Javier Soto v. Department of Veterans Affairs

                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                       

                            Docket No. AT-1221-15-0157-W-1

                                       Javier Soto,
                                        Appellant,
                                             v.
                           Department of Veterans Affairs,
                                         Agency.
                                       April 20, 2022

           Joyce E. Kitchens, Esquire, Atlanta, Georgia, for the appellant.

           Kristin Langwell, Esquire, St. Petersburg, Florida, for the agency.


                                         BEFORE

                              Raymond A. Limon, Vice Chair
                                Tristan L. Leavitt, Member


                                 OPINION AND ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     denied his request for corrective action under 

(e). For the reasons
     set forth below, we GRANT the appellant’s petition and REMAND this matter for
     further adjudication consistent with this Opinion and Order.

                                     BACKGROUND
¶2        The appellant, a reemployed annuitant, occupied the GS-0996-12 Ratings
     Veterans Service Representative position with the agency’s Vete rans Service
     Center in Orlando, Florida. Initial Appeal File (IAF), Tab 5 at 127. By notice
     dated June 30, 2014, the deciding official, who was the Director of the
     St. Petersburg Regional Office, separated the appellant from his position and the
                                                                                         2

     Federal service, stating without elaboration that his “services [were] no longer
     required.” 

. The following day, the appellant sought corrective action
     from the Office of Special Counsel (OSC). IAF, Tab 7 at 10-18. He alleged that
     his separation was in reprisal for protected disclosures contained in two Quality
     Review Team (QRT) Studies, and for various grievances and complaints he filed
     in his capacity as Executive Vice President of the American Federation of
     Government Employees (AFGE) Local 1594. IAF, Tabs 28-42.
¶3           While the OSC complaint was pending, the deciding official prepared a
     memorandum, dated September 22, 2014, setting forth her reasons for separating
     the appellant. IAF, Tab 4 at 55-57. Her stated reasons were that the appellant
     had engaged in misconduct involving his attendance and work schedule at an
     April 2014 equal employment opportunity training and a May 2014 training with
     AFGE, and had improperly claimed case credit by making duplicate entries in the
     agency’s Automated Standardized Performance Elements Nationwide database in
     June 2014. 

 The deciding official explained that, during this 3-month period,
     the appellant was dishonest and misled management, refused to follow
     instructions, and demonstrated a lack of integrity. 

. She further stated—
     apparently, unbeknownst to her, incorrectly—that removal was the only
     disciplinary option available, because, as a reemployed annuitant, the appellant
     was “excluded from the legal authority to admonish, reprimand or suspend.” 

¶4           By letter dated September 30, 2014, OSC informed the appellant that it had
     completed its investigation, and advised him of his right to file an individual right
     of action (IRA) appeal with the Board. IAF, Tab 1 at 14-15. The appellant filed
     a timely IRA appeal on November 18, 2014. IAF, Tab 1. Following a hearing,
     the administrative judge issued an initial decision denying the appellant’s request
     for corrective action.    IAF, Tab 75, Initial Decision (ID).      As a preliminary
     matter, he found that the appellant had established Board jurisdiction concerning
     his claims that the agency separated him in reprisal for protected disclosures
     under     

(b)(8)    and   protected    activity   under    5 U.S.C.
                                                                                             3

     § 2302(b)(9)(A)(i) and (B). 1 ID at 3-6. Turning to the merits, the administrative
     judge found that, assuming the appellant’s comments in the QRT Studies were
     protected disclosures, he failed to show that they were a contributing factor in his
     separation. ID at 8-12. The administrative judge further found that the appellant
     failed to prove that he participated in activity protected under 

(b)(9)(A)(i), because the grievances he had filed on his own behalf did not
     include allegations of whistleblowing reprisal under 

(b)(8). ID
     at 12-14. However, the administrative judge found that some of the appellant’s
     representational activities on behalf of other employees were both protected under
     

(b)(9)(B) and a contributing factor in his separation. ID at 14-22.
     After conducting an analysis of the factors identified in Carr v. Social Security
     Administration, 

, 1323 (Fed. Cir. 1999), the administrative judge
     determined that the agency had met its burden of proving by clear and convincing
     evidence that it would have separated the appellant in the absence of his protected
     activity. ID at 22-51.
¶5         This petition for review followed. Petition for Review (PFR) File, Tab 1.
     On review, the appellant does not contest the findings below concerning his
     claims under 

(b)(8) and (b)(9)(A)(i), but he contends that the
     administrative judge should have found that he engaged in two additional
     protected activities under 

(b)(9)(B).         

.    He further
     argues that, contrary to the findings in the initial decision, the agency failed to
     show by clear and convincing evidence that it would have separated him in the


     1
       The Board has long held that reemployed annuitants enjoy the protections of 

, unless explicitly excluded from coverage by 

(a)(2)(B)(i) or (ii).
     Acting Special Counsel v. U.S. Customs Service, 

, 346-47 (1986). We
     agree with the administrative judge that there is nothing in the statutory language of the
     Whistleblower Protection Enhancement Act of 2012, 

 Stat.
     1465, to suggest that the Board’s jurisdiction over IRA appeals would not extend to
     reemployed annuitants claiming reprisal for protected activity under 

(b)(9)(A)(i) or (B). ID at 5-6.
                                                                                            4

     absence of his protected activity.        Id. at 4-31.     He also provides medical
     documentation concerning a witness, the President of AFGE Local 1594, on the
     theory that her health condition explains behavior upon which the administrative
     judge relied in making an adverse credibility determination against her. Id. at 16,
     36-38; ID at 41-42. The agency has filed a response, to which the appellant has
     replied. PFR File, Tabs 3-4.

                                         ANALYSIS
     The appellant failed to show that his new claims that he engaged in additional
     activity are protected under 

(b)(9)(B).
¶6         Under 

(b)(9)(B), it is a prohibited personnel practice to take
     a personnel action against an employee “because of [the employee] testifying for
     or otherwise lawfully assisting any individual” in “the exercise of any appeal,
     complaint, or grievance right granted by any law, rule, or regulation[.]” 

(b)(9)(A)-(B).     In deciding the merits of a claim that an agency took a
     personnel action in violation of 

(b)(9)(B), the Board will analyze
     the claim under the burden-shifting framework set forth at 

(e).
     Alarid v. Department of the Army, 

, ¶ 13 (2015).               First, the
     Board will determine whether the appellant has established by preponderant
     evidence 2   that   he   was   involved   in   protected    activity   under    

(b)(9)(B). Alarid, 

, ¶ 13. Next, the Board will determine
     whether the appellant’s participation in the protected activity was a contr ibuting
     factor in the challenged personnel action at issue. 

 One way of proving that an
     appellant’s protected activity was a contributing factor in a personnel action is the
     “knowledge/timing” test, which is satisfied by showing that the responsible
     agency official knew of the protected activity and took the personnel action


     2
       Preponderant evidence is the degree of relevant evidence that a reasonable person,
     considering the record as a whole, would accept as sufficient to find that a contested
     fact is more likely to be true than untrue. 

(q).
                                                                                          5

     within a period of time such that a reasonable person could conclude that the
     protected activity was a contributing factor in the action.         Id.; see 

(e)(1).   If the appellant makes both of these showings by preponderant
     evidence, the burden of persuasion shifts to the agency to prove by clear and
     convincing evidence that it would have taken the same action in the absence of
     the appellant’s protected activity. 3 Alarid, 

, ¶ 14.
¶7         An appellant can establish that he engaged in protected activity under
     

(b)(9)(B) by proving that he testified or otherwise lawfully
     assisted another employee in “any appeal, complaint, or grievan ce right granted
     by any law, rule, or regulation.” 

(b)(9)(A); Alarid, 

, ¶ 13. The Board has interpreted the term “appeal, complaint, or grievance”
     to mean an initial step toward taking legal action against the agency for a
     perceived violation of employment rights. See Graves v. Department of Veterans
     Affairs, 

, ¶¶ 18-19 (2016); Linder v. Department of Justice,
     

, ¶¶ 9-11 (2014). Performing union-related duties in support of
     another employee’s appeal, complaint, or grievance may constitute protected
     activity under 

(b)(9)(B). See Carney v. Department of Veterans
     Affairs, 

, ¶ 6 (2014) (finding that representing an agency
     employee during an informal grievance meeting falls under the protective
     umbrella of the statute).
¶8         The administrative judge found below that the following activities were
     both protected under 

(b)(9)(B) and a contributing factor in the
     appellant’s separation:     (1) a March 2014 discussion with the deciding official

     3
       Clear and convincing evidence is that measure or degree of proof that produces in the
     mind of a trier of fact a firm belief as to the allegations sou ght to be established.
     

(e). Section 1221(e)(2) does not explicitly state that the clear and
     convincing evidence test applies to claims of retaliation for protected activity under
     

(b)(9)(B), because it only addresses disclosures, which are covered by
     subsection (b)(8), but the Board has consistently adopted that interpretation. See
     Alarid, 

, ¶ 14; 

(b).
                                                                                        6

     regarding the venue of a grievance meeting; (2) a May 20, 2014 third-step
     grievance filed against an official in the agency’s West Palm Beach location,
     alleging improper management interference with union representation of an
     unnamed bargaining-unit member regarding a performance improvement plan
     (PIP); (3) a May 23, 2014 third-step grievance filed against Human Resources
     Management (HRM), concerning a dispute over requests for information (RFIs)
     regarding the PIPs of two bargaining-unit members; (4) a June 10, 2014 third-step
     grievance alleging that management failed to include AFGE in an unnamed
     bargaining-unit member’s PIP meeting; and (5) a June 10, 2014 third-step
     grievance against the Chief of HRM, alleging continued delay in responding to
     RFIs concerning the PIPs for the two bargaining-unit members. ID at 14-22; IAF,
     Tab 40 at 32-33, Tab 41 at 10-11, 43-44, 55-56, Tab 51 at 14-18. On review, the
     appellant contends that the administrative judge should have found that the
     following activities also were protected:     (1) an April 16, 2014 reply to the
     proposed admonishment of a bargaining‑unit member; and (2) a May 23, 2014
     memorandum to the deciding official objecting to HRM’s response to a n RFI
     concerning the PIPs of the two bargaining-unit members.      IAF, Tab 40 at 32-33;
     ID at 16-21; IAF, Tab 39 at 64-72, Tab 40 at 4-13, Tab 41 at 66-67.
¶9        Regarding the April 16, 2014 reply to the proposed admonishment of
     another bargaining-unit member, the administrative judge correctly found that the
     appellant’s activity was not protected, because there is no law, rule, or regulation
     granting a right to reply to a proposed admonishment. ID at 16-17. Thus, in
     making that reply, the appellant did not assist another employee in an appeal,
     complaint, or grievance right granted by law, rule, or regulation.         

(b)(9)(B); see Graves, 

, ¶¶ 3, 14 (finding that the
     appellant’s testimony before an agency investigative board in support of a
     coworker was not protected under         

(b)(9)(B) because the
     investigation did not constitute the exercise of an appeal, complaint, or grievance
     right). On review, the appellant argues that the administrative judge should have
                                                                                         7

      considered that a proposed admonishment may be grieved under the applicable
      collective bargaining agreement. PFR File, Tab 1 at 32. However, assuming the
      appellant is correct that there was a law, rule, or regulation granting the employee
      the right to grieve her proposed admonishment under the collective bargaining
      agreement, the record does not show that the appellant in fact assisted her in
      exercising that right.
¶10         As to the May 23, 2014 memorandum objecting to HRM’s response to the
      union’s RFI, the administrative judge found that 

(b)(9)(B)
      does not cover an RFI unless it was filed in direct support of a grievance or unfair
      labor practice complaint. ID at 18-21. The appellant argues that in so finding,
      the administrative judge read the statute too narrowly. PFR File , Tab 1 at 32. We
      disagree.   As noted previously, for activity to be protecte d under 

(b)(9)(B), an appellant must prove that he lawfully assisted another
      employee in “any appeal, complaint, or grievance right granted by any law, rule,
      or regulation,” meaning that he took an initial step toward taking legal action
      against the agency for a perceived violation of employment rights.         

(b)(9)(B); Graves, 

, ¶ 18. Not every objection, gripe, or
      protest about a workplace matter constitutes the sort of complaint lodged in a
      formal adjudicatory process that is protected under 

(b)(9)(B). See
      Owen v. Department of the Air Force, 

, 624, 627-28 (1994)
      (finding that, although the appellant referred to his report to the Occupational
      Safety & Health Administration about his exposure to fumes as a “complaint,” it
      was merely an informal “complaint” as the term is used to denote gripes or
      objections, rather than a complaint lodged in a formal adjudicative process, and
      thus it was not covered by 

(b)(9)(B)); see also Von Kelsch v.
      Department of Labor, 

, 505-06, 508 (1993) (concluding that
      filing a claim for compensation under the Federal Employees’ Compensation Act
      was not the “exercise of any appeal, complaint, or grievance right” within the
      meaning of section 2302(b)(9)(B)), overruled on other grounds by Thomas v.
                                                                                        8

      Department of the Treasury, 

, 236 n.9 (1998), overruled by
      Ganski v. Department of the Interior, 

 (2000).       The appellant’s
      objection to HRM’s RFI response was part of the union’s effort to obtain
      information regarding the PIPs of two bargaining-unit members, not a complaint
      lodged in a formal adjudicatory process. Conversely, the administrative judge
      correctly found protected the appellant’s grievance, which he filed on the same
      date as the memorandum and which concerned the same subject matter. See ID
      at 17-18; IAF, Tab 40 at 32-33, Tab 40 at 66-67. Thus, the administrative judge
      properly determined that the appellant failed to establish that his May 23, 2014
      memorandum      separately   constituted   protected    activity   under   

(b)(9)(B).

      The administrative judge should conduct a new Carr factors analysis on remand.
¶11        We next turn to the question of whether the agency proved by clear and
      convincing evidence that it would have separated the appellant absent his
      protected activity.   In determining whether an agency has met its burden, the
      Board will consider all relevant factors, including the following: (1) the strength
      of the agency’s evidence in support of its action; (2) the existence 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 do not engage in such protected activity, but who are otherwise
      similarly situated. Alarid, 

, ¶ 14; see Carr, 

.
      The Board must consider all the pertinent evidence in the record, and must not
      exclude or ignore countervailing evidence by only looking at the evidence that
      supports the agency’s position. Alarid, 

, ¶ 14; see Whitmore v.
      Department of Labor, 

, 1367-70 (Fed. Cir. 2012).
¶12        This appeal presents an issue of first impression in that, as a reemployed
      annuitant, the appellant served at the will of the agency, and was not entitled to
      the procedural protections afforded under chapter 75 of title 5.      See 

(b)(1); Garza v. Department of the Navy, 

, ¶ 7 (2012).
                                                                                              9

      The administrative judge found that, in light of the appellant’s at-will status, the
      analysis of the first Carr factor should be modified as follows:
            The critical inquiry for this Carr factor is the mindset of the agency
            official who separated the employee at the time the employee was
            separated. In this analysis, even if, upon subsequent investigation,
            the reasons the official separated a reemployed annuitant turn out to
            be unsupported, the agency may still prevail on this Carr factor if it
            can demonstrate by clear and convincing evidence that, at the time
            he or she took the action, the official’s belief in the reasons
            warranting the employee’s separation were objec tively both
            reasonable and supportable.
      ID at 38-39.    On review, the appellant contends that the administrative judge
      erred in imposing the modified standard, and that the lack of due process
      protections for reemployed annuitants does not affect the agency’s burden of
      persuasion under the clear and convincing test. PFR File, Tab 1 at 30-31.
¶13         For the following reasons, we decline to adopt the administrative judge’s
      analysis. First, it is not correct to state that an agency may “prevail” on the first
      Carr factor, or that it must establish the strength of its reasons by any particular
      quantum of evidence.       The Board does not view the Carr factors as discrete
      elements, each of which the agency must prove by clear and convincing evidence,
      but rather weighs these factors together to determine whether the evidence is
      clear and convincing as a whole. 4           Alarid, 

, ¶ 14; Lu v.

      4
        For the same reason, the appellant is mistaken in his impression that the agency must
      prove the elements of its charges by clear and convincing evidence. PFR F ile, Tab 1
      at 11. In a chapter 75 adverse action appeal involving an affirmative defense of
      whistleblowing reprisal, proof of the agency’s charges may lend support to a finding
      that the agency proved by clear and convincing evidence that it would have taken the
      same action in the absence of the appellant’s protected disclosures or protected activity.
      See Shibuya v. Department of Agriculture, 

, ¶ 37 (2013) (finding that
      the administrative judge should reweigh the evidence on remand in light of the full
      Board’s finding that the agency proved both of its charges). This does not imply,
      however, that proof of the alleged misconduct is either necessary or sufficient to satisfy
      the agency’s overall burden, although it is relevant evidence that must be considered.
      

 (reminding the administrative judge that on remand “all the relevant evidence as a
      whole” should be considered).
                                                                                       10

Department of Homeland Security, 

, ¶ 7 (2015). Furthermore,
we agree with the appellant that the agency’s burden of proof is not diminished
by his at-will status.    While it is true the appellant could have been lawfully
separated with relative ease, it is not sufficient for the agency to establish that its
action was justifiable; rather, the agency must show b y clear and convincing
evidence that it would have taken the same action in the absence of his protected
activity.   See 

(e)(2); Alarid, 

, ¶ 14; cf.
Whitmore, 

 (stating that “[t]he whistleblower statute is clear that
even where the charges have been sustained and the agency’s chosen penalty is
deemed reasonable, the agency must still prove by clear and convincing evidence
that it would have imposed the exact same penalty in the absence of the protected
disclosures”). To that end, the agency has offered an explanation that relies on
specific allegations of misconduct, and the strength of the evidence supporting
those allegations does not turn on the procedural protections to which the
appellant was entitled.         Cf. Chavez v. Department of Veterans Affairs,

, ¶¶ 30-31 (2013) (assessing the strength of the misconduct
allegations underlying the appellant’s probationary termination, notwithstanding
the limited procedural protections afforded to probationary employees).               We
therefore find no basis for departing from the traditional analysis. 5



5
  In considering the first Carr factor, the Board assesses the evidence as it stood at the
time of the action, and in light of what the agency officials knew at the time they acted.
Yunus v. Department of Veterans Affairs, 

, 1372 (Fed. Cir. 2001). We
agree with the appellant, however, that to focus exclusively on the actual beliefs held
by the agency officials would be inconsistent with our obligation to consider all
pertinent evidence. PFR File, Tab 1 at 31; see Whitmore, 

. For
example, if an agency official fails to investigate a charge sufficiently before bringing
an action, such a failure might indicate an improper motive.              Social Security
Administration v. Carr, 

, 335 (1998), aff’d, 

 (Fed. Cir.
1999). If, on the other hand, relevant facts are developed on appeal to the Board that
the agency had no prior reason to know, we would find that such facts do not undercut
the agency’s otherwise sufficiently clear and convincing evide nce that, at the time of
                                                                                          11

¶14         Turning to the second Carr factor, we agree with the administrative judge
      that the appellant’s protected activities, taken in isolation, would not have created
      a strong motive to retaliate on the part of either the deciding official, who issued
      the decision to separate the appellant, or the HRM official who assisted the
      deciding official in taking that action.      ID at 48-49.    However, the Federal
      Circuit, the only circuit to have addressed this issue, has cautioned us against
      taking too narrow a view of the second Carr factor. 6         In Whitmore, 

, the court stated “[t]hose responsible for the agency’s performance
      overall may well be motivated to retaliate even if they are not directly implicated
      by the disclosures, and even if they do not know the whistleblower personally, as
      the criticism reflects on them in their capacities as managers and employees.”
      The court in Whitmore determined that, when a whistleblower makes highly
      critical accusations of an agency’s conduct that draws the attention of high-level
      agency managers, the fact that an agency official is “outside the whistleblower’s
      chain of command, not directly involved in alleged retaliatory actions, and not
      personally named in the whistleblower’s disclosure is insufficient to remove the
      possibility of a retaliatory motive or retaliatory influence,” and that the Board
      should consider any motive to retaliate on the part of the agency official who
      ordered the action, as well as that of any officials who influenced the action. 

. In Miller v. Department of Justice, 

, 1261-62 (Fed. Cir.
      2016), the court also instructed the Board not to limit its consideration of a

      the action, its decision would have been the same in the absence of the protected
      activity. 

      6
        Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
      for the Federal Circuit on this issue. However, as a result of changes initiated by the
      Whistleblower Protection Enhancement Act of 2012 (

 Stat
      1465), extended for 3 years (All Circuits Review Extension Act, 

 Stat. 1894), and eventually made permanent (All Circuits Review Act, 

 Stat. 1510), we must consider this issue with the view that the
      appellant may seek review of this decision before any appropriate court of appeal. See
      

(b)(1)(B).
                                                                                            12

      motive to retaliate to the appellant’s supervisors, but to examine whether a
      retaliatory motive could be imputed more broadly.           Similarly, in Robinson v.
      Department of Veterans Affairs, 

, 1019 (Fed. Cir. 2019), the court
      found that, although the deciding official did not have a personal motive to
      retaliate against the appellant for contradicting an agency Under Secretary, the
      Board’s administrative judge erred by failing to consider whether he had a
      “professional retaliatory motive” against the appellant because his disclosures
      “implicated the capabilities, performance, and veracity of [agency] managers and
      employees, and implied that the [agency] deceived [a] Senate Committee.”
¶15         In sum, the Federal Circuit’s decisions instruct that, in assessing Carr factor
      two, the existence and strength of any motive to retaliate on the part of the agency
      officials who were involved in the decision, the Board and its administrative
      judges should avoid an overly restrictive analysis and should fully consider
      whether a motive to retaliate can be imputed to the agency officials involved and
      whether those officials possessed a “professional retaliatory motive,” because the
      whistleblower’s disclosures implicated agency officials and employees in general.
      In conducting this analysis, all of the record evidence relevant to whether there
      was a motive to retaliate and the extent of that motive must be consid ered. 7 See
      Whitmore, 

 (“[e]vidence only clearly and convincingly supports a
      conclusion when it does so in the aggregate considering all the pertinent evidence
      in the record, and despite the evidence that fairly detracts from that conclusion”).
¶16         In the instant case, we find that the administrative judge took to o narrow an
      approach in his analysis of Carr factor two and failed to address all of the
      relevant record evidence. In particular, the appellant’s protected activities take

      7
        In Robinson, for example, the court noted that the administrative judge failed to
      discuss whether the deciding official had a “professional motive to retaliate,” but
      ultimately decided that Carr factor two slightly favored the agency based on its
      conclusion that the administrative judge’s crediting of the deciding official’s testimony
      that he lacked a motive to retaliate was “not unreasonable.” 

.
                                                                                      13

      on greater significance against the background of the tense relationship between
      the union and agency management in the Orlando office, which several witnesses
      described as “dysfunctional.”     Hearing Transcript (HT) (Jan. 13, 2016) at 42
      (testimony of the deciding official); HT (Jan. 14, 2016) at 261 (testimony of the
      third level supervisor), 409 (testimony of the union president). In addition, in a
      March 20, 2014 email from the deciding official to the appellant concerning the
      proposed location of two third-step grievance meetings, the deciding official
      stated: “AFGE’s unwillingness to cooperate on this issue is duly noted. I had
      hoped this didn’t have to be such an adversarial relationship.” IAF, Tab 51 at 14.
      Furthermore, the appellant’s third-level supervisor had complained to the
      deciding official that the union was burdening the Orlando office by filing a large
      volume of complaints and RFIs that took up most of management’s time. HT
      (Jan. 14, 2016) at 262, 264-66 (testimony of the third level supervisor).      The
      administrative judge found that this evidence was not relevant because the
      deciding official and Chief of HRM did not view the activity as coming from the
      appellant in particular. ID at 46. However, it stands to reason that management’s
      frustration with the volume of union activity could extend, to at least some
      degree, to the appellant’s protected activities, which, though only a small portion
      of the whole, could nonetheless have been perceived as adding to the overall
      burden.   This evidence of labor-management tension in the workplace may or
      may not support a conclusion that the second Carr factor weighs against the
      agency.   However, by rejecting as irrelevant evidence of labor -management
      tension in the appellant’s working environment, the administrat ive judge failed to
      consider all of the evidence potentially pertaining to motive.
¶17        Regarding the third Carr factor, we find that, contrary to the initial
      decision, the record does not definitively establish that the agency has taken
      separation actions against reemployed annuitants who engaged in misconduct and
      did not engage in protected activity under 

(b)(9)(B). ID at 51. At
      the hearing, the HRM Chief testified that she had been involved in the separation
                                                                                          14

      of 5 to 10 other reemployed annuitants, but she did not identify what positions
      those employees occupied or what conduct issues they may h ave had.                HT
      (Jan. 29, 2016) at 84 (testimony of the HRM Chief). She further testified tha t, to
      her knowledge, none of them was “vice president to the union.” 

 However,
      protected activity under 

(b)(9)(B) is not solely the province of
      union vice presidents. Thus, while we agree with the administrative judge that
      the record contains no evidence that the agency does not separate reemployed
      annuitants who committed misconduct and did not engage in protected activity
      under 

(b)(9)(B), 8 ID at 51, the record is incomplete regarding
      whether the agency does, in fact, take action against individuals w ho committed
      misconduct    and    did not   engage    in   protected   activity   under    

(b)(9)(B).
¶18         As the appellant correctly observes, it is the agency that bears the burden of
      proving that it would have taken the same action in the absence of his protecte d
      activity. PFR File, Tab 1 at 28; see Alarid, 

, ¶ 14. While the
      agency does not have an affirmative burden to produce evidence concerning each
      and every Carr factor, the Federal Circuit has held that “the absence of any
      evidence relating to Carr factor three can effectively remove that factor from the
      analysis,” but that the failure to produce such evidence if it exists “may be at the
      agency’s peril,” and “may well cause the agency to fail to prove its case overall.”
      Whitmore, 

. Moreover, because it is the agency’s burden of


      8
        The appellant identified another reemployed annuit ant, also a GS-12 RSVR, who
      did not engage in whistleblowing or union activity, and who was placed on “second
      signature” as a result of performance problems relating to his failure to follow policy
      and procedures in rating claims. HT (Jan. 29, 2016) at 248‑50 (testimony of the
      appellant). However, while the third Carr factor requires that the Board take into
      account different kinds and degrees of conduct between otherwise similarly situated
      employees, Whitmore 

, we find that a meaningful comparison
      cannot be drawn between the other reemployed annuitant’s perform ance issues and the
      appellant’s conduct.
                                                                                            15

      proof, when the agency fails to introduce relevant comparator evidence, the third
      Carr factor cannot weigh in favor of the agency.           Smith v. General Services
      Administration, 

, 1367 (Fed. Cir. 2019); Siler v. Environmental
      Protection Agency, 

, 1299 (Fed. Cir. 2018). Here, the agency has
      introduced some comparator evidence, but its evidence is insufficient to show that
      the proffered comparators are in fact appropriate comparators.               Under the
      circumstances, we find that the agency has failed to introduce complete, fully
      explained comparator evidence, the Federal Circuit’s admonitions in Smith and
      Siler apply, and Carr factor 3 does not weigh in the agency’s favor. 9
¶19         In light of our findings above, we conclude that it is necessary to conduct a
      new analysis of the Carr factors. We further find that the administrative judge is
      in the best position to do so, having heard the live testimony.         See Shibuya v.
      Department of Agriculture, 

, ¶ 37 (2013). Accordingly, we
      remand the appeal for a new finding as to whether the agency proved by clear and
      convincing evidence that it would have separated the appellant in the absence of
      his protected activity. The administrative judge may adopt his previous factual
      findings and credibility determinations as appropriate. 10




      9
        We recognize that there are different reasons why a record in a whistleblowing case
      might not contain relevant comparator evidence. Here, as in Smith and Siler, the reason
      is that the agency failed to make a sufficient proffer of such evidence. In another case,
      the agency may present persuasive evidence that no appropriate comparators exist.
      Until we are presented with that fact pattern, however, we need not decide that case.
      10
        On remand, the administrative judge should address documentary evidence indicating
      that the agency issued a directive that Automated Standardized Performance Elements
      Nationwide records were not to be used in determining employee performance during
      the period from May through August 2014. IAF, Tab 34 at 16, ¶ 9. The administrative
      judge also may consider whether and to what extent the medical evidence concer ning
      the union president might lead him to revise his assessment of her credibility.
                                                                        16

                                          ORDER
¶20        We remand the appeal to the Atlanta Regional Office for further
      adjudication consistent with this Opinion and Order.



      FOR THE BOARD:


      /s/
      Jennifer Everling
      Acting Clerk of the Board
      Washington, D.C.