Howard v. Defense

• Court: Court of Appeals for the Federal Circuit
• Decided: November 5, 2025
• Docket: 25-1506
• Status: Unpublished

Opinion

Case: 25-1506 Document: 28 Page: 1 Filed: 11/05/2025

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

ANGELA HOWARD, Petitioner

v.

DEPARTMENT OF DEFENSE, Respondent ______________________

2025-1506 ______________________

Petition for review of the Merit Systems Protection Board in No. DC-1221-23-0349-W-1. ______________________

Decided: November 5, 2025 ______________________

ANGELA HOWARD, Fort Belvoir, VA, pro se.

BRYAN MICHAEL BYRD, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, for respondent. Also represented by ELIZABETH MARIE HOSFORD, PATRICIA M. MCCARTHY, BRETT SHUMATE. ______________________

Before DYK, TARANTO, and CHEN, Circuit Judges. PER CURIAM. Case: 25-1506 Document: 28 Page: 2 Filed: 11/05/2025

Angela Howard was employed by the U.S. Department of Defense (agency) as a Clinical Laboratory Scientist at an agency hospital blood bank. While she was still in proba- tionary status, the agency terminated her employment, and she then sought corrective action from the Merit Sys- tems Protection Board, arguing that her termination vio- lated whistleblower-protection provisions of 5 U.S.C. § 2302 because it was in retaliation for protected disclo- sures—particularly, that the agency was impairing her ability to take time for meal breaks during her work shifts. The agency responded, as relevant here, that it terminated Ms. Howard’s employment because of her conduct and per- formance, not because she made complaints. The Board denied relief. While concluding that Ms. Howard had ex- hausted her administrative remedies and had made pro- tected disclosures that were a contributory factor in the termination, the Board determined that the agency had proved by clear and convincing evidence that it would have terminated her employment even in the absence of the pro- tected disclosures. See Howard v. Department of Defense, No. DC-1221-23-0349-W-1, 2023 WL 9777265 (M.S.P.B. Nov. 13, 2023) (2023 Decision); Howard v. Department of Defense, No. DC-1221-23-0349-W-1, 2025 WL 33518 (M.S.P.B. Jan. 3, 2025) (2025 Decision). On Ms. Howard’s appeal, we affirm. I Ms. Howard started working as a Clinical Laboratory Scientist at Fort Belvoir Community Hospital in June of 2020. Agency’s Supplemental Appendix (S. Appx.) 156. Her appointment to the position was subject to a two-year probationary period. Id. After her initial supervisor left the agency in April 2021, Ms. Howard reported to the same interim supervisor until her removal on August 6, 2021. S. Appx. 183, 125. In May 2021, Ms. Howard emailed her interim super- visor, expressing concerns that she was not being allowed Case: 25-1506 Document: 28 Page: 3 Filed: 11/05/2025

HOWARD v. DEFENSE 3

to take meal breaks during her shifts. S. Appx. 185. The interim supervisor replied to her email with assurances that he would contact Ms. Howard’s union representative and work with the hospital’s leadership to address the is- sue. Id. During the next few weeks, Ms. Howard contacted her union representative, as well as the Chief of Labor Management and Employee Relations, among other offi- cials, to further complain about the alleged denial of meal breaks. S. Appx. 193–200. The agency investigated work- loads in the blood bank and found that employees in Ms. Howard’s position had not informed management of any in- ability to take meal breaks. S. Appx. 166–68. As the back-and-forth between Ms. Howard and the agency regarding meal breaks continued, her interim su- pervisor learned of or witnessed workplace conflict prob- lems, resistance to feedback, and performance deficiencies. S. Appx. 127–133, 177–78. In a July 2021 memorandum, Ms. Howard’s interim supervisor identified five examples of her deficient performance, including her failure to: (1) summarize and review training slides regarding a new internal agency system, 2023 Decision, at 38; 1 (2) complete or respond to requests for status updates regarding a Vali- dation Script, which put the blood bank at risk of missing a deadline, 2023 Decision, at 30–32; S. Appx. 187; (3) listen to her interim supervisor’s instructions to limit contacts of subject-matter experts to certain categories of questions, S. Appx. 201–03; (4) complete the corrective action of a Qual- ity Indicator Performance Report after she observed that a patient had been misregistered under the wrong medical number, creating a patient safety risk, 2023 Decision, at 32–35; S. Appx.137–41, 152–53; and (5) take a timely

1 For the 2023 Decision, we cite the page numbers on

the administrative judge’s opinion in the Supplemental Ap- pendix. See S. Appx. 16–79. Case: 25-1506 Document: 28 Page: 4 Filed: 11/05/2025

corrective action upon discovering a mistake in a special blood order, S. Appx. 154–55, 191–92. See S. Appx. 177– 78. In August 2021, after receiving her interim supervi- sor’s memorandum, a Human Resources Specialist recom- mended Ms. Howard’s termination from her position, noting that her performance was unlikely to improve once her probationary period ended. 2023 Decision, at 53–56; S. Appx. 150–51. Concluding that Ms. Howard’s conduct ad- versely affected workplace efficiency and raised issues of patient safety, her interim supervisor signed her termina- tion letter. 2023 Decision, at 52; S. Appx. 147–49. Ms. Howard then exhausted her administrative remedies with the Office of Special Counsel and filed an Individual Right of Action (IRA) appeal with the Board. 2023 Decision, at 12–13; see 5 U.S.C. §§ 1214(a)(3), 1221(a). The Board-assigned administrative judge issued an in- itial decision after conducting a multi-day hearing, at which ten witnesses testified. 2023 Decision, at 1–64. In the initial decision, the administrative judge found that while Ms. Howard’s complaints about the alleged lack of meal breaks amounted to protected disclosures, and those protected disclosure were a contributing factor in Ms. How- ard’s termination, the agency proved by clear and convinc- ing evidence that it would have terminated her employment even in the absence of the protected disclo- sure. 2023 Decision, at 24–25, 63. Ms. Howard petitioned for full Board review of the administrative judge’s findings. S. Appx. 94. The Board considered the agency’s evidence and affirmed the administrative judge’s findings, which be- came the Board’s final decision. 2025 Decision, at *1–3. Ms. Howard timely petitioned for review by this court. We have jurisdiction under 28 U.S.C. § 1295(a)(9). Case: 25-1506 Document: 28 Page: 5 Filed: 11/05/2025

HOWARD v. DEFENSE 5

II Under the statute defining the scope of our review of the Board decision, we may set aside the Board’s decision here only if it is “(1) arbitrary, capricious, an abuse of dis- cretion, or otherwise not in accordance with law; (2) ob- tained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). We review the Board’s factual findings for substantial-evidence support. Knox v. Department of Justice, 125 F.4th 1059, 1064 (Fed. Cir. 2025). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229 (1938), even if an oppo- site conclusion might also be supportable, Consolo v. Fed- eral Maritime Commission, 383 U.S. 607, 619–20 (1966). A petitioner in an IRA appeal seeking corrective action for alleged whistleblower reprisal must demonstrate that she made a protected disclosure under 5 U.S.C. § 2302(b)(8) and that the protected disclosure was a con- tributing factor in the agency’s decision to take a personnel action, such as removal from employment, as defined by 5 U.S.C. § 2302(a)(2)(A). See 5 U.S.C. § 1221(e)(1); Cahill v. Merit Systems Protection Board, 821 F.3d 1370, 1373 (Fed. Cir. 2016). If the petitioner makes that showing, relief may nevertheless be denied if the agency proves by clear and convincing evidence that it would have taken the same per- sonnel action even in the absence of the protected disclo- sure. See 5 U.S.C. § 1221(e)(2); Miller v. Department of Justice, 842 F.3d 1252, 1257 (Fed. Cir. 2016). Analysis at that stage is to include, but not necessarily be limited to, consideration of the following factors: “the strength of the agency’s evidence in support of its personnel action; the ex- istence 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 Case: 25-1506 Document: 28 Page: 6 Filed: 11/05/2025

otherwise similarly situated.” Carr v. Social Security Ad- ministration, 185 F.3d 1318, 1323 (Fed. Cir. 1999); see Mil- ler, 842 F.3d at 1257. We discern no reversible error in the Board’s decision in this matter. A Ms. Howard argues that the Board committed reversi- ble errors regarding the protected disclosures related to meal breaks, the knowledge-and-timing test for the con- tributory-factor element of her claim, and the Carr factors. See Petitioner’s Br. at 7–12, 23. We are unpersuaded by these arguments. The Board explicitly adopted, and neither party chal- lenged before the full Board, the administrative judge’s af- firmative determination that Ms. Howard’s complaints about meal breaks amounted to protected disclosures un- der 5 U.S.C. § 2302(b)(8). See 2025 Decision, at *1. Like- wise, the administrative judge affirmatively determined— after expressly considering the knowledge-and-timing test consistent with 5 U.S.C. § 1221(e)(1)—that these disclo- sures were a contributing factor in the decision to termi- nate Ms. Howard. 2023 Decision, at 24–25; see Kewley v. Department of Health and Human Services, 153 F.3d 1357, 1362 (Fed. Cir. 1998) (explaining that, under § 1221(e), “circumstantial evidence of knowledge of the protected dis- closure and a reasonable relationship between the time of the protected disclosure and the time of the personnel ac- tion will establish, prima facie, that the disclosure was a contributing factor to the personnel action” (internal cita- tion and quotation marks omitted)). The administrative judge found that Ms. Howard satisfied the knowledge-and- timing test, and the Board adopted all factual findings of the administrative judge. 2023 Decision, at 24–25; 2025 Decision, at *1. Case: 25-1506 Document: 28 Page: 7 Filed: 11/05/2025

HOWARD v. DEFENSE 7

Regarding the issue decided adversely to her—whether the agency would have terminated her employment even in the absence of the protected disclosures—Ms. Howard crit- icizes the Board’s evaluation of the Carr factors. Peti- tioner’s Br. at 13, 17, 22–24. She has not, however, shown reversible error on the Board’s determination on this issue. The Board weighed the Carr factors and found that the agency successfully rebutted Ms. Howard’s prima facie case of retaliation. 2023 Decision, at 26–63. For the first factor, regarding the strength of the agency’s evidence in support of its personnel action, the Board found that the agency’s reasoning for Ms. Howard’s termination was sup- ported by strong evidence demonstrating insubordination, deficient performance, and conduct that risked patient safety. 2023 Decision, at 52–53; see S. Appx. 177–78. For the second factor, regarding any motive for agency officials to retaliate, the Board found that the agency “had a limited motive to retaliate” but it “was not strong,” given “the lack of consequences or belief that the disclosure had merit or would result in the need for change.” 2023 Decision, at 60– 61. That finding—made by the administrative judge, not challenged by Ms. Howard before the full Board, see 2025 Decision, at *1; S. Appx. 94–115—has substantial-evidence support in, for example, the action of relevant agency offi- cials attempting to address the issue raised by her com- plaints, 2023 Decision, at 60–61; S. Appx. 193–200. For the third factor, regarding whether the agency took similar ac- tions against similarly situated, non-whistleblower em- ployees, the Board considered whether other employees, identified by Ms. Howard, were similarly situated but had been treated differently. 2023 Decision, at 62–63. It gave this factor little weight because the other employees iden- tified by Ms. Howard were not probationary or otherwise were not adequate comparators. Id. On this record, the Board committed no error in giving the first Carr factor the greatest weight and finding that the agency has proved by clear and convincing evidence Case: 25-1506 Document: 28 Page: 8 Filed: 11/05/2025

that it would have terminated Ms. Howard’s employment even in the absence of her protected disclosures. B Ms. Howard argues that the Board failed to consider certain evidence revealing negligence in supervision by an individual who she claims was “in material fact [her] offi- cial supervisor” at the time of her termination, as well as evidence that her interim supervisor did not have the au- thority to terminate her. Petitioner’s Br. at 4–8. But an IRA appeal is narrow in scope—it is “limited to the merits of allegations of violations of the Whistleblower Protection Act.” Young v. Merit Systems Protection Board, 961 F.3d 1323, 1327–28 (Fed. Cir. 2020). The present arguments might be relevant as affirmative defenses or charges of harmful procedural in different contexts, but Ms. Howard has not shown how these arguments are relevant to the IRA appeal. See id.; 5 C.F.R. § 1209.2(c) (denying an ap- pellant the opportunity to raise affirmative defenses in an IRA appeal). Nor, in any event, has she established how this evidence could alter the findings on the whistleblower issue that the Board resolved against her. C In her remaining arguments, Ms. Howard contends that the Board was “complicit[ ] in the agency’s bad-faith tactics” by denying her affirmative defense, limiting cer- tain testimony, and acquiescing in the agency’s “deliberate concealment” of evidence. Petitioner’s Br. 24. Ms. How- ard’s arguments regarding the Board’s bias amount to as- sertions that the Board abused its discretion in its decision to uphold her termination. The Board “abuses its discre- tion when ‘the decision is based on an erroneous interpre- tation of the law, on factual findings that are not supported by substantial evidence, or represents an unreasonable judgment in weighing relevant factors.’” Tartaglia v. De- partment of Veterans Affairs, 858 F.3d 1405, 1407–08 (Fed. Cir. 2017) (quoting Gose v. United States Postal Service, Case: 25-1506 Document: 28 Page: 9 Filed: 11/05/2025

HOWARD v. DEFENSE 9

451 F.3d 831, 836 (Fed. Cir. 2006)). Ms. Howard has not shown any such abuse of discretion. Ms. Howard’s accusations are not substantiated by rec- ord evidence. Instead, the administrative judge properly examined the evidence relevant to Ms. Howard’s IRA ap- peal, while excluding evidence as required by 5 C.F.R. § 1209.2(c). To demonstrate that either the administrative judge or the Board acted with bias, Ms. Howard would have needed to make a showing of “a deep-seated favoritism or antagonism that would make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d 1358, 1362 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). Ms. Howard has not provided evidence of bias that would meet that high burden, and nothing in the initial or final decision reveals such bias. III We have considered Ms. Howard’s other arguments and find them unpersuasive. For the foregoing reasons, we affirm the Board’s final decision. The parties shall bear their own costs. AFFIRMED