Nathaniel R. McClure v. Department of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
NATHANIEL R. MCCLURE,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2023-1751
______________________
Petition for review of the Merit Systems Protection
Board in Nos. DE-1221-16-0219-W-1, DE-4324-16-0220-I-
1.
______________________
Decided: August 21, 2024
______________________
N ATHANIEL RAY MCC LURE, I, Wichita, KS, pro se.
K ARA M. WESTERCAMP , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by REGINALD
T HOMAS BLADES , J R., BRIAN M. BOYNTON, P ATRICIA M.
MCCARTHY .
______________________
P ER CURIAM .
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MCCLURE v. DVA 2
Nathaniel R. McClure petitions for review of a Merit
Systems Protection Board (“Board”) final order upholding
the initial decision denying his request for corrective ac-
tion. McClure v. Dep’t of Veterans Affs., Nos. DE-4324-16-
0220-I-1, DE-1221-16-0219-W-1, 2023 WL 1860684
(M.S.P.B. Feb. 9, 2023) (“Final Order”); McClure v. Dep’t of
Veterans Affs., Nos. DE-4324-16-0220-I-1, DE-1221-16-
0219-W-1, 2016 WL 3881323 (M.S.P.B. July 11, 2016) (“In-
itial Decision”).1 For the reasons below, we affirm.
I. BACKGROUND
Mr. McClure, a veteran, was employed by the Depart-
ment of Veterans Affairs (“VA”) at the Wichita, Kansas,
Veterans Affairs Medical Center (“Wichita VAMC”) from
October 5, 2014, to April 17, 2015. Final Order at *1; Ini-
tial Decision at 2–3. On March 22, 2015, the VA converted
Mr. McClure to a career-conditional appointment from a
temporary appointment, subject to the completion of a one-
year probationary period. Final Order at *1; Initial Deci-
sion at 2.
Mr. McClure alleged that he made protected disclo-
sures to Dr. Robert Coleman, Chief of Surgery and Ortho-
pedic Services, claiming that the VA was (1) “manipulating
data regarding patient wait time for surgery so it appeared
shorter than reality,” (2) “fac[ing] a critical shortage of staff
in its operating rooms,” (3) “ma[king] only minimal at-
tempts to repair ongoing leaks in the operating rooms,” and
(4) “fail[ing] to pay outside vendors for their consults.”
1 In this case, the Board affirmed the Initial Decision
except as modified by the Final Order. Final Order at *1.
Because the reported version of the Initial Decision is not
paginated, citations in this opinion are to the version of the
Initial Decision included in the corrected supplemental ap-
pendix filed by the government. For example, Initial Deci-
sion at 1 is found at page 20 of the supplemental appendix.
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MCCLURE v. DVA 3
Initial Decision at 12 (internal quotations omitted). Mr.
McClure testified that Ms. Trudy Hill, Dr. Coleman’s assis-
tant, was also present when Mr. McClure made these dis-
closures. Initial Decision at 8, 13.
From March 24 to March 26, 2015, Mr. McClure at-
tended a three-day meeting held by the Wichita VAMC. Fi-
nal Order at *1; Initial Decision at 2. During the meeting,
Mr. McClure “allegedly threw his pen down in frustration,
refused to sit at a table with his group, and stated that the
lead [meeting] facilitator ‘better not make [him] go full sol-
dier on her.’” Final Order at *1; Initial Decision at 3; S.
App’x 68.2 Mr. McClure also allegedly stated that he would
like to “blow [the facilitator’s] car about three feet off the
ground.” Final Order at *1; Initial Decision at 3; see S.
App’x 69. Witnesses to this incident reported his conduct
to agency officials. Final Order at *1; Initial Decision at 3.
Ms. Hill and Ms. Laura Weir, a compliance officer, wit-
nessed the incident and shared their concerns about Mr.
McClure’s conduct at a meeting on April 16, 2015, with Mr.
Francisco Vazquez, Wichita VAMC Director. Initial Deci-
sion at 3. Mr. Vazquez communicated these concerns to
Ms. Sandra Pope, Chief of Knowledge Management and
Analytics. Id.; S. App’x 41.
On April 17, 2015, the VA terminated Mr. McClure
during his probationary period. Final Order at *1; Initial
Decision at 3–4. Ms. Pope issued a notice of termination to
Mr. McClure, stating that he “ha[s] been observed, waving
[his] arms in angry gestures during meetings, throw[i]n[g]
pens during verbal disagreements in meetings, refusing to
sit down at meetings and stand[ing] with [his] arms
crossed, interrupting meetings.” S. App’x 41. Ms. Pope
also noted that “it was reported that [Mr. McClure] made a
statement that [he] ‘will blow up’ a staff member’s car,” and
2 “S. App’x” refers to the corrected supplemental ap-
pendix, ECF No. 23, filed by the Respondent.
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MCCLURE v. DVA 4
that he “made a statement that [he] ha[d] ‘fortified [his]
home with bullet proof glass and clear shooting lanes’ and
that [he] ha[d] stockpiled weapons at [his] home.” Id. The
notice of termination indicated that these actions “caused
alarm in others and concern for safety and is a direct vio-
lation of the Violence in the Workplace policy of the VA.”
Id.
Mr. McClure appealed his probationary termination to
the Board, alleging that his termination constituted whis-
tleblower reprisal under the Whistleblower Protection En-
hancement Act of 2012 and discrimination against his
uniformed service under the Uniformed Services Employ-
ment and Reemployment Rights Act of 1994 (“USERRA”).
Final Order at *1; Initial Decision at 1–2.
On July 11, 2016, the administrative judge issued an
Initial Decision, denying Mr. McClure’s request for correc-
tive action based on his whistleblower reprisal and
USERRA claims. Initial Decision at 1–2, 16. Regarding
Mr. McClure’s USERRA claim, the administrative judge
found Mr. McClure’s “uniformed service was not a substan-
tial or motivating factor in his termination.” Id. at 11. Re-
garding his whistleblower protection claim, the
administrative judge found Mr. McClure “established his
prima facie claim of whistleblower reprisal,” id. at 14, but
the VA “demonstrate[d] by clear and convincing evidence
that it would have terminated [him] even absent his whis-
tleblowing.” Id. at 16.
Mr. McClure filed a petition for review of the initial de-
cision. Final Order at *1. In its Final Order, the Board
modified the Initial Decision to supplement the adminis-
trative judge’s analysis of the whistleblower reprisal claim,
but otherwise affirmed the Initial Decision and denied Mr.
McClure’s petition for review. Id. Specifically, the Board
conducted a more thorough analysis of the Carr factors and
concluded that: (1) “the agency’s evidence supporting [Mr.
McClure’s] termination is strong,” Final Order at *5;
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MCCLURE v. DVA 5
(2) “the evidence of agency motive to retaliate is weak,” id.
at *6; and (3) “this is not a case that hinges on the third
Carr factor,” id.; see also Carr v. Soc. Sec. Admin., 185 F.3d
1318, 1323 (Fed. Cir. 1999) (stating the Carr factors).
Weighing the Carr factors, the Board agreed that the
agency met its overall burden by clear and convincing evi-
dence. Final Order at *6.
Mr. McClure timely petitioned for review. We have ju-
risdiction under 28 U.S.C. § 1295(a)(9).
II. D ISCUSSION
We set aside a Board decision if it is “(1) arbitrary, ca-
pricious, an abuse of discretion, or otherwise not in accord-
ance with law; (2) obtained without procedures required by
law, rule, or regulation having been followed; or (3) unsup-
ported by substantial evidence.” 5 U.S.C. § 7703(c); see also
Standley v. Dep’t of Energy, 26 F.4th 937, 942 (Fed. Cir.
2022), cert. denied, 142 S. Ct. 2873 (2022). “[W]e review
the Board’s underlying factual findings for substantial ev-
idence.” Bryant v. Merit Sys. Prot. Bd., 878 F.3d 1320, 1325
(Fed. Cir. 2017). “Substantial evidence means such rele-
vant evidence as a reasonable mind might accept as ade-
quate to support a conclusion.” Standley, 26 F.4th at 942
(internal quotation marks and citation omitted).
Mr. McClure argues that the Board made legal errors
in upholding the VA’s termination. See Pet’r’s Br. 15–27.
He also disputes several of the Board’s factual findings.
See id. at 4–15. As discussed below, we are not persuaded
by these arguments.
A.
Mr. McClure argues that the Board erred by allowing
the agency to change the charge of the termination letter
from violation of the “Violence in the Workplace policy of
the VA” to “Employee Code of Conduct.” Id. at 4, 16, 21.
He also alleges that the Board improperly added to the
charge that he made the statement “better not make [him]
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MCCLURE v. DVA 6
go full soldier on her,” even though that statement did not
appear in the termination letter. Id. at 15. Additionally,
he argues that the Board erred by breaking the VA’s single
charge into multiple charges. Id. at 17–18. He further con-
tends that the Board erred by allowing into the record Ms.
Weir’s statement and testimony, which was not known by
the deciding official at the time of his termination. Id. at
25.
Mr. McClure’s arguments are without merit because
they are based on misstatements of the record and the
Board’s decisions. First, violating the Violence in the
Workplace policy of the VA was not the sole explanation for
his termination. S. App’x 41. For example, the termination
letter also explains that Mr. McClure’s actions “caused
alarm in others and concern for safety,” and specifically
identified many of the statements by Mr. McClure that
caused alarm and safety concerns. Id. Additionally, alt-
hough the Board found that Mr. McClure did make the “full
soldier” comment and clarified the context, the Board made
this factual finding while making credibility determina-
tions when discussing motivating factors of Mr. McClure’s
termination relating to his USERRA claim. Initial Deci-
sion at 7–10. The Board did not recognize the “full soldier”
comment as a separate charge or specification as Mr.
McClure alleges. Therefore, his argument that the Board
changed the charge does not show whistleblower reprisal
or anti-military animus. Besides the argument relating to
the “full soldier” comment, Mr. McClure fails to identify,
and we fail to see, how the Board broke a single charge into
multiple charges in sustaining the VA’s termination. Ap-
pellant’s Br. 17–18; S. App’x 41. Lastly, Mr. McClure’s con-
tention that Ms. Weir’s account was not available to the VA
is not supported by the record. The Board found Ms. Weir
shared with Mr. Vazquez her concerns about Mr. McClure’s
conduct, and Ms. Pope relied on Mr. Vazquez’s account of
these concerns in making the termination decision. Initial
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MCCLURE v. DVA 7
Decision at 3–4, 10; see also S. App’x 105–07, 244–47. Mr.
McClure’s arguments therefore are unavailing.
Mr. McClure also makes several arguments that the
VA failed to follow proper procedure in his termination. He
argues that the VA failed to notify him of his probationary
status, Pet’r’s Br. 18, and that it was improper for the VA
to terminate him without following the procedures set out
in the Employee Code of Conduct. Id. at 16–17. But pro-
bationary employees like Mr. McClure are not entitled to
the same protections as other employees. See Mastriano v.
F.A.A., 714 F.2d 1152, 1155 (Fed. Cir. 1983) (“[T]he appeal
rights of a probationary employee are extremely lim-
ited . . . .”). A probationary employee may only appeal an
agency’s termination decision to the Board if the termina-
tion does not occur in accordance with the procedures set
forth in 5 C.F.R. § 315.805, or if the termination is based
on discrimination for political reasons or marital status.3
Bante v. Merit Sys. Prot. Bd., 966 F.2d 647, 649 (Fed. Cir.
1992). Section 315.805 only provides protection when the
termination was “for reasons based in whole or in part on
conditions arising before his appointment.” 5 C.F.R.
§ 315.805. Because the above-discussed arguments are not
3 The Civil Service Reform Act of 1978 (CSRA) does
set out certain procedural protections for those terminated
who meet the statutory definition of an employee. See, e.g.,
5 U.S.C. § 7513; Cerwonka v. Dep’t of Veterans Affs.,
915 F.3d 1351, 1356 (Fed. Cir. 2019) (explaining the
agency’s obligations under Chapter 75 of the CSRA). But
a probationary employee does not meet that definition. See
5 U.S.C. § 7511(a)(1); Bush v. Lucas, 462 U.S. 367, 385 &
n.28 (1983) (noting that federal civil servants are granted
comprehensive substantive and procedural protections
against adverse action but explaining that probationary
employees are not entitled to the same appeal rights as
non-probationary employees).
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MCCLURE v. DVA 8
directed to 5 C.F.R. § 315.805 or to a political or marital
status discrimination claim, Mr. McClure cannot raise
them before the Board, or before us on a petition for review.
Moreover, Mr. McClure did not explain, and we fail to see,
how these arguments relate to the Board’s findings under
USERRA or whistleblower reprisal claims.
Mr. McClure further argues that the VA and the Board
erred by considering pre-appointment evidence in violation
of 5 C.F.R. § 315.805. Pet’r’s Br. 10–11. Specifically, he
argues that Ms. Weir’s statement was based on her inter-
actions with Mr. McClure prior to his appointment on
March 22, 2015. See id. at 19–20. Section 315.805 gives a
probationary employee the opportunity to respond if the
termination was based on pre-appointment evidence.
5 C.F.R. § 315.805. A review of the record shows that Ms.
Weir’s statement did not refer to any pre-appointment con-
duct. Initial Decision at 4; see also S. App’x 79 (statement
of Ms. Barton who is now known as Ms. Weir). Therefore,
the Board did not err by considering pre-appointment evi-
dence.
Lastly, Mr. McClure argues that the Board erred in
finding the third Carr factor was not relevant. Pet’r’s Br.
20–21. He argues that Ms. Pope is a similarly situated em-
ployee because she violated the Employee Code of Conduct
by failing to investigate and document the allegations. Id.
Therefore, Mr. McClure contends that he should receive
the same treatment as Ms. Pope. Id. Even taking Mr.
McClure’s allegations as true, they do not show that any
other employees “caused alarm in others and concern for
safety,” S. App’x 41, a stated basis for his termination. Ac-
cordingly, we find that the Board did not err in finding
there to be no evidence of any similarly situated employee
and finding that “this is not a case that hinges on the third
Carr factor.” Final Order at *6.
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MCCLURE v. DVA 9
B.
Mr. McClure also disputes several of the Board’s fac-
tual findings, arguing that: (1) the termination letter’s
characterization of his conduct was inaccurate, Pet’r’s Br.
4–6, 8, 14, 19; (2) the Board erred by crediting certain wit-
nesses’ testimony, id. at 8–12, 19, 24–25; and (3) the Board
failed to consider other evidence. Id. at 22. We are not
persuaded by these arguments and conclude that the
Board’s factual findings are supported by substantial evi-
dence.
First, Mr. McClure argues that the termination letter
was inaccurate in its description of the incident. Id. at 4–
6. For example, he argues that the termination letter notes
that he stated he “‘will blow up’ a staff member’s car,” when
a witness testified that he stated that he “wished he could
blow her car three feet off of the ground.” Id. at 4 (empha-
ses added). He also argues that the termination letter in-
accurately states that he “thr[ew] pens” rather than “threw
a pen” in a meeting. Id. at 6 (emphasis added). Mr.
McClure did not argue, and we fail to see, how this argu-
ment is relevant to the Board’s analysis of his USERRA
and whistleblower protection claims. Moreover, regardless
of the exact wording, Mr. McClure fails to show that the
general description of the incident in the termination letter
is inaccurate. S. App’x 41.
Second, Mr. McClure argues that the Board erred by
finding that he made a threat even though the VA Police
Department never investigated, and the VA never notified
the Office of Inspector General (OIG). Pet’r’s Br. 14, 19.
Similarly, Mr. McClure also contends that the Board erred
in concluding that any witnesses at the VAMC meeting
were truly intimidated by his conduct, given his status as
a veteran with an alleged service-related disability. Id. at
8. These arguments also fail. Although Mr. McClure’s con-
duct does not rise to the level of one requiring a police in-
vestigation or an investigation by the OIG, a lack of
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MCCLURE v. DVA 10
investigation by these entities does not undermine the
strength of the evidence supporting the termination. See
Final Order at *3–4. The Board credited Ms. Weir’s testi-
mony regarding Mr. McClure’s conduct and rejected any
argument that the testimony was fabricated or exagger-
ated. Initial Decision at 11. Other record evidence also
consistently supports that the VA had a genuine concern
for safety. See, e.g., S. App’x 68–69; S. App’x 79; S. App’x
172–73. The Board’s conclusions were supported by sub-
stantial evidence.
Mr. McClure’s additional arguments that the Board
erred in crediting certain witnesses’ testimony are also un-
persuasive. For example, Mr. McClure argues that Ms.
Pope, Ms. Hill, Mr. Vazquez, Mr. Rupnick, and Mr. John
Muther were not credible. Pet’r’s Br. 8–12, 19, 24–25. He
alleges that some of these witnesses were aware of Mr.
McClure’s protected disclosures and cannot be found cred-
ible. See id. at 19, 24–25. “Evaluation of witness credibil-
ity is within the discretion of the Board and in general,
such evaluations are virtually unreviewable on appeal.”
Hornseth v. Dep’t of the Navy, 916 F.3d 1369, 1376 (Fed.
Cir. 2019) (cleaned up). Therefore, we will not disturb the
administrative judge’s credibility determination. See, e.g.,
Initial Decision at 10–11; see also Final Order at *4 n.4.
To the extent Mr. McClure challenges the Board’s find-
ing that the agency officials did not have a strong motive to
retaliate, see Pet’r’s Br. 8–10, 24–25, the Board already con-
sidered and rejected this argument, and we see no error in
the Board’s analysis. See Initial Decision at 13–15 (finding
Mr. McClure failed to adduce evidence of any knowledge of
the disclosure by Ms. Pope, Ms. Weir, Mr. Vazquez, Mr.
Muther, or Mr. Rupnick); Final Order at *5 (finding Ms.
Pope had no knowledge of the disclosure and no evidence
that Ms. Hill had any influence over her). Mr. McClure
contends that several emails show that the deciding offi-
cial, Ms. Pope, had actual knowledge of Mr. McClure’s pro-
tected disclosures, Pet’r’s Br. 8–9, 24–25, but the emails
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MCCLURE v. DVA 11
Mr. McClure cites do not mention the disclosures. S. App’x
62–69. Therefore, we reject Mr. McClure’s argument and
conclude that the Board’s finding that the agency official
did not have a strong motive to retaliate is supported by
substantial evidence.
Finally, Mr. McClure argues that the Board failed to
consider evidence that allegedly showed anti-military ani-
mus by several agency officials, including Ms. Pope and Mr.
Vazquez. Pet’r’s Br. 22. But the Board again considered
and rejected such evidence. See Initial Decision at 6–11.
The Board found there to be no evidence that any of the
witnesses harbored anti-military animus against Mr.
McClure. See id. at 9–11. The Board thus found that Mr.
McClure’s “uniformed service was not a substantial or mo-
tivating factor in his termination.” Id. at 11; Final Order
at *7. Here too, the Board did not err, and we conclude
substantial evidence supports its finding.
III. CONCLUSION
We have considered Mr. McClure’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm the Board’s decision.
AFFIRMED
COSTS
No costs.
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