USCA4 Appeal: 21-1169 Doc: 56 Filed: 03/15/2023 Pg: 1 of 17
PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 21-1169
YURIY B. MIKHAYLOV,
Petitioner - Appellant,
v.
DEPARTMENT OF HOMELAND SECURITY,
Respondent - Appellee.
On Petition for Review of an Order of the Merit Systems Protection Board. (PH-1221-19- 0343-W-2; PH-1221-20-0181-W-1)
Argued: October 27, 2022 Decided: March 15, 2023
Before KING and RUSHING, Circuit Judges, and TRAXLER, Senior Circuit Judge.
Petition for review denied by published opinion. Senior Judge Traxler wrote the opinion in which Judge King and Judge Rushing joined.
ARGUED: Morris Eli Fischer, MORRIS E. FISCHER, LLC, Silver Spring, Maryland, for Appellant. Kelly A. Krystyniak, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Brian M. Boynton, Acting Assistant Attorney General, Martin F. Hockey, Jr., Acting Director, Allison Kidd-Miller, Assistant Director, Commercial Litigation Branch, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; J. Douglas Whittaker, Office of the Chief Counsel, UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT, Omaha, Nebraska, for Appellee. USCA4 Appeal: 21-1169 Doc: 56 Filed: 03/15/2023 Pg: 2 of 17
TRAXLER, Senior Circuit Judge:
Yuriy Mikhaylov, an employee of the Immigration and Customs Enforcement
division of the Department of Homeland Security (“ICE” or “Agency”), petitions for
review of the final judgment of the Merit Systems Protection Board (the “Board”), which
rejected Mikhaylov’s claim that the Agency suspended him for two days in retaliation for
his disclosures of misconduct. Finding no reversible error, we deny the petition for review. 1
I.
Federal agencies are prohibited, inter alia, from taking or failing to take a
“personnel action” against an employee because of any disclosure of information made by
the employee that the employee “reasonably believe[d]” showed a “violation of any law,
rule, or regulation” or “gross mismanagement, 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(b)(8)(A)(i) & (ii).
An employee who believes a personnel action was reprisal for protected
whistleblowing may file an action with the Board (termed an appeal) seeking “corrective
action.” 5 U.S.C. § 1221(a); see Zachariasiewicz v. U.S. Dep’t of Justice, 48 F.4th 237,
242-43 (4th Cir. 2022). The employee may seek judicial review of the Board’s decision “in
the United States Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction.” 5 U.S.C.A. § 7703(b)(1)(B).
1 In Case No. 21-2429, Mikhaylov v. United States Department of Homeland Security, Mikhaylov challenges a separate disciplinary action that took place shortly after the events in this case. We dispose of that appeal in an unpublished opinion also filed today.
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To prove a whistleblower claim, the employee bears the burden of proving by a
preponderance of the evidence that he made a qualifying disclosure, and that the disclosure
was a “contributing factor in the personnel action” taken against the employee. 5 U.S.C.A.
§ 1221(e)(1). Even if the disclosure was a contributing factor, however, the employee is
not entitled to corrective action if “the agency demonstrates by clear and convincing
evidence that it would have taken the same personnel action in the absence of such
disclosure.” Id. § 1221(e)(2).
II.
Against this statutory background, we turn now to the facts. Mikhaylov has worked
for ICE since 1998. Mikhaylov’s work history includes a stint at ICE headquarters as
Section Chief and Acting Chief over firearms instruction. In 2018, Mikhaylov was serving
as the Assistant Field Office Director for the office in Baltimore, Maryland. He reported to
Field Office Director Dorothy Herrera-Niles.
ICE agents often carry their own firearms in addition to the firearms issued to them
by the Agency. ICE policy provides that the Agency will supply ammunition for
personally-owned weapons, but the employee must provide the holsters and magazines for
any personally-owned weapons used on the job. In July 2018, Herrera-Niles directed
Mikhaylov to acquire certain accessories for firearms, including 30 magazines and ankle
holsters for a specific model of Glock handgun—the “Glock 43”—as well as a supply of
holsters and magazines for another Glock handgun, the “Glock 26.” While many of the
agents at the Baltimore office carried those Glock models, only one Glock 43 and one
Glock 26 were government-issued weapons; the rest were personally-owned weapons. 3 USCA4 Appeal: 21-1169 Doc: 56 Filed: 03/15/2023 Pg: 4 of 17
Mikhaylov directed Savinder Jaspal to obtain the items requested by Herrera-Niles.
Jaspal was a Supervisory Detention and Deportation Officer who had also served for more
than two years as Senior Firearms Instructor. According to Jaspal, “the gist” of his
conversation with Mikhaylov was that the items to be purchased were “for [personally-
owned weapons] throughout the office.” J.A. 635; see J.A. 638 (“As far as I was informed
or as far as I understood they were to supply [Herrera-Niles] and other people with
[personally-owned weapons] accessories for their firearms.”).
After Jaspal determined that the requested items were not available through a
government database of available inventory, he checked back in with Mikhaylov, who
directed Jaspal to use the Agency purchase card to buy the items. Mikhaylov told Jaspal
that there could be something inappropriate about the purchase because of a policy he
learned about while working at ICE headquarters against paying for accessories for
personally-owned weapons. Jaspal testified that Mikhaylov said that since Jaspal didn’t
know about that policy, he should go ahead with the purchase.
After his conversation with Mikhaylov, Jaspal made inquiries to ICE’s Armory
Operations and an ethics office about the propriety of the purchases and was informed of
the policy prohibiting the use of Agency funds to purchase holsters or magazines for
personally-owned weapons. On July 18, Jaspal informed Mikhaylov that he would not be
purchasing the requested items because it violated Agency policy. Jaspal told Mikhaylov
that the purchase card was in his name and that he did not want to be held responsible for
an unauthorized purchase.
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Less than an hour after learning that Jaspal would not make the purchases,
Mikhaylov, after a conversation with Herrera-Niles, began the process of removing Jaspal
from his position as Senior Firearms Instructor. Jaspal found out a few hours later that he
had been removed through a phone call from Phillip Meadows, the man tapped by
Mikhaylov to replace Jaspal. Jaspal told Meadows he believed he had been replaced
because he refused to purchase the items requested by Mikhaylov.
On July 20, Jaspal filed a complaint with the Joint Intake Center alleging that
Mikhaylov removed him from his position in retaliation for Jaspal’s refusal to violate ICE
policy by purchasing the requested accessories. Jaspal was never directly informed about
the decision by Herrera-Niles or Mikhaylov. Before he was removed from the position,
Jaspal had not been counseled about any performance issues, and no concerns about his
performance had been raised in his employee evaluations.
ICE’s Office of Professional Responsibility (“OPR”) began an investigation of
Jaspal’s complaint. OPR interviewed numerous witnesses, including Mikhaylov and
Jaspal. In his interview, Mikhaylov confirmed that he was aware of “guidance” from ICE
that the employees themselves must purchase any accessories for personally-owned
weapons. See J.A. 345 (stating that the guidance was “for the personal weapons the officer
. . . needs to buy the stuff himself”). He also acknowledged telling Jaspal about the guidance
and that there might be something “inappropriate” about purchasing the requested items.
J.A. 353-54.
Mikhaylov told the investigators that he called Herrera-Niles a few minutes after
talking to Jaspal and informed her that Jaspal would not make the purchase because it 5 USCA4 Appeal: 21-1169 Doc: 56 Filed: 03/15/2023 Pg: 6 of 17
violated Agency policy. When asked what Herrera-Niles’ response was when she learned
about Jaspal, Mikhaylov began talking about the fact that he and Herrera-Niles had already
had “a lot of different issues” with Jaspal. J.A. 361. After cataloging his various concerns
about Jaspal, Mikhaylov said his concerns were not necessarily the reasons that Herrera-
Niles removed Jaspal from his position, and that he “d[idn’t] know why she made that
decision.” J.A. 363. Mikhaylov ultimately was able to recall that Herrera-Niles “brought
up some of the short comings that Jaspal already had and everything else,” and that “she
ask[ed] who I wanna put in.” J.A. 363.
While the investigation was proceeding, Mikhaylov made the disclosures that he
contends entitle him to whistleblower protection. In October 2018, Mikhaylov questioned
Janean Ohin, his supervisor in the Baltimore office, abouts reports that she had ignored a
national list of qualified candidates so she could hire her preferred job candidate. Later in
October, Mikhaylov complained that Diane Witte, who succeeded Herrera-Niles as
Baltimore Field Office Director, 2 had violated merit principles by wrongfully reassigning
his duties. Mikhaylov repeated these allegations in a December 2018 complaint filed with
the Office of Special Counsel. And in April 2019, Mikhaylov reported to his supervisors
that an Agency employee had been using an Agency vehicle for personal purposes.
At the conclusion of its investigation of Jaspal’s complaint, OPR recommended that
the matter be referred to management. OPR submitted an extensive report, including
2 Herrera-Niles retired at the end of August 2018, while the investigation into Jaspal’s complaint was proceeding.
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transcripts of the interviews, to the Disciplinary & Adverse Action Panel, a rotating panel
of independent managers that reviews disciplinary investigations, identifies possible
misconduct, and recommends appropriate punishments about corrective actions. The panel
submits its recommendations to the Deciding Official, who makes the ultimate
determination of whether misconduct occurred and what punishment should be imposed.
The disciplinary panel convened in this case concluded that Mikhaylov committed
conduct unbecoming a supervisor by directing Jaspal to make a purchase that was
prohibited by ICE policy and recommended that Mikhaylov be suspended for fourteen
days. The Deciding Official 3 rejected Mikhaylov’s claim that the proposed discipline was
reprisal for his whistleblowing activity and concluded that evidence supported the panel’s
determination that Mikhaylov engaged in conduct unbecoming a supervisor. The Deciding
Official, however, after considering Mikhaylov’s long career and “favorable work
performance,” concluded that the appropriate punishment was a two-day suspension rather
than the fourteen-day suspension recommended by the panel. J.A. 27.
Mikhaylov appealed his suspension to the Board. An administrative judge held a
hearing over the course of three days and heard testimony from sixteen witnesses. The
administrative judge concluded that three of the four disclosures relied upon by Mikhaylov
qualified as disclosures protected under the statute—his October 2018 report about Ohin’s
improper hiring practice; his December 2018 report to the Office of Special Counsel; and
3 Because one of the disclosures relied upon by Mikhaylov involved his then- supervisor Witte, she was removed as the Deciding Official and was replaced by a supervisor outside of Mikhaylov’s chain of command.
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his April 2019 report about the improper use of an official vehicle. The judge nonetheless
determined that Mikhaylov failed to prove that the protected disclosure contributed to the
Agency’s decision to take the personnel actions and that, in any event, the Agency had
established by clear and convincing evidence that it would have taken the actions even in
the absence of any disclosures.
The administrative judge rejected Mikhaylov’s assertion that the personnel actions
were retaliation for his protected disclosures. The judge noted that the investigation into
Mikhaylov was not initiated by any of his supervisors, but instead by OPR after the
complaint by Jaspal, Mikhaylov’s subordinate, and the judge credited Jaspal’s testimony
at the hearing that he had no knowledge of Mikhaylov’s whistleblowing. The
administrative judge likewise credited the testimony of the disciplinary panel member who
signed the notice of proposed suspension that she personally liked Mikhaylov and had no
knowledge of his whistleblowing and that the question of his whistleblowing was never
raised during the panel’s deliberations. Although the Deciding Official became aware of
Mikhaylov’s disclosures through Mikhaylov’s response to the panel’s recommendation,
the Deciding Official testified that the disclosures had no effect on his deliberations. The
administrative judge credited this testimony and observed that the Deciding Official
imposed a significantly lower punishment than the panel recommended, an action that
undermines any suggestion of retaliatory motive.
The administrative judge therefore sustained the two-day suspension and denied
Mikhaylov’s request for corrective action. Because the Board lacked a quorum of
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members, the administrative judge’s decision became the final decision of the Board and
is the subject of Mikhaylov’s petition for review now before this court.
III.
“When a whistleblower claims an agency took an impermissible personnel action,
the [Board] evaluates the case using a burden-shifting framework.” Flynn v. United States
Sec. & Exch. Comm’n, 877 F.3d 200, 204 (4th Cir. 2017). The employee must first
establish a prima facie case by demonstrating four facts: (1) the acting official has the authority to take, recommend, or approve any personnel action; (2) the aggrieved employee made a protected disclosure; (3) the acting official used his authority to take, or refuse to take, a personnel action against the aggrieved employee; and (4) the protected disclosure was a contributing factor in the agency’s personnel action.
Id. (cleaned up). The employee may use circumstantial evidence to prove that the protected
disclosure was a contributing factor, including evidence showing that “(A) the official
taking the personnel action knew of the disclosure or protected activity; and (B) the
personnel action occurred within a period of time such that a reasonable person could
conclude that the disclosure or protected activity was a contributing factor in the personnel
action.” 5 U.S.C.A. § 1221(e)(1). If the employee establishes that a protected disclosure
was a contributing factor, the agency must then prove “by clear and convincing evidence
that it would have taken the same personnel action in the absence of such disclosure.” 5
U.S.C. § 1221(e)(2).
Our review of the Board’s decisions is very limited. “We may only set aside agency
actions, findings, or conclusions if they are (1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (2) obtained without procedures required by law,
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rule, or regulation having been followed; or (3) unsupported by substantial evidence.”
Flynn, 877 F.3d at 204 (cleaned up).
A.
Mikhaylov first challenges the administrative judge’s determination that the
protected disclosures were not a contributing factor to the Agency’s actions. As noted
above, an employee may prove that a disclosure was a contributing factor through
circumstantial evidence showing that the official taking the personnel action knew of the
disclosure and that “the personnel action occurred within a period of time such that a
reasonable person could conclude that the disclosure or protected activity was a
contributing factor in the personnel action.” 5 U.S.C. § 1221(e)(1)(B). Mikhaylov contends
the disclosures here were contributing factors as a matter of law because the Deciding
Official learned about the disclosures during his review of the case file shortly before
imposing the suspension. 4 We disagree.
The statute does not provide that a protected disclosure automatically becomes a
contributing factor in every case where a personnel action is finalized shortly after
protected disclosures come to light; a disclosure is a contributing factor only when the
confluence of the official’s knowledge and the timing of the action reasonably suggests a
4 Although Mikhaylov discusses the knowledge of the members of disciplinary panel in his brief, he nonetheless makes it clear that his argument focuses on the actions of the Deciding Official. See Brief of Appellant at 9 (“Thomas Feeley . . ., the Agency deciding official, was aware of the disclosures prior to issuing the discipline.”); id. at 10 (“[T]he personnel action challenged was not the proposed suspension, but the actual two day suspension, to which Feeley was the decision maker.”).
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connection between the two. See 5 U.S.C. § 1221(e)(1). When disciplinary action is
initiated fast on the heels of an employee making a protected disclosure, a reasonable
person could easily conclude that the discipline was in retaliation for the disclosure. On
those paradigmatic facts, the protected disclosure must be viewed as a contributing factor.
See, e.g., Kewley v. Department of Health & Human Services, 153 F.3d 1357, 1363 (Fed.
Cir. 1998) (“If a whistleblower demonstrates both that the deciding official knew of the
disclosure and that the removal action was initiated within a reasonable time of that
disclosure, no further nexus need be shown, and no countervailing evidence may negate
the petitioner’s showing.”) (emphasis added).
The facts of this case, however, are very different from the paradigmatic
whistleblower case. Here, the disciplinary process was initiated before Mikhaylov made
the protected disclosures—the Agency began investigating after Jaspal made his complaint
in July 2018, and Mikhaylov made his first protected disclosure in October 2018. To be
sure, the Deciding Official did impose the two-day suspension shortly after he learned
through the case file that Mikhaylov had made protected disclosures. The Deciding
Official, however, came from an office outside of Mikhaylov’s chain of command and was
not connected in any way to the disclosures. Moreover, the Deciding Official testified that
he did not consider the disclosures when determining the appropriate sanction, and he
imposed a significantly less severe suspension than was recommended by the disciplinary
panel.
Contrary to Mikhaylov’s argument, these facts simply do not compel the conclusion
that the disclosures were contributing factors to the personnel action. See Madrid-Montoya 11 USCA4 Appeal: 21-1169 Doc: 56 Filed: 03/15/2023 Pg: 12 of 17
v. Garland, 52 F.4th 175, 179 (4th Cir. 2022) (“We review factual findings for substantial
evidence, which means we treat them as conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.”) (cleaned up). Instead, it was for the
administrative judge to determine whether Mikhaylov’s protected disclosures could
reasonably be viewed as contributing to the personnel action. The administrative judge,
finding the Deciding Official’s testimony to be credible and observing that the shorter
suspension imposed supported the official’s claim that the disclosure had no effect on his
decision, concluded that the disclosures did not contribute to the personnel action. That is
a reasonable view of the facts in the record, and our standard of review does not permit us
to reject it. See Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (“[W]hatever the meaning
of ‘substantial’ in other contexts, the threshold for such evidentiary sufficiency is not high.
Substantial evidence . . . is more than a mere scintilla. It means—and means only—such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”)
(cleaned up); Shinaberry v. Saul, 952 F.3d 113, 123 (4th Cir. 2020) (explaining that under
substantial-evidence review, “we do not undertake to reweigh conflicting evidence, make
credibility determinations, or substitute our judgment for that of the ALJ”) (cleaned up).
B.
Mikhaylov also challenges the administrative judge’s alternate determination that,
even if the protected disclosures did contribute to the personnel action, the Agency proved
by clear and convincing evidence that it would have taken the same action even without
the disclosures. See 5 U.S.C. § 1221(e)(2).
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When considering whether the Agency carried its burden, the administrative judge
applied the factors synthesized by the Federal Circuit in Carr v. Social Security
Administration:
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, 185 F.3d 1318, 1323 (Fed. Cir. 1999). The Carr factors have been adopted by several
circuits. See Marcato v. United States Agency for Int’l Dev., 11 F.4th 781, 783, 786-90
(D.C. Cir. 2021); Duggan v. Dep’t of Defense, 883 F.3d 842, 846 (9th Cir. 2018); Mottas
v. Dep’t of the Army, 720 F. App’x 912, 915-18 (10th Cir. 2017); King v. Dep’t of the Army,
570 F. App’x 863, 866 (11th Cir. 2014).
Although this court has not issued a published opinion addressing the issue,5 we
have utilized the Carr factors in an unpublished opinion. See Weber v. Dep’t of Veterans
Affs., 2022 WL 1797321, at *2 (4th Cir. June 2, 2022) (“The parties submit that we should
follow the [Board’s] lead in using the factors set forth in Carr . . . to determine whether
Appellee has demonstrated it would have otherwise terminated Appellant, and we agree.”).
We believe the Carr factors provide useful guidance for evaluating the agency’s claim that
5 Previously, appellate jurisdiction for federal whistleblower claims lay exclusively with the Federal Circuit, unless the case was a “‘mixed case’. . . alleging both a prohibited personnel action and discrimination.” Flynn v. United States Sec. & Exch. Comm’n, 877 F.3d 200, 203 (4th Cir. 2017). In 2012, Congress gave the employee the option of seeking review by the Federal Circuit or the local Court of Appeals. Because we have (relatively) recently begun handling these cases, issues that are “well established in the Federal Circuit’s case law” are often “matter[s] of first impression” here. Id.
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it would have taken the personnel action regardless of the disclosures, and we therefore
apply them in this case.
The first Carr factor is the strength of the agency’s case supporting the personnel
action. The administrative judge concluded that the record evidence clearly and
convincingly established that Mikhaylov engaged in conduct unbecoming a supervisor. See
J.A. 758 (“[T]he voluminous evidentiary record more than establishes the charge by clear
and convincing evidence.”). When making this determination, the judge pointed to the
thorough investigation and report prepared by OPR and to Jaspal’s testimony that he
understood Mikhaylov to be directing him to purchase holsters and magazines for
personally-owned weapons despite Mikhaylov’s acknowledgement that the purchase might
be inappropriate and Jaspal’s belief that he was removed from his position because he
refused to make the inappropriate purchase.
Mikhaylov’s argument on appeal amounts to little more than disagreement with the
administrative judge’s view of the case. Mikhaylov insists that he never ordered Jaspal to
purchase accessories to be issued to agents using personally-owned weapons on the job.
Instead, he claims the holsters and magazines were intended for use at the firing range,
where they would be loaned out to agents who came for training but neglected to bring the
required accessories for their personally-owned weapons. The record does contain some
support for that theory, in the form of Mikhaylov’s own testimony before the Board.
However, the record also contains voluminous evidence to the contrary, including the OPR
report and exhibits; Jaspal’s testimony and the emails he sent to agency ethics and legal
departments asking about the propriety of purchasing accessories for personally-owned 14 USCA4 Appeal: 21-1169 Doc: 56 Filed: 03/15/2023 Pg: 15 of 17
weapons; and the testimony of Phillip Meadows, who replaced Jaspal as senior firearms
instructor and was the person who told Jaspal about his demotion. The administrative judge
was persuaded by that evidence, not Mikhaylov’s testimony, and the standard of review
does not permit us to second-guess the Board on this point. See Madrid-Montoya, 52 F.4th
at 179-80 (Under substantial-evidence review, “we cannot substitute our judgment for that
of the agency’s by reweighing the evidence and determining which of the competing views
is more compelling.”) (cleaned up).
The second Carr factor requires consideration of “the existence and strength of any
motive to retaliate on the part of the agency officials who were involved in the decision.”
Carr, 185 F.3d at 1323. As the administrative judge observed, it was Jaspal’s complaint
that started the disciplinary ball rolling, not any action by Mikhaylov’s supervisors. The
disciplinary panel was composed of independent managers who were not part of
Mikhaylov’s chain of command and had no involvement in the actions outlined in
Mikhaylov’s protected disclosures. The disciplinary panel member who signed the
suspension proposal testified that Mikhaylov’s disclosures were not discussed during the
panel deliberations. In addition, as previously discussed, the Deciding Official was also
outside Mikhaylov’s chain of command with no involvement in the protected disclosures,
and the Deciding Official testified that he gave no consideration to the protected disclosures
when reviewing Mikhaylov’s case and deciding the appropriate punishment. When
concluding that the officials involved in the personnel action had little reason to retaliate
against Mikhaylov, the administrative judge explicitly credited the testimony of the
disciplinary panel and the Deciding Official. The administrative judge also noted that the 15 USCA4 Appeal: 21-1169 Doc: 56 Filed: 03/15/2023 Pg: 16 of 17
“greatly mitigated penalty [imposed by the Deciding Official] suggests there was no
retaliatory motive.” J.A. 758. Again, our standard of review does not permit us to reject the
administrative judge’s finding, which rested on significant evidence in the record and the
judge’s own determinations of witness credibility.
The third Carr factor requires consideration of “any evidence that the agency takes
similar actions against employees who are not whistleblowers but who are otherwise
similarly situated.” Carr, 185 F.3d at 1323. Mikhaylov contends this factor shows
retaliation, because Jaspal also filed a complaint against Herrera-Niles, Mikhaylov’s then-
supervisor and the person who requested the holsters and magazines, but she was not
disciplined by the agency. The administrative judge concluded that the failure to discipline
Herrera-Niles did not show retaliation because Herrera-Niles retired in August 2018,
shortly after Jaspal’s complaint, and the agency has a policy of not pursuing disciplinary
actions after an employee retires.
As Mikhaylov points out, sometime in the fall of 2018, while the investigation was
still ongoing, Herrera-Niles was rehired by the Agency for the office in San Antonio. She
was rehired under the terms of a global settlement agreement resolving then-pending
litigation. The record contains no details on the settlement, including whether the settled
action was in any way connected to Mikhaylov. While that information might perhaps
undermine the Agency’s explanation for its failure to take action against Herrera-Niles, it
is not up to this court to figure out how those pieces of information interact. The
administrative judge heard all of the evidence, weighed it, and concluded that the Agency’s
different treatment of Herrera-Niles did not show that the Agency was retaliating against 16 USCA4 Appeal: 21-1169 Doc: 56 Filed: 03/15/2023 Pg: 17 of 17
Mikhaylov. Our standard of review requires us to accept the administrative judge’s view
of the issue. See Madrid-Montoya, 52 F.4th at 179–80 (“[I]f the record plausibly could
support two results: the one the agency chose and the one the petitioner advances, we
must defer to the agency.”) (cleaned up).
Because the administrative judge committed no legal error when applying the Carr
factors and his factual findings are supported by substantial evidence, we reject
Mikhaylov’s challenge to the administrative judge’s conclusion that the Agency carried its
burden of proving that it would have taken the same disciplinary action in the absence of
the disclosures.
IV.
After conducting a hearing and considering the evidence, the administrative judge
denied the corrective action sought by Mikhaylov, concluding that Mikhaylov’s protected
disclosures were not contributing factors to the discipline imposed and, alternatively, that
the Agency proved by clear and convincing evidence that it would have taken the action
even in the absence of the disclosures. Because the administrative judge committed no legal
error and his factual findings are supported by substantial evidence, we deny Mikhaylov’s
petition for review.
PETITION FOR REVIEW DENIED