NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
TONYA KNOWLES,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2019-1987
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-19-0047-W-1.
______________________
Decided: January 10, 2020
______________________
TONYA KNOWLES, Largo, FL, pro se.
KELLY A. KRYSTYNIAK, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by JOSEPH H.
HUNT, REGINALD THOMAS BLADES, JR., ROBERT EDWARD
KIRSCHMAN, JR.
______________________
Before DYK, TARANTO, and CHEN, Circuit Judges.
2 KNOWLES v. DVA
PER CURIAM.
Pro se appellant Tonya Knowles appeals from a deci-
sion of the Merit Systems Protection Board (Board) deny-
ing Ms. Knowles’s request for corrective action under the
Whistleblower Protection Act (WPA). We affirm.
BACKGROUND
Ms. Knowles is currently employed by the Bay Pines
Veterans Affairs Health Care System, a veterans’ hospital
operated by the Department of Veterans Affairs (agency)
in Bay Pines, Florida. From 2016 to 2018, Ms. Knowles
was subject to several personnel actions she believes were
in retaliation for her protected disclosure in violation of the
WPA. In 2017, Ms. Knowles filed a complaint with the Of-
fice of Special Counsel (OSC) alleging that Bay Pines em-
ployees were not properly storing patients’ medical records
and that she had been detailed, suspended, discriminated
against, experienced a hostile work environment and re-
ceived a proposed removal as reprisal for the allegation re-
garding the improper storage of medical records. Each
personnel action is discussed below.
On December 30, 2016, the agency proposed to suspend
Ms. Knowles from duty and pay for ten days based on three
charges: (1) failure to safeguard confidential information,
(2) negligence causing waste and delay, and (3) disruptive
behavior. After Ms. Knowles gave oral and written replies,
the agency’s deciding official issued a final decision on
March 10, 2017 sustaining the charges and mitigating the
proposed ten-day suspension to seven days.
On January 10, 2017, the agency issued a memoran-
dum stating that Ms. Knowles left protected health infor-
mation and personally identifiable information concerning
several patients unattended and unsecured on her desk.
On February 7, 2017, the agency issued another memoran-
dum finding that Ms. Knowles committed a privacy viola-
tion by leaving a pre-complaint form with her own name,
KNOWLES v. DVA 3
address, and social security number face-up in a tray by
her work station.
On March 26, 2018, the agency again proposed to sus-
pend Ms. Knowles from duty and pay, this time for fourteen
days based on two charges: (1) failure to follow instructions
and (2) disruptive behavior. After Ms. Knowles gave oral
and written replies, the agency’s deciding official issued a
final decision on April 20, 2018, sustaining the charges and
the proposed fourteen-day suspension.
On June 29, 2018, the agency proposed to remove Ms.
Knowles from federal employment based on two charges:
(1) failure to cooperate and (2) failure to safeguard confi-
dential information. To date, the agency has not reached a
decision regarding Ms. Knowles’s proposed removal.
The OSC closed its inquiry as to whether the agency
was improperly storing patients records on September 29,
2017 and determined that the agency had begun safe-
guarding documents in compliance with agency regula-
tions. The OSC closed its inquiry into Ms. Knowles’s claim
of whistleblower retaliation on October 18, 2018. Ms.
Knowles then filed an individual right of action with the
Board on October 19, 2018, alleging that the agency’s per-
sonnel actions against her violated the WPA because they
were in retaliation for making a protected disclosure.
Based on the testimony and evidence presented, the ad-
ministrative judge found that Ms. Knowles had made at
least one protected disclosure and had established that her
disclosure was a contributing factor in the agency’s person-
nel actions. But the administrative judge also found that
the agency would have taken the same disciplinary actions
notwithstanding Ms. Knowles’s disclosure and therefore
that corrective action was not warranted. The administra-
tive judge’s initial decision became the final decision of the
Board. Ms. Knowles timely appealed to this court. We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
4 KNOWLES v. DVA
Our standard of review is limited and requires this
court to affirm a decision of the Board unless it is “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with the law; (2) obtained without proce-
dures required by law, rule, or regulation having been fol-
lowed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). Substantial evidence is “relevant evi-
dence” that “a reasonable mind might accept as adequate
to support a conclusion.” Ingram v. Dep’t of the Army, 623
Fed. Appx. 1000, 1003 (Fed. Cir. 2015).
The WPA prohibits an agency from taking a personnel
action because of any whistleblowing “disclosure” or activ-
ity. 5 U.S.C. § 2302(b)(8)–(9). An employee who believes
he has been subjected to illegal retaliation must prove by a
preponderance of the evidence that he made a protected
disclosure that contributed to the agency’s action against
him. See Whitmore v. Dep’t of Labor,
680 F.3d 1353, 1367
(Fed. Cir. 2012). “If the employee establishes this prima
facie case of reprisal for whistleblowing, the burden of per-
suasion shifts to the agency to show by clear and convinc-
ing evidence that it would have taken ‘the same personnel
action in the absence of such disclosure.’”
Id. at 1364 (quot-
ing 5 U.S.C. § 1221(e)). If the agency does not show by clear
and convincing evidence that it would have taken the same
action absent the whistleblowing, the agency’s personnel
action must be set aside. See Siler v. Envtl. Prot. Agency,
908 F.3d 1291, 1298 (Fed. Cir. 2018).
In Ms. Knowles’s case, the government does not dis-
pute that agency officials issued personnel actions against
her. The parties likewise agree that Ms. Knowles made
protected disclosures. The question here is whether the
Board properly found that the agency established “by clear
and convincing evidence,” that for each of the personnel ac-
tions taken between 2016 and 2018, “it would have taken
the same personnel action in the absence of [a protected]
disclosure.” 5 U.S.C. § 1221(e)(2). This Court has outlined
factors to consider to answer that question. Carr v. Soc.
KNOWLES v. DVA 5
Sec. Amin.,185 F.3d 1318, 1323 (Fed. Cir. 1999). Under
Carr, the Board considers (1) “the strength of the agency’s
evidence in support of its personnel action;” (2) “the exist-
ence and strength of any motive to retaliate on the part of
the agency officials who were involved in the decision;” and
(3) “any evidence that the agency takes similar actions
against employees who are not whistleblowers but who are
otherwise similarly situated.”
Id. Here, substantial evi-
dence supports the Board’s findings with respect to the
Carr factors and its ultimate determination that the
agency would have implemented the personnel actions it
did, or proposed to, even if Ms. Knowles had not made a
protected disclosure.
A. MARCH 2017: SEVEN DAY SUSPENSION
In December 2016, the agency proposed a ten-day sus-
pension, which was mitigated to a seven-day suspension in
March 2017. The charges against Ms. Knowles included:
(1) failure to safeguard confidential information, (2) negli-
gence causing waste and delay, and (3) disruptive behavior.
Charge one was supported by four specifications, all of
which detailed instances in which Ms. Knowles mishan-
dled or lost confidential information. Charge two was sup-
ported by three specifications all of which relate to the free
credit monitoring services the agency had to provide to vet-
erans due to Ms. Knowles’s mishandling of confidential in-
formation. Charge three was supported by three
specifications, all of which discussed Ms. Knowles’s disrup-
tive behavior during work, including Ms. Knowles’s lan-
guage and actions in front of veterans.
With respect to the first Carr factor, substantial evi-
dence supports the Board’s findings that the agency met its
burden of proving charges one and two. J.A. 11–12. For
charge one, the record contained a handwritten note from
a veteran stating that while he was sitting with Ms.
Knowles and she was looking for his patient information,
another veteran returned it to him. J.A. 11. Additionally,
6 KNOWLES v. DVA
this mishandling of information was also documented in a
memorandum from 2016.
Id. For charge two, the Board
noted that Ms. Knowles did not deny that her actions re-
quired the agency to bear the expense of credit monitoring
for veterans whose confidential information she had mis-
placed. J.A. 12. The Board declined to consider charge
three, because the agency provided little supporting testi-
mony and evidence.
Id. The Board reasonably found the
evidence in supporting charges one and two sufficient to
sustain those charges and justify the imposed seven-day
suspension.
Id.
With respect to the second Carr factor, the Board
properly found no retaliatory motive by the three agency
officials involved in recommending, proposing, and decid-
ing Ms. Knowles’s suspension. J.A. 12–14. Ms. Knowles
argues that for all three agency officials her “criticisms re-
flected on both of their capacities as management officials
and employees, which is sufficient to establish a substan-
tial retaliatory motive.” The Board is in the best position
to assess the credibility of witnesses. Haebe v. DOJ,
288
F.3d 1288, 1300 (Fed. Cir. 2002). We find that the Board
appropriately made credibility determinations as to each
testifying official and its “find[ing of] no evidence in the rec-
ord” for retaliatory motivation for these officials supported
by substantial evidence. J.A. 13, 14.
With respect to the third Carr factor, the Board found
“neither party presented meaningful evidence regarding
the extent to which the agency may take similar actions
against employees who did not engage in protected activity
but who are otherwise similarly situated to the appellant.”
J.A. 14. Thus, the Board concluded that “there is no rele-
vant comparator evidence.”
Id. Ms. Knowles argues that
the agency did not take similar actions against a different
whistleblower employee, Dr. Roula Baroudi, who was ac-
cused of photographing patient records. Dr. Baroudi, how-
ever, was not a similarly situated non-whistleblower, but
rather an allegedly similarly situated whistleblower.
KNOWLES v. DVA 7
Therefore, the Board appropriately did not consider this in-
formation. Siler v. Envtl. Prot. Agency,
908 F.3d 1291, 1299
(Fed. Cir. 2018) (“Though the agency’s treatment of other
whistleblowers may illuminate any motive to retaliate un-
der Carr factor 2, it does not show the agency’s treatment
of non-whistleblower employees accused of similar conduct,
the precise inquiry considered under Carr factor 3.”).
Based on the record, substantial evidence supports the
Board’s decision that the agency properly established by
clear and convincing evidence that it would have taken the
same personnel action even absent Ms. Knowles’s pro-
tected disclosure.
B. 2017 SECURITY VIOLATIONS
In 2017, Ms. Knowles was informed that she had vio-
lated agency rules related to safeguarding printed and elec-
tronic individually identifiable privacy-protected
information. The agency issued two memorandums, the
first from the Information Security Officer (ISO) and the
second from the Assistant Chief of Health Information
Management (ACHIM).
As to the first Carr factor, the Board found strong evi-
dence supporting the violations, and substantial evidence
supports its finding. J.A. 15, 17. The first memorandum
from the agency’s ISO on January 10, 2017, detailed that
Ms. Knowles had left patient records unattended or unse-
cured on her desk. J.A. 14–15. The Board found that Ms.
Knowles did not deny leaving the information unattended
and unsecured on her desk. J.A. 15. The second memoran-
dum from February 7, 2017 indicated Ms. Knowles left a
pre-complaint form with Ms. Knowles’s full name, address,
and social security number face-up in the top tray at a work
station. J.A. 16. Again, Ms. Knowles did not deny the al-
legation. J.A. 17.
As to the second Carr factor, substantial evidence sup-
ports the Board’s finding that no evidence existed on the
part of the two agency officials to retaliate against Ms.
8 KNOWLES v. DVA
Knowles. The ISO was unaware of Ms. Knowles’s protected
disclosure when it issued the January 2017 memorandum.
J.A. 15. Nor was there any evidence in the record as to
whether the ACHIM, the author of the second memoran-
dum, knew about Ms. Knowles’s protected disclosure. J.A.
17.
Neither Ms. Knowles nor the government presented ev-
idence as to a similarly situated non-whistleblower. There-
fore, the Board was free to find the personnel action lawful
under Carr factors one and two. Sutton v. Dep’t of Justice,
94 M.S.P.R 4, 12–13 (2003) (finding that whistleblower was
lawfully removed based on the evidence under Carr factors
one and two, where the record contained no evidence of ac-
tion taken against similarly situated non-whistleblowers);
see also McCarthy v. Int’l Boundary & Water Comm.: U.S.
& Mexico, 116 M.S.P.R. 594, 626 (2011) (concluding that
“the third Carr factor is not a significant factor for the
Board’s analysis in the instant appeal” in the absence of
evidence showing that the agency took similar actions
against similarly situated non-whistleblowers). 1 Thus, the
Board did not err in holding that the agency properly es-
tablished by clear and convincing evidence that it would
have taken the same personnel action even absent Ms.
Knowles’s protected disclosure.
C. MARCH 2018: FOURTEEN DAY SUSPENSION
In March 2018, the agency proposed to suspend Ms.
Knowles for fourteen days without pay based on two
charges, “failure to follow instructions” and “disruptive be-
havior.” With respect to the first Carr factor, substantial
evidence supports the Board’s finding that the record evi-
dence supports the validity of the charges. J.A. 19. The
1 To the extent that Ms. Knowles is presenting the
same evidence with respect to Dr. Baroudi, see the expla-
nation in part
A, supra.
KNOWLES v. DVA 9
record evidence contained the March 26, 2018 suspension
proposal with handwritten notes by Ms. Knowles.
Id.
None of Ms. Knowles’s notes denied the allegations, nor did
Ms. Knowles offer testimony about the underlying conduct,
as to either charge.
Id. Moreover, as to the disruptive be-
havior charge, the record contained the email sent by Ms.
Knowles to Ms. Royer, accusing Ms. Royer of altering an
email originally drafted by Ms. Knowles. J.A. 18. Addi-
tionally, the Board properly credited Ms. Royer’s testimony
that she feared Ms. Knowles would damage her career and
she therefore raised the allegation with her supervisor.
J.A. 21.
As to the second Carr factor, the Board reasonably
found no evidence that the proposing official or the deciding
official suffered negative consequences as a result of Ms.
Knowles’s protected disclosure nor other evidence suggest-
ing the disclosure motivated their decisions. J.A. 21–22.
Ms. Knowles argues that the proposing officer was placed
on a “Performance Improvement Plan” (Plan) that “focused
on areas that the Business Office Service Leadership Team
was underperforming in.” To the extent Ms. Knowles ar-
gues that participation in the Plan was a negative conse-
quence of her disclosures, there is no evidence in the record
supporting this claim. And, as explained above, we find
that the Board made appropriate credibility determina-
tions in finding no evidence of a retaliatory motive.
With respect to the third Carr factor, we agree with the
Board that neither Ms. Knowles nor the government pre-
sented evidence as to a similarly situated non-whistle-
blower and therefore the Board appropriately only
considered Carr factors one and two. 2 Thus, the Board did
not err in holding that the agency properly established by
2 To the extent that Ms. Knowles is presenting the
same evidence with respect to Dr. Baroudi, see the expla-
nation in part
A, supra.
10 KNOWLES v. DVA
clear and convincing evidence that it would have taken the
same personnel action even absent Ms. Knowles’s pro-
tected disclosure.
D. JUNE 2018: PROPOSED REMOVAL
In June 2018, the agency proposed to remove Ms.
Knowles from federal employment based on two charges.
The first charge was “failure to cooperate” and was sup-
ported by two specifications which both relate to Ms.
Knowles’s failure to address questions and issues from the
agency’s Privacy Office. The second charge was “failure to
safeguard confidential information.” The second charge
was supported by eleven specifications alleging that Ms.
Knowles sent confidential veteran information to her per-
sonal email address.
With respect to the first Carr factor, the Board’s find-
ings of strong evidence to support both charges are amply
supported by the evidence. The record contains a copy of
the Privacy Office’s confirmation memorandum, listing all
of the steps Ms. Knowles should take with respect to the
confidential information she sent to her personal email ad-
dress, which Ms. Knowles did not sign. J.A. 127. The rec-
ord in front of the Board also contained copies of several
email messages containing the confidential information
Ms. Knowles sent to her personal email account. J.A. 27.
Ms. Knowles did not deny the facts alleged in the specifica-
tions.
Id.
As to the second Carr factor, the Board found no evi-
dence in the record that the officer proposing the removal
suffered negative consequences as a result of Ms. Knowles’s
disclosure nor any other evidence suggesting that such a
disclosure motivated her to issue the notice of removal.
J.A. 27–28. For the reasons provided earlier, we find that
the Board made appropriate credibility determinations and
substantial evidence supports the Board’s decision. Be-
cause Ms. Knowles’s arguments and the Board’s finding as
to the third Carr factor are no different than what was
KNOWLES v. DVA 11
presented for the other personnel actions discussed above,
we affirm the Board’s findings here as well.
We have considered Ms. Knowles’s remaining argu-
ments and find them unpersuasive.
CONCLUSION
For the foregoing reasons, the decision of the Board is
affirmed.
AFFIRMED
COSTS
No Costs.
