Case: 20-1702 Document: 19 Page: 1 Filed: 02/12/2021
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JACQUELINE BROWN,
Petitioner
v.
DEPARTMENT OF THE AIR FORCE,
Respondent
______________________
2020-1702
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-1221-19-0481-W-1.
______________________
Decided: February 12, 2021
______________________
JACQUELINE BROWN, Cibolo, TX, pro se.
DELISA SANCHEZ, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by DEBORAH
ANN BYNUM, JEFFREY B. CLARK, ROBERT EDWARD
KIRSCHMAN, JR.
______________________
Before PROST, Chief Judge, SCHALL and REYNA, Circuit
Judges.
Case: 20-1702 Document: 19 Page: 2 Filed: 02/12/2021
2 BROWN v. AIR FORCE
PER CURIAM.
DECISION
In this appeal, Jacqueline Brown petitions for review
of the final decision of the Merit Systems Protection Board
(“Board”) in Jacqueline Brown v. Department of the Air
Force, No. SF-1221-19-0481-W-1 (M.S.P.B. Mar. 24, 2020).
Resp’t’s App. (“App.”) 1. In that decision, the Board denied
Ms. Brown’s request for corrective action in her June 7,
2019 individual right of action (“IRA”) appeal. In her IRA
appeal, Ms. Brown challenged the February 19, 2019 action
of the Air Force removing her from her probationary posi-
tion. The Board denied Ms. Brown’s request for corrective
action because it concluded that she had failed to make any
protected whistleblower disclosures or engage in any pro-
tected actions sufficient to establish an IRA. Id. at 23. For
the reasons set forth below, we affirm the Board’s decision.
DISCUSSION
I.
On April 2, 2018, the Air Force hired Ms. Brown as a
Supply Technician GS-2005-05 ST with the 9th Physiolog-
ical Support Squadron (“9PSPTS”) at Beale Air Force Base
in Yuba, California. App. 4. In her position, Ms. Brown
was required to perform tasks related to the receipt, stor-
age, issue, and replenishment of supplies for 9PSPTS. Id.
Ms. Brown’s appointment was subject to a two-year
probationary period. Id. By regulation, “[t]he agency shall
utilize the probationary period as fully as possible to deter-
mine the fitness of the employee.”
5 C.F.R. § 315.803(a).
The regulation further provides that the agency “shall ter-
minate [the employee’s] services during [the probationary]
period if the employee fails to demonstrate fully [her] qual-
ifications for continued employment.”
Id.
On February 14, 2019, Ms. Brown received a notice of
termination from her supervisor, Kirsten Shapiro. The
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BROWN v. AIR FORCE 3
notice informed Ms. Brown that Ms. Shapiro proposed to
terminate her appointment effective February 19, 2019.
Id. at 5. The notice stated that Ms. Brown had failed “to
perform a portion of Duty 3” for five days in January 2019,
and that two of her coworkers, Staff Sergeants Aaron Espi-
noza and Ariel Schlenther, had submitted complaints ex-
pressing frustrations with Ms. Brown’s lack of civility in
the workplace and her refusal to perform certain work, be-
cause she claimed it was not her responsibility.
Id.
On February 15, 2019, Ms. Brown met with Lieutenant
Colonel Steven Dawson, the Commander of 9PSPTS.
Id.
at 6. Ms. Brown told Lieutenant Colonel Dawson that she
hadn’t followed instructions from her supervisors because
she was following Air Force Instruction (“AFI”) 23-101 and
other Materiel Management (“MM”) regulations.
Id. Fol-
lowing this meeting, Lieutenant Colonel Dawson concurred
with Ms. Shapiro’s decision to terminate Ms. Brown’s em-
ployment within her probationary period.
Id. at 8–9. As a
result, Ms. Brown was terminated from her employment
effective February 19, 2019.
II.
Ms. Brown filed a complaint with the Office of Special
Counsel (“OSC”), alleging that the Air Force had termi-
nated her employment because she had engaged in pro-
tected whistleblowing activities. After OSC issued a letter
closing the matter on May 28, 2019, Ms. Brown filed her
IRA with the Board. App. 9. Following a hearing, the ad-
ministrative judge (“AJ”) to whom the IRA was assigned
rendered an initial decision denying Ms. Brown’s request
for corrective action.
Id. at 23–24.
In his decision, the AJ rejected Ms. Brown’s conten-
tions regarding (1) an alleged complaint she had made to
Master Sergeant Charles Myers in April 2018 regarding
compliance with supply regulations, including AFI 23-101;
(2) an alleged complaint she had made to Lieutenant Colo-
nel Dawson in April 2018 regarding safety regulations; and
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4 BROWN v. AIR FORCE
(3) an alleged complaint she had made in January 2019 to
Master Sergeant Myers regarding safety regulations. Ms.
Brown claimed that all of these complaints were protected
disclosures pursuant to
5 U.S.C. § 2302(b)(8).
Id. at 9–10.
For each disclosure, the AJ found that a disinterested ob-
server with knowledge of the essential facts known to “and
readily ascertainable by the appellant, could reasonabl[y]
conclude that the regulations applicable to supply units,
including AFI 23-101, did not apply to the internal move-
ment of parts within the physiological support squadron,”
9PSPTS.
Id. at 18, 21. The AJ further found that Ms.
Brown had failed “to adequately show that any of the three
enumerated disclosures involved matters that a reasonable
person in his or her position would believe evidenced a vio-
lation of law, rule, or regulation for the purpose of an IRA.”
Id. at 21–22. The AJ also noted that the disclosures did not
amount to “gross mismanagement,” “abuse of authority,” or
“gross waste of funds” and were “insufficient to constitute
a disclosure of a substantial and specific danger to public
health or safety.”
Id. at 22–23.
After the AJ’s initial decision became final, Ms. Brown
petitioned for review. We have jurisdiction pursuant to
5
U.S.C. § 7703(b)(1) and
28 U.S.C. § 1295(a)(9).
III.
Our scope of review of a decision of the Board is limited.
We will affirm the Board’s decision unless it is “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.”
5 U.S.C.
§ 7703(c).
To establish a prima facie case of retaliation for whis-
tleblowing activity, an employee must show by a prepon-
derance of the evidence that (1) she made a protected
disclosure, and (2) the disclosure was a contributing factor
in a personnel action taken against her. See 5 U.S.C.
Case: 20-1702 Document: 19 Page: 5 Filed: 02/12/2021
BROWN v. AIR FORCE 5
§ 1221(e)(1). A disclosure is protected for purposes of the
Whistleblower Protection Act if it pertains to information
that the employee “reasonably believes evidences[ ] (i) any
violation of any law, rule, or regulation, or (ii) gross mis-
management, a gross waste of funds, an abuse of authority,
or a substantial and specific danger to public health or
safety.”
5 U.S.C. § 2302(a)(2), (b)(8)(A).
IV.
In her petition, Ms. Brown makes several arguments.
We address them in turn. She contends first that the AJ
should have allowed the testimony of Stefanija Cerillo, a
GS-2005 Supply Technician, and that of Retired Sergeant
Kimberly Muhlecke, former Superintendent of 9PSPTS.
She claims that Ms. Cerillo “voiced the same concerns” she
had and was not separated, and that Ms. Muhlecke would
have testified that she (Ms. Brown) followed the correct
regulations and that 9PSPTS was required to comply with
the AFI 23-101 regulations. Pet’r’s Br. 2–3. Ms. Brown
also contends that the AJ should have considered evidence
she submitted from a California Unemployment Insurance
Appeals Board decision in support of the proposition that
she did not engage in the misconduct that formed the basis
for the termination of her appointment.
Id. at 3–4.
We see no error in the AJ’s evidentiary rulings. The
alleged unconsidered evidence to which Ms. Brown points
went to the basis for the termination of her probationary
appointment, not to the AJ’s determination that Ms. Brown
had failed to assert a protected disclosure.
Ms. Brown also complains,
id. at 4–6, that the AJ erred
in relying upon the testimony of Lieutenant Colonel Daw-
son and Master Sergeant Myers in concluding that she had
not made protected disclosures in April 2018 and January
2019. See App. 18, 21. The AJ noted that Lieutenant Colo-
nel Dawson and Master Sergeant Myers “separately testi-
fied, without contradiction,” that the regulations Ms.
Brown alleged were not being followed did not apply to her
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6 BROWN v. AIR FORCE
employment with the 9PSPTS, since their squadron was
not an MM Activity or a Logistics Readiness Squadron.
Id.
at 8, 13, 16, 17. When Ms. Brown complained to Lieuten-
ant Colonel Dawson and Master Sergeant Myers about
these alleged safety violations, the AJ found both “sepa-
rately informed [her] that the . . . regulations did not apply
to the internal movement of parts between coworkers of the
same squadron, including [Ms. Brown’s] 9PSPTS section.”
Id. at 8. The AJ further noted that Ms. Brown “presented
little to dispute the testimony of Myers and Dawson . . . ,
and did not adequately address how these [regulations]
were applicable to internal supply sections.”
Id. at 21. We
therefore reject Ms. Brown’s challenges to the AJ’s findings
based upon the testimony of Master Sergeant Myers and
Lieutenant Colonel Dawson. An AJ’s credibility determi-
nations “are virtually unreviewable,” Hambsch v. Dep’t of
the Treasury,
796 F.2d 430, 436 (Fed. Cir. 1986), and in this
case Ms. Brown has not provided us with any reason why
we should overturn the AJ’s credibility determinations re-
lating to the testimony of Master Sergeant Myers and Lieu-
tenant Colonel Dawson.
Finally, Ms. Brown urges that the AJ made additional
errors. First, in an apparent reference to Carr v. Social
Security Administration,
185 F.3d 1318 (Fed. Cir. 1999),
she argues that the AJ “failed to focus on the Carr factors
and identify motives in key evidence and testimony.”
Pet’r’s Br. 6. Second, she argues the AJ failed to recognize
that the Air Force did not offer clear and convincing evi-
dence that it would have terminated her appointment in
the absence of her protected disclosures. Id. at 8. Neither
of these contentions has merit.
Little discussion is required concerning these argu-
ments. Taking Ms. Brown’s second argument first, the
“clear and convincing” burden only shifts to the agency if
the employee shows “by a preponderance of the evidence
that he or she made a protected disclosure under
5 U.S.C.
§ 2302(b)(8) that was a contributing factor to the
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BROWN v. AIR FORCE 7
[personnel action taken against the employee].” Whitmore
v. Dep’t of Labor,
680 F.3d 1353, 1367 (Fed. Cir. 2012) (cit-
ing
5 U.S.C. § 1221(e)). Because Ms. Brown failed to
demonstrate by a preponderance of the evidence that she
made a protected disclosure, the clear and convincing evi-
dence burden never shifted to the Air Force. Accordingly,
it was unnecessary for the Board to consider the Carr fac-
tors, which are used “[t]o evaluate whether the [agency]
would have taken the same action in the absence of [an em-
ployee’s] protected disclosure.” Robinson v. Dep’t of Veter-
ans Affs.,
923 F.3d 1004, 1018 (Fed. Cir. 2019) (citing Carr,
185 F.3d at 1323).
We have considered Ms. Brown’s other arguments and
have found them to be without merit.
CONCLUSION
For the foregoing reasons, we affirm the Board’s final
decision.
AFFIRMED
COSTS
No costs.
