Kiesha D. Lewis v. Department of the Treasury

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

KIESHA D. LEWIS,
Petitioner

v.

DEPARTMENT OF THE TREASURY,
Respondent
______________________

2020-1684
______________________

Petition for review of the Merit Systems Protection
Board in No. DC-1221-19-0365-W-2.
______________________

Decided: September 8, 2020
______________________

K
IESHA D. LEWIS, Bowie, MD, pro se.

LAUREN MOORE, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by ETHAN P.
DAVIS, ALLISON KIDD-MILLER, ROBERT EDWARD
KIRSCHMAN, JR.
______________________

Before R
EYNA, CLEVENGER, and CHEN, Circuit Judges.
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LEWIS v. TREASURY
2
PER CURIAM.
Pro se appellant Kiesha Lewis appeals from a decision
of the Merit Systems Protection Board (Board) denying
Ms. Lewis’s request for corrective action under the Whis-
tleblower Protection Act (WPA). Because we conclude that
the Board’s determinations are neither arbitrary nor capri-
cious nor contrary to law and are supported by substantial
evidence, we affirm.
B
ACKGROUND
Ms. Lewis was employed by the Internal Revenue Ser-
vice (the Agency) as a Frontline Manger for the Enterprise
Program Management Office Web Applications (Web Apps)
Division starting in January 2017. In July 2017, she sent
an email to her second-level supervisor, Ramona Henby,
and her first-level supervisor, Kevin McCreight, claiming
that Mr. McCreight was prematurely allowing contractors
to begin working on a contract before they were properly
cleared to perform the work. S.A. 38.
1
Ms. Henby dis-
cussed the email with Mr. McCreight and concluded that
Mr. McCreight’s actions were proper.
In August 2017, Ms. Lewis received an opportunity to
go on detail to be a Labor and Employment Relations Spe-
cialist. This detail was not reimbursable, meaning the
Agency would still have to pay Ms. Lewis’s salary. The
Agency was particularly sensitive to the not reimbursable
status because Web Apps was about 50% understaffed, and
onboarding a new employee or contractor could take sev-
eral months, delaying important projects with stringent
deadlines. S.A. 20. Mr. McCreight, Ms. Henby, and
Ms. Linda Gilpin, Ms. Lewis’s third-level supervisor,
agreed in an email conversation that the agency did not

1
S.A. refers to the supplemental appendix filed with
the Agency’s brief. Ms. Lewis also filed an appendix at the
end of her opening brief, which is cited as App’x.
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LEWIS v. TREASURY
3
have the funds to pay for Ms. Lewis’s detail and backfill her
position in Web Apps. App’x 91–92. After consulting with
human resources to ensure they were permitted to deny the
detail for this reason, the group decided to deny Ms. Lewis’s
request to go on the detail. Id.
In November 2017, Ms. Lewis learned that
Mr. McCreight rated Ms. Lewis in her performance review
as “met expectations” (also referred to as “met”), and in re-
sponse she filed a complaint with the Treasury’s Inspector
General for Tax Administration (TIGTA) alleging that
Mr. McCreight engaged in poor and improper management
practices. TIGTA investigated these allegations and issued
a report summarizing its findings. Part of the TIGTA re-
port summarized statements from Mr. McCreight and
Ms. Henby about their respective decisions on Ms. Lewis’s
performance review. Mr. McCreight explained that “Lewis
was a first time Manager, and had been in the position for
less than a year and while she performed some tasks well,
she was lacking in others.” App’x 88. For her part,
Ms. Henby described that “Lewis did well in some aspects
of her job but had difficulties with other aspects. For ex-
ample, Lewis was quick to point out variances in the ac-
counting for the group. . . . She believed that Lewis
struggled in getting past the variances and was unable to
find viable solutions to the problems.” App’x 82. TIGTA
did not refer the case for any further action.
Ms. Lewis resigned in November 2017. After she re-
signed, the Agency issued Ms. Lewis’s finalized perfor-
mance evaluation, rating her as a “met.”
Thereafter, Ms. Lewis filed a complaint with the Office
of Special Counsel (OSC),
2
alleging that a number of

2
Ms. Lewis also filed a second complaint adding alle-
gations against her former supervisor for another alleged
protected disclosure. The Board determined the
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LEWIS v. TREASURY
4
retaliatory personnel actions were taken by the Agency in
violation of the WPA. OSC terminated its inquiries after
finding no violation. Lewis v. Dep’t of the Treasury, No. DC-
1221-19-0365-W-2, 2020 WL 997127, at *2 –3 (M.S.P.B.
Feb. 27, 2020). Ms. Lewis appealed that decision to the
Board, which denied all of Ms. Lewis’s allegations of WPA
violations.
As to the performance evaluation rating, the Board
found that Ms. Lewis’s July 2017 email regarding alleged
improper contractor work was a protected disclosure. The
Board then found that based on the knowledge-timing
test,
3
Ms. Lewis had established that a reasonable person
could conclude that her July 2017 email was a contributing
factor to her performance evaluation and rating. As a re-
sult, the Agency was required to prove by clear and con-
vincing evidence that it would have given Ms. Lewis the
same performance rating in the absence of Ms. Lewis’s pro-
tected disclosure. The Agency presented declarations from
Mr. McCreight, Ms. Henby, and Ms. Gilpin. The declara-
tions asserted that Mr. McCreight filed his performance
evaluation to Ms. Henby, rating Ms. Lewis as “met” be-
cause while she met the standards for an “exceed” rating in
three of her four Commitments, she did not “exceed” in the
fourth and her Requirements were ranked as “met.” S.A.
41. Ms. Henby then reviewed this evaluation and

disclosures did not qualify as protected disclosures.
Ms. Lewis has not challenged the Board’s determination
regarding this second OSC complaint.
3
The knowledge-timing test creates a presumption
that a personnel action was retaliatory if taken by a person
with knowledge of the protected disclosure within a period
of time such that a reasonable person could conclude that
the protected disclosure contributed to the agency’s deci-
sion to take the personnel action. Reid v. Merit Sys. Prot.
Bd., 508 F.3d 674, 678–79 (Fed. Cir. 2007).
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LEWIS v. TREASURY
5
concurred, explaining that although Ms. Lewis was on the
border between “met” and “exceeds,” she needed more
points to meet the requirements of an overall “exceeds” rat-
ing. Id. at 46. Ms. Henby also considered the performance
evaluation for the first few months of the 2017 fiscal year
from Ms. Lewis’s previous supervisor in a different Agency
unit before she joined Web Apps, which rated Ms. Lewis as
“met.” Id. Ms. Henby then sent her assessment to Ms. Gil-
pin. Ms. Gilpin discussed the rating with Ms. Henby and
determined that the “met” rating was appropriate. Id. at
49–50. The Board found that the Agency met its burden of
proving that it would have rated Ms. Lewis as “met” re-
gardless of the July 2017 email.
4
Id. at 17–19. The Board
reached this conclusion because the declarations showed
that while Ms. Lewis was close to the “exceeds” level, she
did not timely meet one of her commitments, and while she
had performed exceptionally in some aspects of her job, she
had merely met expectations in others. Id.
Regarding the detail opportunity, the Board similarly
found that Ms. Lewis established that her protected disclo-
sure was likely a contributing factor to the Agency’s deci-
sion through the knowledge-timing test. Id. at 12–13. The
Board continued, finding that the Agency made this deci-
sion because the detail was not reimbursable, and Web
Apps did not have the funding to continue paying
Ms. Lewis’s salary and backfill the position. Id. at 19–21.
This situation was further exacerbated by the fact that
Web Apps was already about 50% understaffed. Id. at 20.
The Board further found that the Agency had shown that
there would have been a significant delay in work needed
for Web Apps while any new employee or contractor was
onboarded. Id. at 21. As a result, the Board found clear
and convincing evidence that the Agency would have

4
The Board did not hold an in-person hearing because
Ms. Lewis waived the hearing. S.A. 1.
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LEWIS v. TREASURY
6
denied Ms. Lewis’s detail opportunity regardless of the pro-
tected disclosure.
Ms. Lewis timely appealed to this court. We have ju-
risdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our standard of review is limited and requires this
court to affirm a decision of the Board unless it is “(1) arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with the law; (2) obtained without proce-
dures required by law, rule, or regulation having been fol-
lowed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). Substantial evidence is “relevant evi-
dence” that “a reasonable mind might accept as adequate
to support a conclusion.” McLaughlin v. Office of Pers.
Mgmt., 353 F.3d 1363, 1369 (Fed. Cir. 2004).
The WPA prohibits an agency from taking a personnel
action because of any whistleblowing “disclosure” or activ-
ity. 5 U.S.C. § 2302(b)(8)–(9). An employee who believes
she has been subjected to illegal retaliation must prove by
a preponderance of the evidence that she made a protected
disclosure that contributed to the agency’s action against
her. See Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1367
(Fed. Cir. 2012). “If the employee establishes this prima
facie case of reprisal for whistleblowing, the burden of per-
suasion shifts to the agency to show by clear and convinc-
ing evidence that it would have taken ‘the same personnel
action in the absence of such disclosure.’” Id. at 1364 (quot-
ing 5 U.S.C. § 1221(e)). If the agency does not show by clear
and convincing evidence that it would have taken the same
action absent the whistleblowing, the agency’s personnel
action must be set aside. See Siler v. Envtl. Prot. Agency,
908 F.3d 1291, 1298 (Fed. Cir. 2018).
In this appeal, Ms. Lewis argues that the Board abused
its discretion in finding the Agency’s witnesses to be credi-
ble and that the Board incorrectly interpreted and applied
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LEWIS v. TREASURY
7
5 U.S.C. § 4302 as well as various provisions of the Internal
Revenue Manual (IRM 6.430 and 6.335.1.12.15–17). The
challenges allege that Mr. McCreight and the Agency did
not follow the proper rules when determining Ms. Lewis’s
performance evaluation rating or when denying her the op-
portunity for her detail. But even if Ms. Lewis is correct as
to these matters, she has not explained how such irregu-
larities undercut the Agency’s evidence that it would have
given Ms. Lewis the same performance rating and denied
the detail in the absence of her July 2017 email. Regard-
less, we see no misapplication of 5 U.S.C. § 4302 or IRM
6.430. Moreover, IRM 6.335.1.12.15–17 do not apply to de-
tail assignments.
Substantial evidence supports the Board’s determina-
tion that the Agency would have issued Ms. Lewis a “met”
rating regardless of her protected disclosure. The record
evidence demonstrates that while Ms. Lewis may have sat-
isfied the “exceeds” standard in some areas, she did not sat-
isfy that standard in others. As Mr. McCreight stated,
“Lewis was a first time Manager, and had been in the posi-
tion for less than a year and while she performed some
tasks well, she was lacking in others.” App’x 88. He fur-
ther explained that the deadlines on which Ms. Lewis
awarded task orders were not fully satisfied. S.A. 18–19.
Similarly, Ms. Henby testified that “Lewis did well in some
aspects of her job, but had difficulties with other aspects.
For example, Lewis was quick to point out variances in the
accounting for the group. . . . She believed that Lewis
struggled in getting past the variances and was unable to
find viable solutions to the problems.” App’x 82. Ulti-
mately, Ms. Henby concluded that while Ms. Lewis was
close to receiving an “exceeds,” she needed more points in
her evaluation to receive the “exceeds” rating. S.A. 46.
Ms. Gilpin agreed. Id. at 50. Moreover, Ms. Henby also
noted Ms. Lewis’s “met” departure rating from her prior
supervisor for the work she had performed during the first
part of the fiscal year in a different unit. Id. at 46. In view
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LEWIS v. TREASURY
8
of the foregoing, the Board was entitled to find the witness
declarations, made under penalty of perjury, credible and
persuasively establishing that Ms. Lewis would have re-
ceived in 2017 a “met” rating in the absence of her pro-
tected disclosure.
Ms. Lewis challenges, without pointing to any testi-
mony of her own, that the witnesses inconsistently por-
trayed the roles of Mr. McCreight and Ms. Gilpin.
5
The
Board, finding no inconsistency in any witness’s testimony,
determined that Ms. Lewis failed to show that any witness
was not credible. We see no reason to overturn the Board’s
credibility determinations. Ms. Lewis has not shown that
either testimony was “inherently improbable or discredited
by undisputed evidence or physical fact.” Hanratty v. Dep’t
of Transp., 819 F.2d 286, 288 (Fed. Cir. 1987); see also
Hambsch v. Dep’t of Treasury, 796 F.2d 430, 436 (Fed. Cir.
1986) (“[T]hese credibility determinations are virtually un-
reviewable.”). Although every statement does not say the
magic words that Mr. McCreight could not finalize the
evaluation, it is clear from the statements in their entirety
that Mr. McCreight was but the first step in the evaluation
process. See, e.g., App’x 127–28. Regarding Ms. Gilpin, it
is unsurprising that when Mr. McCreight and Ms. Henby
explained their own decisions about Ms. Lewis’s rating that
they did not discuss Ms. Gilpin’s role, particularly when

5
Ms. Lewis claims Ms. Gilpin’s credibility is under-
mined by an email chain produced by the Agency. Appel-
lant’s Br. at 20–21. The time stamps of the emails show
that Ms. Gilpin responded to an email from Ms. Henby re-
garding Ms. Lewis’s resignation an hour before Ms. Henby
sent her email. Id. But Ms. Lewis at no point gives any
indication what relevant information may have been edited
or omitted that may undermine Ms. Gilpin’s testimony on
the matters on appeal. It is thus unclear to us how the time
stamp discrepancy suggests that Ms. Gilpin is not credible.
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LEWIS v. TREASURY
9
she did not participate until later in the process. The rec-
ord is thus consistent regarding each supervisor’s role.
Likewise, we disagree with Ms. Lewis’s assertion that
the Agency witnesses provided inconsistent testimony as to
her meeting all of her Commitments. The record reflects
that while Ms. Lewis met the “exceeds” standard for three
of her Commitments, she did not meet that standard for
the fourth Commitment because she did not always meet
her deadlines. S.A. 40–41; see also App’x 82. Thus, she was
awarded a “met” for that Commitment. App’x 84.
Ms. Lewis has therefore provided no sufficient justification
to overturn the Board’s credibility determinations. We
thus conclude that the Board’s findings are supported by
substantial evidence.
C
ONCLUSION
Ms. Lewis has failed to show that the Board’s decision
was arbitrary and capricious, contrary to the law, or lack-
ing substantial evidence. On the contrary, the record re-
flects that Ms. Lewis fell short of the “exceeds” rating and
that she was denied her detail opportunity because of the
limited resources of Web Apps. The Board determined that
this record did not show any retaliation from the Agency
for Ms. Lewis’s protected disclosures by clear and convinc-
ing evidence. We agree. We have considered Ms. Lewis’s
remaining arguments and find them unpersuasive.
6
Ac-
cordingly, we affirm the Board’s determination.
AFFIRMED
No Costs.

6
Ms. Lewis included a request in her reply brief to have
oral argument. Appellant’s Reply Br. at 11. After consid-
eration, we deny this request.
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