluding that the Board must defer to an administrative judge’s
credibility determinations even when she relies on demeanor “by necessary
implication”); Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.
2002) (explaining that the Board must defer to an administrative judge’s
credibility determinations when, as here, 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 sound” reasons for
doing so).
Similarly, the appellant’s assertion that he refused to work around noxious
fumes caused by the installation of foam tiles is unavailing. He has merely
referred to us a statement of facts from his attorney, which does not constitute
preponderant evidence. PFR File, Tab 12 at 45 (referencing IAF, Tab 16
at 10-11); see Hendricks v. Department of the Navy, 69 M.S.P.R. 163, 168 (1995)
(finding that statements of a party’s representative in a pleading do not constitute
evidence). Moreover, although the appellant has repeatedly described his
concerns about the noxious fumes, we found no reason to find that the appellant
“refus[ed] to obey an order that would require [he] violate a law, rule, or
regulation” in connection with the fumes. 5 U.S.C. § 2302(b)(9)(D). We also
note that this allegation goes hand in hand with Disclosure 5, which the
administrative judge found protected. The appellant has not explained, and we
 14

discern no reason, why protection under sections 2302(b)(8) and 2302(b)(9)(D)
for the same basic set of facts would warrant a different result than protection
under only the former provision. See 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 reversal of an
initial decision).
Regarding the appellant’s assertion that “[h]is participation in the NCIS
investigation is protected by 5 U.S.C. § 2302(b)(9)(C),” PFR File, Tab 12 at 45,
the appellant has provided no argument and no reference to the record.
Accordingly, the bare assertion is unavailing. To the extent the appellant is
referring to the contact he had with NCIS about Disclosure 1, as discussed in the
initial decision, e.g., ID at 30-31, the administrative judge found this set of
disclosures protected by section 2302(b)(8) and it is not apparent how protection
under section 2302(b)(9)(C), if warranted, would require any different result in
this appeal.
Regarding the appellant’s assertion that “his participation in his EEO case
is protected by 5 U.S.C. § 2302(b)(9)(A)(i) because it alleged retaliation,” PFR
File, Tab 12 at 45, again the appellant provides no further argument and no
reference to the record. He has not, for example, identified the EEO complaint to
which he may be referring, nor has he provided us with any showing that it
sought to remedy an alleged violation of section 2302(b)(8), as required under the
provision he cited. As we previously noted, the administrative judge
characterized one EEO complaint by the appellant as a “protected disclosure,”
when it is more accurately described as protected activity under
section 2302(b)(9)(A)(i). Supra note 7. If this is the EEO complaint to which the
appellant is alluding, the administrative judge did not ignore the matter. She
found it protected. Accordingly, we will not address the appellant’s assertion any
further.
 15

The appellant established the contributing factor criterion for Disclosure 5, but no
other protected disclosure or activity.
The administrative judge found that although the appellant proved that
Disclosure 1, Disclosure 2, and Activity 3 were protected, he did not prove that
they were a contributing factor in his removal. 8 ID at 35-37. For Disclosure 5,
the administrative judge did not explicitly state that the appellant proved the
contributing factor element, but she seemed to imply as much. ID at 37-38; see
Scoggins v. Department of the Army, 123 M.S.P.R. 592, ¶ 28 (2016) (recognizing
that it is inappropriate for an administrative judge to determine whether an
agency can meet its burden in a whistleblower reprisal claim unless the appellant
has first met his burden of establishing a prima facie case). As further detailed
below, we modify the initial decision to explicitly find that the appellant proved
the contributing factor criterion for Disclosure 5, but no other protected
disclosure or activity.

Contributing factor – Disclosure 5
One way to establish the contributing factor criterion is the
knowledge/timing test, under which an employee may establish that his protected
disclosure or activity was a contributing factor in the contested personnel action
through circumstantial evidence, such as evidence that the official taking the
personnel action knew of the disclosure or activity, and that the personnel action
occurred within a period of time such that a reasonable person could conclude
that the disclosure or activity was a contributing factor in the personnel action.
Salerno, 123 M.S.P.R. 230, ¶ 13. If an appellant fails to satisfy the
knowledge/timing test, the Board must consider other evidence, such as that
8
We recall that Disclosure 1 concerned the alleged mismanagement of funds for
improvised nuclear device (IND) countermeasures, while Activity 3 was an EEO
complaint that alleged reprisal for Disclosure 1. Supra p. 7. The administrative judge
did not distinguish between the two when analyzing the contributing factor element of
the appellant’s burden; she instead referred only to “disclosures regarding the IND
countermeasures funding.” ID at 36. It seems apparent, though, that her analysis and
conclusion applied to both, consistent with her prior description of both as “protected
disclosures.” ID at 33-34, 36; supra p. 7.
 16

pertaining to the strength or weakness of the agency’s reasons for taking the
personnel action, whether the whistleblowing was personally directed at the
proposing or deciding official, and whether those individuals had a desire or
motive to retaliate against the appellant. Rumsey v. Department of Justice,
120 M.S.P.R. 259, ¶ 26 (2013).
Although the administrative judge did not explicitly find that the appellant
proved the contributing factor criterion for Disclosure 5, we do. This set of
disclosures consisted of the appellant voicing concerns about toxic fumes that
were being generated during the installation of some foam panels in an area near
his workspace, causing him headaches and possibly endangering others as well.
E.g., IAF, Tab 5 at 60-61. The administrative judge provided an extensive
discussion of the surrounding circumstances, including both the appellant’s
disclosures and his surrounding conduct, some of which the agency relied on for
its removal action. E.g., ID at 9-16. Among other things, she correctly noted that
the appellant made the disclosure and then relayed it to multiple people, including
his first-line supervisor and the proposing official, all within months of his
proposed removal. IAF, Tab 4 at 31, Tab 5 at 61. Accordingly, we find that the
knowledge/timing test is satisfied for Disclosure 5, thereby proving that it was a
contributing factor in the appellant’s removal.

Contributing factor – Disclosure 1, Disclosure 2, & Activity 3
The administrative judge found that the appellant did not prove the
contributing factor criterion for Disclosure 1, Disclosure 2, or Activity 3. ID
at 36-37. In doing so, she noted that each occurred 5 or more years prior to his
removal, and she found that the appellant failed to establish any connection
between them and the individuals involved in his removal. Id.
On review, the appellant presents several arguments about his burden of
proving contributing factor. PFR File, Tab 12 at 45-57. He first argues that the
administrative judge erred by assessing contributing factor for each of his
protected disclosures or activities, individually, rather than doing so collectively.
 17

Id. at 46-47. However, the appellant has not identified any persuasive support for
analyzing his claim in that way. He has instead referred us to a single Circuit
Court decision, which concluded that several discrete acts should be considered
together for purposes of deciding whether an individual had engaged in the kind
of activity covered under the opposition clause of Title VII. Id.; Demasters v.
Carilion Clinic, 796 F.3d 409, 416-17 (4th Cir. 2015). That conclusion is
unrelated to the WPEA and its contributing factor requirement. Under the burden
shifting scheme of a WPEA, the Board analyzes the contributing factor element
for each protected disclosure or activity, individually. See, e.g., Shannon v.
Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 32 (2014) (remanding an
appeal with instructions that, for each disclosure the administrative judge finds
protected, she must then determine whether the disclosure was a contributing
factor in the contested personnel action).
The appellant next references portions of the proposal and the decision
letters for his removal, along with hearing testimony, which described him as
having a history of outbursts or interpersonal conflicts dating back many years
prior to the charged misconduct underlying the removal action. PFR File, Tab 12
at 46-51. To the best that we understand, the appellant is arguing that we should
construe those references as including his protected disclosures or activities,
thereby satisfying the contributing factor element of his burden. Id. However,
we are not persuaded. Although the appellant pointed us to general references
that he had a history of behavior that the agency found objectionable during the
time that preceded the charged misconduct, he has not pointed us to any instance
of that encompassing any of his protected disclosures or activities, and we will
not make assumptions about the same.
Relatedly, the appellant recounts how the agency described the misconduct
cited in its charge as disruptive and causing others to feel unsafe around him.
PFR File, Tab 12 at 51-55. He then suggests that this proves the contributing
factor element or his reprisal claim, generally, because whistleblowing is
 18

inherently disruptive. Id. Again, we are not persuaded. Despite the appellant’s
suggestion to the contrary, we find no reason to conclude that the agency’s stated
opposition to the disruption and fear caused by the appellant’s conduct—which
culminated with his angrily punching equipment and then getting within inches of
his supervisor’s face while yelling—meaningfully adds to his burden of proving
the contributing factor criterion or his reprisal claim. See generally Hamilton v.
Department of Veterans Affairs, 115 M.S.P.R. 673, ¶ 12 (2011) (recognizing that
a disclosure is still entitled to protection if stated bluntly, but this is not a general
license for bad behavior—the character and nature of the disclosure can still be a
legitimate basis for discipline).
The appellant’s remaining arguments concerning the contributing factor
element are similarly unavailing. PFR File, Tab 12 at 54-57. For example, the
appellant further suggests that we should find the knowledge/timing test satisfied
for purposes of Disclosure 1, Disclosure 2, & Activity 3, all of which occurred
many years before his removal, simply because the knowledge/timing test is
satisfied for Disclosure 5. Id. at 54-55. He also characterizes his employment
history as including a pattern of antagonism spanning his years of protected
disclosures and activity, and he contends that the agency deviated from normal
practices with respect to his removal. Id. at 55-56. Although we have considered
each of the appellant’s contributing factor arguments, we do not find them
persuasive. The appellant established a prima facie case of reprisal with respect
to Disclosure 5, but he failed to do so for any other disclosure or activity.

The agency proved that it would have removed the appellant in the absence of
Disclosure 5.
After finding that the appellant presented a prima facie case of
whistleblower reprisal concerning Disclosure 5, the administrative judge shifted
the burden and found that the agency proved that it would have taken the same
removal action against the appellant in the absence of his protected disclosure.
 19

ID at 38-40. On review, the appellant challenges this finding. PFR File, Tab 12
at 57-68.
In determining whether the agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of a
protected disclosure, the Board generally will consider the following factors:
(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’s officials who
were involved in the decision; and (3) any evidence that the agency takes similar
actions against employees who did not engage in whistleblowing but who are
otherwise similarly situated. See Carr v. Social Security Administration,
185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board must consider all pertinent
record evidence in making this determination. Whitmore v. Department of Labor,
680 F.3d 1353, 1368 (Fed. Cir. 2012). The Board does not view these factors as
discrete elements, each of which the agency must prove by clear and convincing
evidence. Phillips v. Department of Transportation, 113 M.S.P.R. 73, ¶ 11
(2010). Rather, the Board will weigh the factors together to determine if the
evidence is clear and convincing as a whole. Id.
Although the administrative judge acknowledged the applicable standard,
she provided only a brief analysis that does not explicitly address any of the Carr
factors. ID at 38-40. Accordingly, we modify the initial decision by
supplementing the analysis as follows.
The agency’s evidence in support of its removal action, which was based
on incidents in January, June, and October 2019, is strong. While sustaining the
agency’s charge, the administrative judge described the various documentary and
testimonial evidence pertaining to each incident. ID at 4-9 (October 24 incident),
9-16 (June 4 incident), 16-20 (January 2 incident and accompanying reports).
Among other things, this included contemporaneous documentation about each,
reflecting a pattern of increasingly discourteous, aggressive, and even violent
behavior by the appellant. IAF, Tab 4 at 46-47, Tab 5 at 12-18, 58-59, 63-64.
 20

We recognize that only one of the three individuals targeted by the
appellant’s conduct during these incidents testified at the hearing, but each
lodged a complaint about the appellant and cooperated in the agency’s
investigations of the matters at the time. See Phillips, 113 M.S.P.R. 73, ¶ 12
(explaining that, when applying the first Carr factor, the Board will consider the
weight of the evidence that was before the agency when it acted). Plus, the
appellant’s responses to these incidents largely deflected blame rather than
substantively or persuasively denying that he had engaged in the alleged
misconduct. IAF, Tab 5 at 25-38, 60-62. To the extent that the appellant did
dispute the alleged misconduct, the administrative judge made well-reasoned
credibility findings in favor of the agency’s version of events, rather than the
appellant’s, which we adopt. ID at 4-20.
Conversely, the evidence suggests that the motive to retaliate was not
particularly strong. Disclosure 5 consisted of the appellant expressing safety
concerns about the 2- or 3-day installation of foam panels near his workspace, as
it related to remedial measures for ventilating the fumes caused by an adhesive.
E.g., IAF, Tab 5 at 12-18, 60-62. This set of disclosures was primarily directed at
a coworker overseeing the project, under a different chain of command, who had
accommodated remedial measures for the fumes that the appellant deemed
inadequate. Id. at 60-62. Nonetheless, this set of disclosures implicated
management as well, including the proposing and deciding officials, who the
appellant described as ignoring his complaints. Id. at 61. However, by the
appellant’s own telling, it seems as if everyone implicated by Disclosure 5 either
disagreed with appellant and thought the remedial measures implemented for the
fumes were sufficient, or they had minimal interest in the matter. Id. at 60-61.
The evidence of record does not suggest that they were concerned or had reason
to be concerned that Disclosure 5 cast them in an especially unfavorable light. In
other words, the record supports a conclusion that Disclosure 5 might cause some
 21

motive to retaliate, but not so much so that it causes us to doubt that the agency’s
removal action.
As for evidence that the agency takes similar actions against employees
who did not engage in whistleblowing but who are otherwise similarly situated,
there appears to be none. When testifying about the choice of penalty, the
deciding official testified that she was not aware of anyone similarly situated.
HT3 at 31 (testimony of deciding official). Accordingly, this factor is not a
significant one. Campbell v. Department of the Army, 123 M.S.P.R. 674, ¶ 20
(2016).
As supplemented by this analysis to further consider and weigh these
factors, we agree with the administrative judge’s conclusion that the agency met
its burden. It proved by clear and convincing evidence that it would have taken
the same removal action in the absence of the appellant’s protected disclosure,
given the strength of its evidence showing a pattern of increasingly unacceptable
behavior and limited motive to retaliate.
We have considered each of the appellant’s numerous arguments to the
contrary, but we are not persuaded by any. For example, the appellant faults the
agency for not calling some witnesses, including the targets of his discourteous
behavior for the January and June incidents, during his Board appeal. PFR File,
Tab 12 at 57-58. But this erroneously conflates the strength of the agency’s
evidence in support of its removal action, at the time, with the evidence it put on
to prove its charge before the Board. Phillips, 113 M.S.P.R. 73, ¶ 12. As we
have discussed, the witnesses to which the appellant is referring filed complaints
about the appellant’s behavior, characterizing it as harassment, bullying, and
cause for concern that the appellant would turn violent. E.g., IAF, Tab 5
at 12-18, 63-64.
The appellant also notes that the target of his discourteous behavior in June
was similarly found to be discourteous but received no punishment at all. PFR
File, Tab 12 at 58; see IAF, Tab 5 at 58-59. However, the appellant was not
 22

removed because of that single incident or any single lapse in judgment—he was
removed based on a pattern of behavior that culminated in his violent punching of
equipment and aggressively getting in the face of his supervisor. E.g., IAF, Tab 4
at 32-34, Tab 5 at 47, 52; HT3 at 14-16 (testimony of deciding official). The
appellant’s other arguments about the agency’s burden are similarly mistaken, as
they relate to other arguments we already dismissed or they are otherwise
unavailing.

The appellant failed to prove his claim of disability discrimination.
The appellant characterized his disability discrimination affirmative
defense, which the administrative judge found unavailing, as a failure to
accommodate claim below. PFR File, Tab 12 at 68-70; ID at 21-24. However,
his petition for review states that the only accommodation he needed was to not
be fired. Compare PFR File, Tab 12 at 68-70, with IAF, Tab 16 at 13.
It seems that the appellant’s current theory of this affirmative defense is
that he was subjected to disparate treatment because the agency’s removal action
was based on his posttraumatic stress disorder (PTSD). PFR File, Tab 12
at 68-70. 9 It is worth noting that the appellant’s final outburst, where he punched
equipment and got in the face of his supervisor, occurred on October 24, 2019.
E.g., IAF, Tab 4 at 46. Days later, on October 31, 2019, the appellant met with a
third party to discuss this and other issues. IAF, Tab 5 at 25, 35; HT2 at 208-15

9
The appellant separately seems to assert that the agency erred by refusing to consider
whether PTSD affected his behavior. PFR File, Tab 12 at 68-69. He quotes the
deciding official, who testified that “PTSD or no PTSD or any other kind of condition,
[the appellant’s] behavior was unacceptable.” Id. at 69 (referencing HT3 at 66
(testimony of deciding official)). To the extent that the appellant is suggesting that a
diagnosis of PTSD could excuse his misconduct, he is mistaken. See, e.g., Burton v.
U.S. Postal Service, 112 M.S.P.R. 115, ¶ 16 (2009) (explaining that the Americans with
Disabilities Act does not immunize disabled employees from discipline for misconduct,
provided the agency would impose the same discipline on an employee without a
disability); Fitzgerald v. Department of Defense, 85 M.S.P.R. 463, ¶ 4 (2000)
(recognizing that an agency is never required to excuse a disabled employee’s violation
of a uniformly-applied, job-related rule of conduct, even if the employee’s disability
caused the misconduct).
 23

(testimony of appellant). Immediately thereafter, he had a breakdown, crying,
hyperventilating, and voluntarily leaving work by ambulance to seek mental
health treatment. IAF, Tab 5 at 25, 35; HT2 at 208-15 (testimony of appellant).
In a letter dated the next day, November 1, 2019, the proposing official
placed the appellant on administrative leave. IAF, Tab 5 at 8-9. Then, on
November 4, 2019, the Commanding Officer for Naval Support Activity South
Potomac barred the appellant from the facility on which he normally worked,
citing an otherwise unexplained “pending investigation.” Id. at 10. He renewed
that prohibition 20 days later, citing the appellant’s “threatening actions, anger
management issues, self-admitted [PTSD], and severe anxiety.” Id. at 11.
The proposing official then issued its proposal to remove the appellant a
couple of months later, in February 2020. IAF, Tab 4 at 31. While discussing the
events of October 24, 2019, the proposal recognized the events that followed,
including the appellant’s emotional breakdown, without mentioning any health
condition. Id. at 32-33. But the appellant explicitly discussed PTSD in his
response to the proposed removal, indicating that he had just begun counseling
for the same. IAF, Tab 5 at 36.
As best as we understand his arguments on review, the appellant is
asserting that if it were not for his emotional breakdown and associated disclosure
of his PTSD, the Commanding Officer for Naval Support Activity South Potomac
would not have barred him from the base and the proposing and deciding officials
would not have moved forward with his removal. 10 PFR File, Tab 12 at 68-70.
The administrative judge concluded the record did not show that his
removal was based on any disability, or that he was medically unable to perform
in his position. ID at 22-23. She further concluded that the appellant failed to
10
Below, the administrative judge considered the appellant’s PTSD, but also his
reported hypertension and hearing loss with tinnitus. ID at 22-23. However, the
appellant’s petition exclusively relies on his PTSD. PFR File, Tab 12 at 68-70. He
seems to have abandoned any argument about hypertension or hearing loss having any
relation to his removal or disability discrimination claim. Id. Accordingly, our analysis
is similarly focused on PTSD.
 24

prove that he was actually disabled or regarded as disabled. ID at 23-24.
Specific to PTSD, the administrative judge indicated that the appellant presented
a Department of Veterans Affairs decision, from 2007, giving him a 10%
service-connected disability rating for “PTSD with insomnia,” but no treatment
records or other documentation. Id. at 22, 24; IAF, Tab 26 at 10-12.
As further detailed below, we vacate the administrative judge’s finding that
the appellant did not have a disability. We instead find that, even if the appellant
had a disability, as that term is defined by the statute, the appellant failed to meet
his burden of proving that a disability was a motivating factor in his removal.
To prove his disability discrimination claim, the appellant must first
establish that he is an individual with a disability as that term is defined in the
Americans with Disabilities Act Amendments Act of 2008 (ADAAA) and Equal
Employment Opportunity Commission regulations. Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶ 37. He may prove that he has a
disability by showing that he: (1) has a physical or mental impairment that
substantially limits one or more major life activities; (2) has a record of such
impairment; or (3) is regarded as having such an impairment. Id. (citing
42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g)(1)). The determination of whether a
condition is substantially limiting is made by comparing the ability of the
allegedly disabled individual to “most people in the general population.” Id.
(citing 29 C.F.R. § 1630.2(j)(1)(ii)). The “substantially limits” standard is not
“demanding,” and is intended to “be construed broadly in favor of expansive
coverage.” Id. (citing 29 C.F.R. § 1630.2(j)(1)(i)).
Again, for the asserted PTSD, the record includes the 2007 service-
connected disability decision from the Department of Veterans Affairs, which
indicates that the appellant had once received 4 months of pharmacological
treatment, but none other. IAF, Tab 26 at 12. Then, in his response to the
proposed removal in 2020, the appellant indicated that he had just started his
first-ever counseling for PTSD. IAF, Tab 5 at 36.
 25

The appellant provided further explanation of his PTSD at the hearing.
E.g., HT2 at 103 (testimony of appellant). Among other things, he described this
condition as associated with the trauma of his past work investigating mass
casualty events caused by improvised explosive devices. Id. at 103-06. The
appellant characterized his PTSD as including sleeplessness, flashbacks, and
short-temperedness. Id. at 106-08.
We recognize that the administrative judge found the appellant’s testimony
not credible in many regards, including his claims about a hearing impairment.
E.g., ID at 6, 8-9, 16, 22-23. However, she did not make explicit credibility
findings concerning the appellant’s testimony about PTSD. Accordingly, the
record seems to include limited but uncontradicted evidence of the appellant
having PTSD, along with a few instances of the agency and the appellant
referencing this PTSD in the period surrounding his removal.
Assuming that this suffices for purposes of establishing the appellant had a
disability, as that term is defined, his burden does not end there. For a disability
discrimination claim based on disparate treatment, the Board applies the same
analytical framework as discrimination claims arising under Title VII. Pridgen,
2022 MSPB 31, ¶¶ 40, 42. The Board will first inquire whether the appellant has
shown by preponderant evidence that the prohibited consideration was a
motivating factor in the contested personnel action. Id., ¶¶ 20-21, 42. Such a
showing is sufficient to establish that the agency violated the anti-discrimination
law. Id. If the appellant meets this burden, we will then determine whether the
agency still would have taken the contested action in the absence of the
discriminatory motive. Id., ¶¶ 22, 42.
As mentioned above, the agency’s second decision to prohibit the appellant
from entering the facility in which he worked explicitly indicated that it was
based on his “threatening actions, anger management issues, self-admitted
[PTSD], and severe anxiety.” IAF, Tab 5 at 11. However, the administrative
judge found that there was no evidence of the proposing official, deciding
 26

official, or anyone else at the Indian Head facility in which the appellant worked
having any involvement in this decision by the Commanding Officer, Naval
Support Activity South Potomac, who oversaw multiple facilities. ID at 24.
Moreover, the question at hand is whether the appellant’s removal was based on
his disability, not his debarment. Supra p. 25. With that in mind, we find the
debarment letter notable, but not dispositive.
We further find it more likely than not that the agency’s removal action
was exclusively motivated by the appellant’s behavior. To the extent that agency
officials acknowledged the appellant’s PTSD in concert with his removal, they
did so while recognizing that the appellant had raised the matter and while
considering whether it was a mitigating circumstance. IAF, Tab 4 at 39, Tab 5
at 52-53. Conversely, the proposal and decision letters are filled with indications
that the appellant’s behavior over the prior decade had consisted of a pattern that
included misconduct, intervention by management, a period of improvement, then
more misconduct. E.g., IAF, Tab 4 at 31-36. Among other things, the agency
contended that this included increasingly worrisome intimidation of coworkers
and supervisors alike, racial slurs, demeaning comments, yelling, anger, rage, and
other indicators of potential violence. Id.
This is not simply announced in the proposal and decision letters. The
claims are bolstered by other evidence covering many years. For example, the
individual who supervised the appellant between 2015 and early 2019 testified
that his troubles with the appellant began on the very first day of their supervisor/
subordinate relationship, when the appellant caused another employee to cry.
HT3 at 92-93 (testimony of prior supervisor). He further testified that the
appellant had “at least four” other altercations with which he had to deal. Id.
at 93. The record also includes a memorandum from this prior supervisor, dated
February 2019, indicating that he had been approached by two agency employees,
one of whom was another manager, fearful that the appellant had been displaying
characteristics of an active shooter. Id. at 94-95; IAF, Tab 5 at 65. At the
 27

hearing, this prior supervisor responded in the affirmative when asked if he was
concerned that the appellant might intentionally try to hurt his coworkers. HT3
at 111 (testimony of prior supervisor).
The appellant’s subsequent supervisor—the one involved in the October
2019 incident—provided similar testimony about his relatively brief time
managing the appellant. E.g., HT3 at 119-20 (testimony of supervisor). He
described the appellant as erratic and difficult. Id. at 121. Specific to the
October 2019 incident, he indicated that the appellant acted in a way he had never
seen in his 20-year tenure as a supervisor. Id. at 122-23. The supervisor further
characterized the appellant as causing him fear for his physical safety and
consistent with his training about actions associated with active shooters. Id.
Similarly, the individual targeted by the appellant’s ire during the June 2019
incident described the appellant as exhibiting rage that caused him concern for
potential workplace violence. IAF, Tab 5 at 12.
To the extent that the appellant’s immediate supervisors were questioned
about the appellant having PTSD, neither provided any indication that they knew
of this disability prior to him raising the matter in connection with his final act of
misconduct and the resulting removal action. E.g., HT3 at 98 (testimony of prior
supervisor), 123-24, 126 (testimony of supervisor). The deciding official testified
that the appellant’s disability played no role in her decision, and she only learned
of his PTSD after he was placed on administrative leave. 11 E.g., id. at 19, 22-23
(testimony of deciding official). Her testimony is consistent with the agency
finding the October 2019 incident between the appellant and his supervisor to be
the most worrisome and the final straw, requiring his removal. E.g., id. at 14-18.
Turning back to the debarment letter, the Security Director overseeing the
facility in which the appellant worked testified as well. HT3 at 140 (testimony of
Security Director). Among other things, he indicated that the appellant’s
management chain approached him in late October 2019, to describe the incident
11
The proposing official did not testify. ID at 37.
 28

involving the appellant and his direct supervisor that had just occurred. Id.
at 140. The Security Director described elevating this issue to Naval Support
Activity South Potomac—the entity responsible for the appellant’s debarment
from the facility—who then investigated by, inter alia, interviewing the
appellant. Id. at 141-42. The Security Director attributed the appellant’s initial
debarment to the October 2019 altercation with his supervisor. Id. at 148-49.
When asked about the extension of this debarment, and its reference to PTSD, the
Security Director indicated that this was not part of the input he provided to
Naval Support Activity South Potomac. Id. at 141-43. He therefore implied that
the “self-admitted [PTSD], and severe anxiety” referenced in the Naval Support
Activity South Potomac second debarment letter was something that outside
entity had discovered and relied upon independently.
Based on this and other evidence, we do not find that the appellant has
proven that the agency’s removal action was improperly motivated by a
disability. Although the appellant may have informed agency officials that he has
PTSD in the period between his October 2019 altercation and the February 2020
proposal to remove him from service, there is not preponderant evidence that the
appellant’s purported PTSD motivated his removal. Instead, we find it more
likely than not that the proposal and decision to remove the appellant were based
solely on his increasingly unacceptable behavior, which had just culminated in his
most unacceptable outburst to date.

The agency’s choice of penalty was reasonable.
The appellant presents a brief argument about the agency’s chosen penalty.
PFR File, Tab 12 at 70-71. Where all of an agency’s charges are sustained, as
they are here, the Board will review the agency-imposed penalty only to
determine if the agency considered all the relevant factors and exercised
management discretion within the tolerable limits of reasonableness. Powell v.
U.S. Postal Service, 122 M.S.P.R. 60, ¶ 12 (2014). In making this determination,
the Board must give due weight to the agency’s primary discretion in maintaining
 29

employee discipline and efficiency, recognizing that the Board’s function is not
to displace management’s responsibility, but to ensure that managerial judgment
has been properly exercised. Id. The Board will modify or mitigate an
agency-imposed penalty only where it finds the agency failed to weigh the
relevant factors or the penalty clearly exceeds the bounds of reasonableness. Id.
The administrative judge recognized this standard and found that the
agency met its burden of proving that removal was a reasonable penalty. ID
at 46-48. On review, the appellant briefly disagrees. PFR File, Tab 12 at 70-71.
He seems to suggest that although the deciding official considered the appellant’s
asserted PTSD and did not find it mitigating due to the lack of supportive
evidence, the record includes uncontested testimony about his PTSD, so we
should find it mitigating. Id. The appellant further asserts that the incidents
relied upon for removing him did not warrant that penalty, given his lengthy
military and civilian service with successful performance. Id.
We have considered these arguments but do not find them persuasive. The
appellant has not shown that the agency failed to consider the relevant factors or
that removal clearly exceeds the bounds of reasonableness. To the contrary, we
find that the mitigating circumstances the appellant asserted do not outweigh
other considerations, such as the nature and seriousness of his misconduct, the
repetitiveness of his inability to get along with others, his limited rehabilitation
potential, and his lack of remorse. E.g., IAF, Tab 5 at 46-53.

The administrative judge did not abuse her discretion by disallowing certain
witnesses.
The appellant’s final argument on review concerns the administrative
judge’s rulings as to requested witnesses. PFR File, Tab 12 at 71. As detailed in
a prehearing conference summary, the appellant requested 18 witnesses. IAF,
Tab 21 at 10. The administrative judge decided that three would not be allowed,
over the appellant’s disagreement and objection. Id.; IAF, Tab 22 at 9-10.
 30

On review, the appellant reasserts his objection to the administrative
judge’s ruling as to these three requested witnesses. PFR File, Tab 12 at 71. He
presents a cursory explanation for two, but none for the other. Id. We have
reviewed this argument, as well as the appellant’s original explanations of their
expected testimony and his subsequent objection to their disallowance raised
below. IAF, Tab 16 at 31-33, Tab 22 at 9-11. After doing so, we are not
persuaded.
Administrative judges have broad discretion to regulate the proceedings
before them, including the discretion to exclude witnesses. Oulianova v. Pension
Benefits Guarantee Corporation, 120 M.S.P.R. 22, ¶ 12 (2013). We discern no
basis for concluding that the administrative judge’s disallowance of the three
witnesses identified was an abuse of that broad discretion.
To conclude, the appellant’s petition for review reasserts his claims of
harmful error, whistleblower retaliation, and disability discrimination, while also
presenting arguments about the reasonableness of the penalty and the
administrative judge’s disallowance of witnesses. 12 PFR File, Tab 12 at 42-71.
Although we have modified the initial decision in some ways, we find that the
appellant’s petition presents no basis for us to reach a different result, and we
affirm the administrative judge’s initial decision.
12
The appellant did not reassert his EEO reprisal claim on review. We note, though,
that the administrative judge’s analysis referred to both the “motivating factor” standard
we previously discussed and a “genuine nexus” requirement. ID at 24-27; supra p. 25.
During the period that followed the initial decision in this appeal, the Board clarified
the proper standard for claims of EEO reprisal, noting that the standard differs
depending on whether the claim arises under Title VII or the ADA. The motivating
factor standard applies to claims of reprisal for engaging in activity protected under
Title VII, while an appellant must prove the more stringent “but-for” causation in the
context of retaliation claims arising under the ADA. Haas v. Department of Homeland
Security, 2022 MSPB 36, ¶ 31.
To the extent that the administrative judge may have applied the wrong analytical
standard, we do not find the error harmful. She made well-reasoned findings of fact
that support a conclusion that the appellant’s prior EEO activity, all of which occurred
more than 5 years before his removal, was neither a motivating factor nor the but for
cause of his removal. ID at 25-27.
 31

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.
 32

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
 33

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
 34

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.
 35

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.