Roberta J. McAlman v. Department of the Interior

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ROBERTA J. MCALMAN,
Petitioner
v.
DEPARTMENT OF THE INTERIOR,
Respondent
______________________
2023-2392
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-1221-17-0233-W-1.
______________________
Decided: September 5, 2024
______________________
ROBERTA J. MC ALMAN , Honolulu, HI, pro se.
P ATRICK ANGULO, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BRIAN M.
BOYNTON, ELIZABETH MARIE H OSFORD, P ATRICIA M.
MCCARTHY .
______________________
Before D YK, STOLL , and STARK, Circuit Judges.
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MCALMAN v. INTERIOR 2
P ER CURIAM .
Roberta McAlman petitions for review of the Merit Sys-
tems Protection Board’s (“Board”) final order denying Ms.
McAlman’s petition for review and affirming a January 11,
2018, initial decision denying Ms. McAlman’s request for
corrective action under the Whistleblower Protection Act
(“WPA”). Because the Board’s decision is supported by sub-
stantial evidence, we affirm.
BACKGROUND
Ms. McAlman began working at the National Park Ser-
vice (“NPS”) in June 2001, as an information technology
(“IT”) specialist. During her time at NPS, she filed union
grievances, the last of which she filed in 2006. Addition-
ally, Ms. McAlman filed Office of Special Counsel (“OSC”)
complaints in 2007, 2008, and 2010. After her managers
deemed her unsuccessful in her IT specialist position, they
reassigned her to a program assistant position on Septem-
ber 5, 2010.
On February 16, 2011, Ms. McAlman filed an Individ-
ual Right of Action (“IRA”) appeal, alleging that, in retali-
ation for her protected disclosures, “the agency gave her an
undesirable detail” when it reassigned her to a program as-
sistant position and the agency “did not allow her to per-
form the duties of the GS-9 Information Technology
Specialist position.” McAlman v. Dep’t of the Interior, No.
NY-1221-11-0131-W-1, 2011 WL 5866442 (M.S.P.B. June
14, 2011). The Administrative Judge (“AJ”) dismissed the
appeal for lack of jurisdiction on June 14, 2011, finding that
“the record is devoid of any indication that [Ms. McAlman]
made a disclosure within the scope of 5 U.S.C. § 2302(b)(8)
[(the WPA)] or that she informed OSC that she made such
a disclosure.” Id.
In November 2014, Ms. McAlman initiated a request
for a hardship transfer in order to take care of her mother
in Hawaii. Her request was not granted. On April 1, 2015,
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MCALMAN v. INTERIOR 3
Ms. McAlman requested reassignment due to issues with
her direct supervisor, which was denied. Rita Mullally
(Ms. McAlman’s second line supervisor) issued Ms. McAl-
man two Letters of Warning on November 5, 2015, and De-
cember 2, 2015. Ms. McAlman stopped working for medical
reasons in August 2016 and has not reported back for work
since that time.
On September 18, 2017, Ms. McAlman filed an IRA ap-
peal alleging that the NPS took various personnel actions
against her in retaliation for her protected activity. The AJ
considered whether Ms. McAlman met “her burden to es-
tablish her prima facie case” that “(1) [s]he engaged in
whistleblowing activity by making a protected disclosure (5
U.S.C. § 2302(b)(8)) or engaging in other protected activity
(5 U.S.C. § 2302(b)(9)); and (2) the protected activity was a
contributing factor in the agency’s decision to take or fail
to take a personnel action.” S.A. 13–14. The AJ assumed,
without deciding, that Ms. McAlman engaged in protected
activity, but found she “failed to demonstrate her protected
activity contributed to the alleged agency actions.” S.A. 17.
The Board affirmed the initial decision and denied Ms.
McAlman’s petition for review. The AJ’s initial decision
thus became the Board’s final decision. See 5 C.F.R.
§ 1201.113(b). Ms. McAlman appeals.
We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
D ISCUSSION
We first consider our jurisdiction. This court does not
have jurisdiction to hear appeals of mixed cases. Harris v.
Sec. & Exch. Comm’n, 972 F.3d 1307, 1318 (Fed. Cir. 2020).
“When an employee complains of a personnel action serious
enough to appeal to the [Board] and alleges that the action
was based on discrimination, she is said (by pertinent reg-
ulation) to have brought a ‘mixed case.’” Kloeckner v. Solis,
568 U.S. 41, 44 (2012) (emphasis omitted); see also Perry v.
Merit Sys. Prot. Bd., 582 U.S. 420, 424 (2017) (quoting
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MCALMAN v. INTERIOR 4
Kloeckner). It appears that Ms. McAlman has indicated
that she does not wish to abandon her discrimination
claim. However, “IRA appeals . . . by definition are never
‘mixed cases.’” Young v. Merit Sys. Prot. Bd., 961 F.3d
1323, 1328 (Fed. Cir. 2020). Thus, we do not lack jurisdic-
tion over Ms. McAlman’s IRA appeal.
Our review of decisions by the Board is limited by stat-
ute. The Board’s action must be affirmed unless it is found
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); see also Hayes v. Dep’t of the Navy, 727
F.2d 1535, 1537 (Fed. Cir. 1984). “Substantial evidence is
‘such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.’” Crawford v. Dep’t of
the Army, 718 F.3d 1361, 1365 (Fed. Cir. 2013) (quoting
Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229
(1938)).
“[T]o prevail in an IRA appeal alleging retaliation for
protected disclosures under the WPA, the burden falls on
the employee to show by a preponderance of the evidence
that (1) a protected disclosure was made; and (2) the dis-
closure was a contributing factor in the adverse personnel
action.” Carson v. Dep’t of Energy, 398 F.3d 1369, 1377
(Fed. Cir. 2005). Ms. McAlman alleged that “[s]he engaged
in activity protected under 5 U.S.C. § 2302(b)(9) when she
(a) [f]iled OSC complaints in 2007, 2008, and 2010; (b)
[f]iled a[] [Board] appeal in . . . 2011; [and] (c) [f]iled union
grievances.” S.A. 12 (citations omitted). Ms. McAlman
contended that this “protected activity was a motivating
factor in the agency’s decisions to (a) [not] [r]eassign her;
(b) [d]eny her a hardship transfer; (c) [d]emote her from
GS-9 IT specialist to GS-9 visitor use assistant on or before
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MCALMAN v. INTERIOR 5
February 12, 2010; [1] [and] (d) [i]ssue her a [L]etter of
[W]arning in 2015.” S.A. 13. The Board found that Ms.
McAlman “did not prove two of four alleged agency actions
occurred,” namely the denial of her hardship transfer and
the demotion. S.A. 14. But the Board went on to consider
whether Ms. McAlman’s protected activity contributed to
any of the alleged personnel actions, including the hard-
ship transfer and the demotion. Ms. McAlman did not pre-
sent any direct evidence that her protected activity was a
contributing factor in the personnel actions, and she relied
entirely on a knowledge-timing theory that the official tak-
ing the personnel action had knowledge of Ms. McAlman’s
protected activity and the personnel action was proximate
in time to the protected activity.
5 U.S.C. § 1221(e)(1) provides that:
The employee may demonstrate that the disclosure
or protected activity was a contributing factor in
the personnel action through circumstantial evi-
dence, such as evidence that—(A) the official tak-
ing the personnel action knew of the disclosure or
protected activity; and (B) the personnel action oc-
curred within a period of time such that a reasona-
ble person could conclude that the disclosure or
protected activity was a contributing factor in the
personnel action.
The Board found that Ms. McAlman “failed to demon-
strate her protected activity contributed to the alleged
agency actions.” S.A. 17. The Board rejected Ms. McAl-
man’s claim on two grounds. First, the Board found that
for each of the four personnel actions alleged by Ms. McAl-
man, the official taking that action did not have knowledge
1 How Ms. McAlman’s claim differs, if at all, from the
claim in her 2011 IRA appeal (McAlman, 2011 WL
5866442) is unclear.
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MCALMAN v. INTERIOR 6
of Ms. McAlman’s protected activity. The Board found that
the officials “testified credibly and without contradiction
that [they] did not know about [Ms. McAlman’s] OSC com-
plaint, grievances, or [IRA] appeal.” S.A. 19. “[W]e defer
to an AJ’s credibility determinations and . . . such determi-
nations are virtually unreviewable.” Larson v. Dep’t of the
Army, 260 F.3d 1350, 1356 (Fed. Cir. 2001); see also Cham-
bers v. Dep’t of the Interior, 515 F.3d 1362, 1370 (Fed. Cir.
2008) (“The Board affirmed all of the administrative
judge’s findings and conclusions, relying on undisputed
facts and the administrative judge’s credibility determina-
tions. We find no error in the Board’s conclusion. Indeed,
credibility determinations are ‘virtually unreviewable’ at
this level.” (internal citation omitted) (quoting Hambsch v.
Dep’t of the Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986)).
Second, the Board found that the personnel actions
were too distant in time from Ms. McAlman’s protected ac-
tivity. Ms. McAlman’s protected activities occurred in 2006
(union grievances), 2007, 2008, 2010 (OSC complaints),
and on February 16, 2011 (IRA appeal). The alleged per-
sonnel actions occurred in 2010 (demotion), 2014 (denial of
hardship transfer), and 2015 (denial of reassignment and
letters of warning). The Board noted that the denial of
hardship transfer, denial of reassignment, and the letters
of warning all occurred more than two years after Ms.
McAlman’s protected activities. “A two-year gap between
the [protected activity] and the allegedly retaliatory action
is too long an interval to justify an inference of cause and
effect between the two.” Costello v. Merit Sys. Prot. Bd.,
182 F.3d 1372, 1377 (Fed. Cir. 1999). Finally, on or before
February 12, 2010, Ms. McAlman was involuntarily trans-
ferred from IT specialist to visitor use assistant. Some of
the alleged protected activities (her union grievances in
2006 and her OSC complaint in 2007) occurred more than
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MCALMAN v. INTERIOR 7
two years earlier.2 Ms. McAlman’s other protected activi-
ties (her October 2010 OSC complaint and February 16,
2011 IRA appeal) occurred after the alleged demotion. Pro-
tected activities occurring after the alleged demotion can-
not be a contributing factor to the alleged demotion.
We therefore conclude that the Board’s decision that
Ms. McAlman’s protected activity was not a contributing
factor in the adverse personnel actions is supported by sub-
stantial evidence.
AFFIRMED
COSTS
No costs.
2 The Board did not address Ms. McAlman’s 2008
OSC complaint. However, because the Board found that
the official who allegedly demoted Ms. McAlman did not
have knowledge of Ms. McAlman’s protected activities,
substantial evidence supports the Board’s finding that Ms.
McAlman’s 2008 OSC complaint was not a contributing
factor in her alleged demotion.
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