NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`HARROLL INGRAM,
`Petitioner
`
`v.
`
`DEPARTMENT OF THE ARMY,
`Respondent
`______________________
`
`2019-1249
`______________________
`
`Petition for review of the Merit Systems Protection
`Board in No. AT-1221-18-0264-W-1.
`______________________
`
`Decided: June 19, 2019
`______________________
`
`HARROLL INGRAM, Sanford, FL, pro se.
`
`
` BORISLAV KUSHNIR, Commercial Litigation Branch,
`Civil Division, United States Department of Justice, Wash-
`ington, DC, for respondent. Also represented by JOSEPH H.
`HUNT, LISA LEFANTE DONAHUE, ROBERT EDWARD
`KIRSCHMAN, JR.
` ______________________
`
`Before LOURIE, MOORE, and TARANTO, Circuit Judges.
`
`

`

`2
`
`INGRAM v. ARMY
`
`PER CURIAM.
`Harrol Ingram appeals the final decision of the Merit
`Systems Protection Board (“Board”) denying Mr. Ingram’s
`request for corrective action related to a letter of reprimand
`(“LOR”) the Army issued to him. For the following reasons,
`we affirm.
`
`BACKGROUND
`Mr. Ingram was employed as a computer engineer at
`the Army’s Program Executive Office Simulation, Training
`and Instrumentation (“PEO STRI”). On May 24, 2017, Mr.
`Ingram sent an email from his work email account to all
`PEO STRI bargaining unit employees to gauge interest in
`forming a union. Shortly thereafter, the Department of the
`Army (“Army”) suspended Mr. Ingram’s network access to
`determine whether such a message could appropriately be
`sent from an employee’s work email address during duty
`time. His network access was restored later that day.
`About the same time his access was suspended, Mr. Ingram
`left for a week of planned leave and did not sign on to the
`network again until May 31, 2017. On June 13, 2017, Mr.
`Ingram sent a second email to all PEO STRI employees,
`this time from his personal email account. This email
`stated that, in response to his initial email, PEO STRI lead-
`ers had disconnected him from the network, leaving him
`unable to perform his work duties or reconnect until May
`31.
`Mr. Ingram’s first level supervisor, Vanette Johnson,
`issued a clarification memorandum to him on June 15,
`2017, describing the one hour and thirty-five minute, tem-
`porary suspension of Mr. Ingram’s email account and clar-
`ifying that all emails sent during that period were
`delivered and available when Mr. Ingram returned from
`leave. Ms. Johnson’s memorandum explained that other
`employees may request removal from the distribution list
`and failure to honor that request would be considered a dis-
`ruption. At least two employees emailed Mr. Ingram
`
`

`

`INGRAM v. ARMY
`
`3
`
`requesting removal from the distribution list: Margaret
`Talbot-Berard and Jacqueline Hauck.
`On July 4, 2017, Mr. Ingram sent a third email to in-
`form all PEO STRI employees that interest in forming a
`union was low. The next day, Ms. Talbot-Berard and Ms.
`Hauck again requested removal from the distribution list.
`Ms. Johnson asked Mr. Ingram to remove Ms. Hauck from
`the list and to reply to Ms. Hauck acknowledging her re-
`moval. Mr. Ingram replied to Ms. Johnson that he feared
`negative repercussions if he used his work email account
`for such a reply. Ms. Johnson responded that there would
`be no negative repercussions and that it was immaterial
`which email address he used. Mr. Ingram’s second level
`supervisor Jude Tomasello replied, advising that Ms. John-
`son would hold him accountable for failure to follow direc-
`tions.
` Mr. Ingram responded that he would not
`acknowledge Ms. Hauck’s removal until he consulted with
`an attorney.
`On July 13, 2017, Ms. Johnson issued a counseling
`memorandum to Mr. Ingram, explaining that his refusal to
`comply with her directions and to honor Ms. Hauck’s re-
`quest had caused disruption. During a counseling meeting
`on July 14, 2017, Mr. Ingram did not sign to acknowledge
`receipt of the memorandum, instead demanding that Ms.
`Johnson rescind it. According to both Ms. Johnson and a
`witness, Mr. Ingram stated that Ms. Johnson would not
`have issued the counseling memorandum if she knew what
`would happen to her as a result.
`On August 9, 2017, Mr. Tomasello issued an LOR to
`Mr. Ingram, which included charges of (1) insubordination
`for, among other things, refusal to acknowledge that Ms.
`Hauck’s name had been removed from the distribution list;
`and (2) making false statements for claiming in the June
`13 mass email that his access to the PEO STRI network
`was suspended until May 31 and that he was unable to per-
`form work duties as a result.
`
`

`

`4
`
`INGRAM v. ARMY
`
`Mr. Ingram filed a complaint with the Office of Special
`Counsel (“OSC”) requesting corrective action, in which he
`identified three protected activities that he believes con-
`tributed to the LOR. In 2009, he challenged a former su-
`pervisor’s decision to lower his annual performance
`evaluation, reduce his job duties, and reassign him after
`complaining of improper procedures for a training event.
`In 2014, he alleged reprisal based on the 2009 matter. And
`in 2017, he provided a witness statement in connection
`with an internal agency investigation of a colleague’s alle-
`gation of sexual harassment. The same year, Mr. Ingram
`appealed an allegation that the 2009 and 2014 matters led
`to various personnel actions, but this appeal was not iden-
`tified in his complaint filed with OSC.
`The administrative judge (“AJ”) found that Mr. Ingram
`engaged in administratively exhausted protected activity
`for the three events described in his original complaint to
`OSC but determined that the 2017 appeal was not admin-
`istratively exhausted and thus not properly before the
`Board. S.A. 10. He found that Mr. Ingram met his burden
`to show that the 2014 allegation and 2017 witness state-
`ment were contributing factors in the LOR by operation of
`the statutory knowledge/timing test, but the 2009 matter
`was not a contributing factor. S.A. 10–11. He found the
`Army proved by clear and convincing evidence that it
`would have issued the LOR in the absence of the protected
`activity. As to insubordination, the AJ found Mr. Ingram’s
`refusal to acknowledge removing Ms. Hauck from the dis-
`tribution list, despite explicit instructions from both super-
`visors, warranted the LOR. S.A. 14–17. As to making false
`statements, he found the statements made in the June 13
`email were false. S.A. 13–14.
`Mr. Ingram did not petition for review by the full
`Board, so the AJ’s initial decision became final on October
`24, 2018, pursuant to 5 C.F.R. § 1201.113. Mr. Ingram
`timely petitioned this court for review.
` We have
`
`

`

`INGRAM v. ARMY
`
`5
`
`jurisdiction pursuant to 5 U.S.C. § 7703(b)(1)(A) and 28
`U.S.C. § 1295(a)(9).
`
`DISCUSSION
`We must affirm the Board’s decision unless we find it
`to be “(1) arbitrary, capricious, an abuse of discretion, or
`otherwise not in accordance with law; (2) obtained without
`procedures required by law, rule, or regulation having been
`followed; or (3) unsupported by substantial evidence.” 5
`U.S.C. § 7703(c).
`In this individual right of action appeal, the parties do
`not dispute the AJ’s finding that Mr. Ingram established a
`prima facie case of reprisal for whistleblowing. S.A. 7–11.
`“If the employee establishes this prima facie case of re-
`prisal for whistleblowing, the burden of persuasion shifts
`to the agency to show by clear and convincing evidence that
`it would have taken ‘the same personnel action in the ab-
`sence of such disclosure.’” Kewley v. Dep’t of Health & Hu-
`man Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998) (quoting
`5 U.S.C. § 1221(e)(2)). In determining whether the agency
`has met this “clear and convincing” standard, we consider
`the Carr factors: (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 are not whistleblowers but who are otherwise simi-
`larly situated. Carr v. Soc. Sec. Admin., 185 F.3d 1318,
`1323 (Fed. Cir. 1999).
`Mr. Ingram challenges the Board’s finding that the
`Army proved its case by clear and convincing evidence. He
`asserts that the threatening statement he allegedly made
`to Ms. Johnson during the counseling meeting was uncor-
`roborated. The AJ’s finding that the threat occurred is sup-
`ported by Ms. Johnson’s and Ms. Hayes’ email summaries
`of the counseling meeting referencing Mr. Ingram’s threat.
`S.A. 15; S.A. 70–71. Mr. Ingram also argues that Ms.
`
`

`

`6
`
`INGRAM v. ARMY
`
`Johnson assumed without evidence that he had not fol-
`lowed her orders and that Mr. Tomasello based the LOR on
`Ms. Johnson’s assumption. The AJ found that, at the time
`of the counseling letter, Mr. Ingram had not confirmed with
`Ms. Johnson and Mr. Tomasello that he would comply with
`their instructions. The AJ also found Ms. Johnson’s and
`Mr. Tomasello’s testimony regarding their actions and mo-
`tives leading up to the LOR highly credible. S.A. 16–17.
`This court does not substitute its impression of the facts for
`that of the AJ. Jones v. Dep’t of Health & Human Servs.,
`834 F.3d 1361, 1366 (Fed. Cir. 2016). We hold that sub-
`stantial evidence supports the AJ’s findings.
`Mr. Ingram challenges the AJ’s application of the Carr
`factors. For example, he argues under the first and second
`Carr factors that both Ms. Johnson and Mr. Tomasello’s ac-
`tions were based on improper motive and animus. He ar-
`gues Ms. Johnson was aware of his past complaints and his
`disclosures to OSC and the Board, had previously told Mr.
`Tomasello that the supervisor-to-employee trust was non-
`existent, and played a dominant role in the development of
`the LOR. He also argues Mr. Tomasello’s goal was to pro-
`tect Ms. Johnson and that he willfully neglected to investi-
`gate Mr. Ingram’s request to rescind the counseling letter.
`Substantial evidence supports the AJ’s findings. The AJ
`found Ms. Johnson and Mr. Tomasello explained their ac-
`tions as being necessary responses to Mr. Ingram’s miscon-
`duct. S.A. 16. The AJ also determined that Ms. Johnson’s
`and Mr. Tomasello’s patient and consistent testimony
`about their motives, coupled with Mr. Ingram’s decision
`not to testify at the hearing, demonstrated that the agency
`officials had no motive to retaliate. S.A. 13–17.
`With respect to the third Carr factor, Mr. Ingram
`seems to argue the AJ improperly shifted the burden to him
`to identify a similarly situated employee who committed
`similar actions and was treated more favorably. He argues
`the Army should have, but did not, offer evidence on the
`third factor. While the AJ does appear to have misstated
`
`

`

`INGRAM v. ARMY
`
`7
`
`the law with regard to who has the burden here, S.A. 13,
`Carr does not require that each of the three factors individ-
`ually weigh in favor of the agency. Whitmore v. Dep’t of
`Labor, 680 F.3d 1353, 1374 (Fed. Cir. 2012). Though the
`absence of evidence regarding similarly situated employees
`cannot favor the government, see Siler v. Envt’l Protec.
`Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018), “the absence
`of any evidence relating to Carr factor three can effectively
`remove that factor from the analysis,” Whitmore, 680 F.3d
`at 1374. The lack of evidence on the third Carr factor ap-
`pears neutral, and we hold substantial evidence in the rec-
`ord supports the AJ’s finding that the evidence supporting
`the first two Carr factors carries the Army’s burden.
`Mr. Ingram argues the AJ misapplied the law concern-
`ing witness credibility in finding Ms. Johnson’s testimony
`highly credible and well supported by the record. “As an
`appellate court, we are not in [a] position to re-evaluate
`these credibility determinations, which are not inherently
`improbable or discredited by undisputed fact.” Pope v. U.S.
`Postal Serv., 114 F.3d 1144, 1149 (Fed. Cir. 1997).
`Finally, Mr. Ingram argues the AJ applied the wrong
`law with respect to his right to disobey Ms. Johnson’s order
`and his right to due process. These issues were not raised
`before the Board and are thus waived.
`CONCLUSION
`The Board’s decision denying Mr. Ingram’s request for
`corrective action related to the letter of reprimand is sup-
`ported by substantial evidence and is not arbitrary, capri-
`cious, an abuse of discretion, or contrary to law or
`regulation. We have considered Mr. Ingram’s other argu-
`ments and find them unpersuasive. For the foregoing rea-
`sons, we affirm.
`
`AFFIRMED
`
`

`

`8
`
`INGRAM v. ARMY
`INGRAM V. ARMY
`
`COSTS
`
`COSTS
`
`No costs.
`
`N0 costs.
`
`