Robin Marcato v. USAID ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 2020 Decided August 24, 2021
No. 19-1041
ROBIN S. MARCATO,
PETITIONER
v.
UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT,
RESPONDENT
MERIT SYSTEMS PROTECTION BOARD,
INTERVENOR
On Petition for Review of an Order
of the Merit Systems Protection Board
Kathleen McClellan argued the cause for petitioner. With
her on the briefs was Jesselyn A. Radack.
Allison Kidd-Miller, Assistant Director, U.S. Department
of Justice, argued the cause for respondent. With her on the
brief were Jeffrey Bossert Clark, Acting Assistant Attorney
General, Robert E. Kirschman, Jr., Director, and Isaac B.
Rosenberg, Attorney.
Tristan L. Leavitt, General Counsel, Merit Systems
Protection Board, Katherine M. Smith, Deputy General
Counsel, and Stephen W. Fung, Attorney, were on the brief for
2
intervenor Merit Systems Protection Board in support of
respondent.
Before: GARLAND, * PILLARD, and KATSAS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge KATSAS.
KATSAS, Circuit Judge: A federal agency may defend an
adverse personnel action taken against a whistleblower by
showing that it would have taken the same action in the absence
of any protected disclosures. In this case, the Merit Systems
Protection Board found that the Office of the Inspector General
(OIG) of the United States Agency for International
Development (USAID) would have fired petitioner Robin
Marcato for workplace misconduct in the absence of her
protected disclosures. We conclude that substantial evidence
supports this finding.
I
The Civil Service Reform Act permits federal employees
to appeal certain adverse personnel actions, including removal
from office, to the MSPB. 5 U.S.C. §§ 7512(1), 7513(d). To
sustain a challenged action before the MSPB, the employing
agency must show that the charged employee conduct
occurred, id. § 7701(c)(1)(B); that the adverse action was
necessary to promote the efficiency of the service, id.
§ 7513(a); and that the penalty imposed was reasonable,
Douglas v. Veterans Admin., 5 M.S.P.R. 280, 299–300 (1981).
See, e.g., Bryant v. Nat’l Sci. Found., 105 F.3d 1414, 1416
*
Then-Judge Garland was a member of the panel when this case
was submitted but did not participate in its final disposition. Judge
Pillard and Judge Katsas have acted as a quorum for this opinion and
judgment. See 28 U.S.C. § 46(d).
3
(Fed. Cir. 1997). The MSPB may not sustain an adverse action
“based on any prohibited personnel practice described in
section 2302(b).” 5 U.S.C. § 7701(c)(2)(B). As relevant here,
section 2302(b) prohibits any adverse personnel action
“because of” an employee’s “disclosure of information” about
unlawful activity, gross agency mismanagement, or similar
conduct. Id. § 2302(b)(8)(A).
The Whistleblower Protection Act permits any federal
employee subjected to a personnel practice prohibited by
section 2302(b)(8) to “seek corrective action” from the MSPB.
5 U.S.C. § 1221(a). In such a case, the employee bears the
burden to show that her protected disclosures were a
“contributing factor in the personnel action.” Id. § 1221(e)(1).
The employee may discharge that burden through
“circumstantial evidence,” including evidence that an official
took the personnel action shortly after learning of the
disclosure. Id. If the employee carries this burden, the agency
can nonetheless prevail by showing “by clear and convincing
evidence that it would have taken the same personnel action in
the absence of such disclosure.” Id. § 1221(e)(2). Factors that
the Federal Circuit has identified as pertinent to this defense
include:
the strength of the agency’s evidence in support of its
personnel action; the existence and strength of any
motive to retaliate on the part of the agency officials
who were involved in the decision; and any evidence
that the agency takes similar actions against
employees who are not whistleblowers but who are
otherwise similarly situated.
Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999).
This burden-shifting framework governs appeals to the MSPB
under the Civil Service Reform Act, which can fairly be
4
described as a kind of “corrective action” for adverse personnel
actions undertaken in retaliation for whistleblowing.
Accordingly, on review of an MSPB decision under the CSRA,
we must determine whether the MSPB correctly applied the
Whistleblower Protection Act framework to factual findings
supported by substantial evidence.
A party aggrieved by an MSPB decision may petition a
court of appeals for review. 5 U.S.C. § 7703(a)(1). Until 2012,
the Federal Circuit had exclusive jurisdiction over such
petitions. See id. § 7703(b)(1)(A). Since then, the regional
circuits have had concurrent jurisdiction over petitions
challenging only the disposition of whistleblower-retaliation
claims. See id. § 7703(b)(1)(B). Because we were given
jurisdiction to review MSPB decisions only recently, we
consult Federal Circuit precedent for guidance, as other
regional circuits have done. See Acha v. USDA, 841 F.3d 878,
880 n.2 (10th Cir. 2016).
II
USAID administers the federal government’s foreign
development assistance program. Hanson v. USAID, 372 F.3d
286, 289 (4th Cir. 2004). The OIG is the Agency’s oversight
arm. Its components include an Office of Investigations, which
conducts criminal and other investigations of grant recipients
and others involved in the agency’s programs, and an Office of
Management, which provides support services to the OIG. In
2012, the OIG hired Marcato to the management office, where
she worked as a management analyst.
During her tenure at OIG, Marcato frequently alleged
misconduct by its high-ranking officials, including Acting
Inspector General Michael Carroll, Deputy Inspector General
Catherine Trujillo, Chief of Staff Justin Brown, and Deputy
Assistant Inspector General Lisa McClennon. Beginning in
5
2012, Marcato reported within the OIG that officials had
doctored various audits and reports sent to Congress. In 2013,
Marcato repeated those allegations to Senate staffers,
prompting a critical letter from Senator Coburn and
unfavorable media coverage in the Washington Post. In
October 2014, Carroll withdrew his nomination to be the
Senate-confirmed Inspector General, and he retired from the
OIG a few months later.
While routinely reporting the misdeeds of others, Marcato
engaged in concerning conduct herself. In December 2014, she
approached Rebecca Giacalone, an agent in the Office of
Investigations, about an ongoing criminal probe on which
Giacalone was working. The investigation concerned
International Relief and Development, Inc. (IRD), which was
Marcato’s former employer and one of USAID’s largest grant
recipients. Marcato identified potential witnesses, including
former IRD employee Dawn Greensides. After Marcato told
Giacalone that Greensides would feel uncomfortable
cooperating, Giacalone asked Marcato to vouch for her to
Greensides as a trustworthy investigator. Marcato proceeded
to send Greensides an e-mail that went well beyond the scope
of Giacalone’s request: Marcato identified the subject of the
investigation, the name of a suspect, and the name of a
cooperating witness, and she stated that the OIG was
considering a subpoena for IRD files. No OIG employee
reviewed the e-mail beforehand or learned of it until a year
later.
Marcato became increasingly preoccupied with the IRD
probe. She would seek to discuss it with Giacalone several
times daily. Giacalone became uncomfortable because
Marcato was not a trained investigator, and her visits were
distracting. Giacalone relayed her concerns to her supervisors
in the Office of Investigations, including McClennon.
6
McClennon passed on the concerns to Trujillo and Robert
Ross, who supervised Marcato in the Office of Management.
Trujillo and Ross then developed a protocol requiring Marcato
to go through Ross if she wanted to speak to Giacalone or enter
the Investigations workspace. In February 2015, Ross and
Trujillo met with Marcato to explain the protocol. Marcato
recorded the meeting on her cell phone, despite a USAID
security policy barring the unauthorized use, in restricted
workspace, of any device that can transmit audio or video.
The protocol failed to dampen Marcato’s efforts to
participate in the IRD investigation. Over the next month,
Marcato e-mailed Giacalone three times to flag possible leads
and to disparage the protocol as an “insulting waste of … time.”
J.A. 83. In March 2015, the Office of Investigations disabled
Marcato’s access to its suite, and Ross again instructed her to
follow the protocol. Yet Marcato violated the protocol at least
three more times in the next six months. On one occasion, she
initiated a conversation with an investigator by standing on
office furniture to speak over the top of a wall dividing the
respective workspace of the Management and Investigations
offices. On another occasion, she trailed someone into the
Investigations suite, then walked past staff who tried to prevent
her from entering.
In October 2015, Ross proposed to reprimand Marcato for
her repeated violations of the protocol. In response, Marcato
attached her e-mail to Greensides, which prompted concern
over its disclosure of sensitive information. Around this time,
Trujillo learned that Marcato had recorded their February 2015
meeting. According to Trujillo, newly confirmed Inspector
General Ann Calvaresi Barr decided to investigate Marcato’s
conduct, including her e-mail disclosure, cell phone recording,
and failure to follow the communications protocol. To avoid
any conflicts of interest, Calvaresi Barr arranged for the OIG
7
of the Department of Defense to conduct the investigation. In
the formal, written request for assistance, Trujillo noted the
“sensitivity” of the investigation given that Marcato “self-
identified as a whistleblower” and had recently made
disclosures to Congress of alleged misconduct by high-ranking
USAID officials. J.A. 62. Trujillo requested DoD’s help to
ensure that the allegations against Marcato were “appropriately
investigated.” Id.The ensuing investigation consumed over a year. In an
interview, Marcato informed DoD investigators that, at the
beginning of her February 2015 meeting with Ross and
Trujillo, she told them that she would be recording the meeting
with her cell phone, which she visibly placed on a table.
Marcato made similar statements to the USAID security office.
Ross and Trujillo both denied that Marcato told them she would
be recording the meeting.
The DoD OIG finished its probe in June 2017. Its report
substantiated four instances of misconduct. First, Marcato
improperly disclosed sensitive information about an ongoing
investigation to Greensides. Second, Marcato violated
USAID’s security policy by recording the meeting with Ross
and Trujillo on her cell phone. Third, Marcato made false
statements claiming that she told Ross and Trujillo that she
would be recording the meeting. Fourth, Marcato repeatedly
violated the communications protocol.
Debra Scott, Marcato’s direct supervisor at the time,
reviewed the report and proposed that Marcato be removed
based on these charges. Jason Carroll, 1 who had replaced Ross
as the Assistant Inspector General for the Management Office,
then removed Marcato. Scott outlined four charges matching
the instances of misconduct substantiated by the DoD OIG,
1
No relation to former Acting IG Michael Carroll.
8
specifically noting that the disclosure to Greensides “could
have jeopardized the integrity” of an ongoing criminal
investigation and that “knowing falsification in any official
investigation or inquiry strikes at the heart of the employee-
employer relationship and OIG’s core mission.” J.A. 22.
Carroll stated that his confidence in Marcato had been
“irreparably damaged.” Id. at 11.
Marcato appealed her removal to the MSPB. After a four-
day evidentiary hearing, an administrative judge sustained the
decision. He concluded that Marcato committed the charged
conduct, that her removal promoted the effective functioning
of the agency, and that the penalty of removal was reasonable.
The judge then turned to the question of whistleblower
retaliation. Based on circumstantial evidence, he found that
retaliation was a contributing factor in Scott’s decision to
propose removing Marcato and in Jason Carroll’s decision to
remove her. But the judge then found, by clear and convincing
evidence, that the OIG would have removed Marcato even in
the absence of any protected disclosures.
Marcato did not ask the full MSPB to review the judge’s
decision, which became the Board’s final decision by operation
of law. 5 C.F.R. § 1201.113. Because Marcato now contests
only the decision on her retaliation claim, we have jurisdiction
over her petition for review under 5 U.S.C. § 7703(b)(1)(B),
which applies to the disposition of whistleblower-retaliation
allegations raised either as stand-alone claims under the
Whistleblower Protection Act or as affirmative defenses under
the CSRA. See Baca v. Dep’t of the Army, 983 F.3d 1131, 1137
(10th Cir. 2020) (noting that § 7703(b)(1)(B) “does not
differentiate between whistleblower actions raised as direct
claims and those raised as affirmative defenses”).
9
III
Marcato disputes whether USAID proved by clear and
convincing evidence that it would have removed her had she
not made any protected disclosures. The clear-and-convincing
standard requires “reasonable certainty of truth.” United States
v. Montague, 40 F.3d 1251, 1255 (D.C. Cir. 1994) (cleaned up).
We review for substantial evidence the administrative judge’s
determination that USAID met its clear-and-convincing
burden. See 5 U.S.C. § 7703(c)(3); Greenspan v. Dep’t of
Veterans Affairs, 464 F.3d 1297, 1306 (Fed. Cir. 2006).
Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). In
reviewing the evidence, we will consider the factors set forth
in Carr, 185 F.3d at 1323, as did the administrative judge.
A
The first Carr factor is “the strength of the agency’s
evidence in support of its personnel action.” 185 F.3d at 1323.
The stronger the evidence, the more likely the agency would
have taken the personnel action. Here, the judge reasonably
determined that Marcato’s removal was supported by “strong
evidence” of significant workplace misconduct. J.A. 723.
First, Marcato sent a highly inappropriate e-mail to
Greensides, a potential witness in an ongoing criminal
investigation. On its face, the e-mail discloses sensitive
information about the investigation, including the subject of the
investigation, the name of a suspect, the name of a cooperating
witness, and information about a potential subpoena. OIG
officials testified that these disclosures could have
compromised the investigation. Marcato’s only response is
that Giacalone asked her to send an e-mail to Greensides. But
Giacalone asked Marcato only to vouch for her to Greensides
10
as a trustworthy investigator; Giacalone specifically denied
authorizing Marcato to disclose the details of the investigation.
The administrative judge plausibly found Giacalone’s
testimony to be credible, and we cannot set aside that “virtually
unreviewable” assessment. King v. HHS, 133 F.3d 1450, 1453
(Fed. Cir. 1998) (quoting Clark v. Dep’t of the Army, 997 F.2d
1466, 1473 (Fed. Cir. 1993)).
Second, Marcato violated a USAID security policy by
recording her February 2015 meeting with Trujillo and Ross on
a cell phone. The policy prohibits using “devices which
transmit audio or video” in restricted areas without the advance
permission of the Agency’s security office. J.A. 428. The
meeting was held in OIG workspace prominently marked as
restricted, and it was undisputed that Marcato did not receive
advance permission. Marcato objects that the USAID security
office, in a February 2016 warning letter to her, stated that it
could not determine whether she had violated the policy. But
that was because Marcato refused to tell the security office
“what type of device was used for these audio recordings.” Id.
at 81. Marcato later admitted to recording the meeting on her
cell phone, in testimony before the DoD investigators and the
administrative judge.
Third, the false-statements charge was amply supported.
While under oath, Marcato told DoD investigators that she had
announced to Trujillo and Ross that she would be recording the
February 2015 meeting with her cell phone, which she visibly
placed on a table. Marcato also made similar statements to the
USAID security office. But after Trujillo and Ross testified to
the contrary, Marcato claimed not to “remember the details of
the meeting.” J.A. 619. And when asked to reconcile that
position with her prior statements, she explained that she “said
what was true to [her] at the time.” Id. at 620. The
administrative judge found the testimony of Trujillo and Ross
11
to be more credible than Marcato’s, and we have no reason to
second-guess that assessment. See Pope v. USPS, 114 F.3d
1144, 1149 (Fed. Cir. 1997). Marcato objects that Trujillo was
biased and gave allegedly inconsistent testimony. But on the
issue of the recording, Trujillo’s testimony was internally
consistent and matched Ross’s testimony. Marcato further
contends that her false statements were not chargeable because
she did not intend to mislead the agency for private material
gain. Marcato forfeited that argument by not raising it until her
reply brief. Am. Wildlands v. Kempthorne, 530 F.3d 991, 1001
(D.C. Cir. 2008). The argument is also meritless; the
administrative judge could reasonably infer an intent to mislead
from the circumstances, and preventing the imposition of
discipline surely qualifies as a private gain.
Fourth, Marcato repeatedly violated the communications
protocol by initiating discussions with the Office of
Investigations. Marcato highlights Ross’s testimony before the
administrative judge that he disagreed with the protocol and did
not think that Marcato needed to follow it. But Ross never
suggested to Marcato that the protocol was optional. Rather,
in the February 2015 meeting, Ross and Trujillo instructed
Marcato to follow the protocol, and Ross’s notes document
several later reminders. J.A. 89 (Mar. 12) (“I instructed Robin
not to initiate any discussions with IG/I staff regarding their
work.”); id. at 88 (Aug. 25) (same); id. at 85 (Sept. 22) (“I am
directing you not to enter the Office of Investigations space
unless authorized by me.”). And as the judge explained, Ross’s
“disagreement” with the protocol did not justify Marcato’s
“refusal to follow” her supervisors’ instructions. Id. at 714.
B
The second Carr factor is “the existence and strength of
any motive to retaliate on the part of the agency officials who
12
were involved in the decision” under review. 185 F.3d at 1323.
Those involved in the decision include the decisionmaker and
“other agency officials who influenced the decision.”
Whitmore v. DOL, 680 F.3d 1353, 1371 (Fed. Cir. 2012)
(quoting McCarthy v. Int’l Boundary & Water Comm., 116
M.S.P.R. 594, 613 (2011)).
1
Marcato contends that the administrative judge improperly
required her to prove the second Carr factor. But the factors
are “merely appropriate and pertinent considerations” in
“determining whether the agency carries its burden of proving
by clear and convincing evidence that the same action would
have been taken absent the whistleblowing.” Whitmore, 680
F.3d at 1374. Here, the judge correctly stated the governing
rule that, if the employee proves that protected activity was a
“contributing factor” in the adverse personnel action at issue,
“the agency must prove by clear and convincing evidence that
it would have taken the same action even absent the disclosure
or other protected activity.” J.A. 719; see 5 U.S.C. § 1221(e).
Then, in applying the rule, the judge concluded that USAID
“has shown by clear and convincing evidence that it would
have taken the same personnel action in the absence of
whistleblowing or protected activity.” J.A. 722. The judge
summarized the motives and testimony of the DoD
investigators and the USAID officials involved in Marcato’s
removal in its analysis of the second Carr factor, and it
weighed that evidence against evidence bearing on the other
Carr factors—including what he characterized as “strong”
evidence of significant misconduct. Id. at 723. After doing so,
the judge restated his conclusion: “I find that the agency has
proven by clear and convincing evidence that it would have
removed the appellant even in the absence of her disclosures.”
13
Id. at 726. This analysis correctly applied the burden-shifting
framework of the Whistleblower Protection Act.
Marcato highlights the judge’s statement, in addressing the
second Carr factor, that she “failed to show retaliatory
motive.” J.A. 724. But the judge had already found that
Marcato’s protected activity was a “contributing factor” in the
termination decision, based on “circumstantial evidence” that
Debra Scott and Jason Carroll removed Marcato while they
knew about at least some of her disclosures. Id. at 720–22. In
analyzing the second Carr factor, the judge made clear that
there was no other evidence of retaliatory motive: Marcato’s
disclosures involved neither Scott nor Jason Carroll; Scott
testified about instances in which she had supported Marcato’s
whistleblowing activity; and Carroll credibly testified that he
made the decision to remove Marcato without any pressure
from his OIG superiors. Id. at 724–25. In context, we
understand the judge to have concluded that there was no
evidence of retaliatory motive beyond the circumstantial case
based on knowledge and timing, which made the evidence of
retaliation relatively weak compared to the strong evidence of
misconduct. See Kewley v. HHS, 153 F.3d 1357, 1364–65
(Fed. Cir. 1998) (“Once the agency presented its evidence in
support of its charges of independent causation for the removal,
[an employee must] rebut the agency’s evidence or risk a
finding that the agency had successfully established its
affirmative defense ….”). While the judge’s language on this
point was perhaps imprecise, we have no doubt that he held
USAID to its ultimate burden to prove by clear and convincing
14
evidence that it would have fired Marcato regardless of her
disclosures.
2
The administrative judge reasonably assessed evidence
about the motives of the officials involved in the decision to
fire Marcato. As the judge explained, Marcato had made no
allegations of wrongdoing against either the proposing official
(Scott) or the removing official (Jason Carroll). Nor were Scott
or Jason Carroll otherwise caught up in the congressional or
media scrutiny that followed her disclosures. Moreover, the
investigation leading to Marcato’s firing was done by an
outside agency—the DoD OIG—and nothing suggested that its
investigators “were influenced by retaliatory animus.” J.A.
724. On review, Marcato does not even suggest such animus
by Scott, Jason Carroll, or the DoD investigators.
Marcato instead focuses on other USAID officials with an
alleged motive to retaliate—Michael Carroll, Trujillo,
McClennon, and Brown—but she provides no evidence that
any of them influenced the removal decision. Michael Carroll
retired before Marcato engaged in much of the misconduct
investigated by DoD. Trujillo left the agency nine months
before the removal decision and testified that she did not
influence the DoD investigation or the USAID removal
decision. McClennon never supervised Marcato and attested
that she never discussed Marcato with Jason Carroll. Brown
had no connection to Marcato beyond forwarding the DoD
report to Scott and Jason Carroll, and he testified that he never
discussed the substance of it with them. Scott and Jason Carroll
corroborated the testimony of Trujillo, McClennon, and Brown
on all of these points.
Marcato primarily contends that USAID initiated the DoD
investigation because of her protected activity. That assertion
15
has several problems. First, Marcato’s own misconduct—
disclosing obviously sensitive information about an important,
ongoing criminal investigation to a prospective witness—
provided ample basis for the investigation. Second, according
to Trujillo, the investigation was ordered not by Trujillo, as
Marcato contends, but by Calvaresi Barr, whom Marcato does
not allege to harbor retaliatory motives. Third, the proposed
reprimand leading to the discovery of Marcato’s unauthorized
disclosures was issued by Ross, whom Marcato describes as
her ally within USAID. Marcato stresses that USAID
outsourced the investigation to DoD because of her
whistleblower status. But she fails to explain why enlisting the
help of an outside agency to investigate serious charges, rather
than conducting the investigation through in-house
investigators who might more readily be perceived to have an
interest in its outcome, should count against USAID here.
Alternatively, Marcato invokes what she describes as
Trujillo’s retaliatory decision to devise the protocol and impose
it on her over Ross’s objection. The governing statute prohibits
any “personnel action” taken “because of” protected
whistleblowing activity. 5 U.S.C. § 2302(b)(8). And the
governing proof scheme makes the agency liable if the
prohibited consideration was a “contributing factor” in the
challenged action, unless the agency shows that it “would
have” taken the same action anyway. Id. § 1221(e). The
Supreme Court construed a similar scheme prohibiting adverse
employment actions because of the employee’s military service
in Staub v. Proctor Hospital, 562 U.S. 411 (2011). Invoking
background principles of proximate cause and agency law, the
Court held that an employer is liable if one of its agents intends
to cause the adverse employment action, acts for the prohibited
reason, and is a proximate cause of the adverse action. See id.at 419–21. So, for example, an employer may be liable if one
of its employees, for prohibited reasons, successfully persuades
16
a neutral decisionmaker to terminate another employee. See id.at 413–16.
This case does not fit that model. Marcato’s alternative
theory posits that the retaliatory February 2015 protocol caused
Marcato’s ensuing violations of it, which caused Ross to issue
his proposed reprimand, which caused Marcato to reveal her
past misconduct disclosing sensitive information, which
caused the DoD OIG investigation, which caused her
September 2017 removal. But the protocol merely required
Marcato to obtain permission from her supervisor before
straying outside her lane in the management office; that kind of
modest restriction does not plausibly reflect an intent to
orchestrate an ultimate termination. Moreover, the protocol
was temporally and causally remote from the removal,
separated by Marcato’s intervening decisions (1) to provoke
repeated confrontations rather than asking Ross to approve her
continued contact with Giacalone and (2) to reveal evidence of
significant, previously unknown misconduct regarding her
unauthorized disclosure of sensitive information. Given the
length of this chain, and the unforeseeable twists and turns
within it, the imposition of the protocol cannot be considered a
proximate cause of the termination decision. See, e.g., Anza v.
Ideal Steel Supply Corp., 547 U.S. 451, 457 (2006) (proximate
cause demands “some direct relation between the injury
asserted and the injurious conduct alleged” (quoting Holmes v.
Sec. Invs. Prot. Corp., 503 U.S. 258, 268 (1992)).
For these reasons, the administrative judge permissibly
declined to put much weight on either the decision to impose
17
the communications protocol on Marcato or the decision to
investigate her through DoD.
C
The third Carr factor considers whether the agency has
taken “similar actions against employees who are not
whistleblowers but who are otherwise similarly situated.” 185
F.3d at 1323.
The administrative judge reasonably found this factor to
favor USAID. Its Table of Offenses and Penalties lists both
making a false statement and violating a security regulation as
removable offenses. Moreover, a human-resources official for
USAID OIG testified that several employees who had made
false statements were removed or resigned in lieu of removal,
and the official did not recall that any of them were
whistleblowers. Marcato presents examples of non-
whistleblowers who were not punished for misconduct, but
none of them was similarly situated to her.
IV
After reasonably weighing the Carr factors, the
administrative judge concluded that USAID met its burden to
show, by clear and convincing evidence, that it would have
fired Marcato regardless of her protected activity. Because
substantial evidence supports the judge’s decision, we deny the
petition for review.
So ordered.