Wendy M. Alguard v. UNITED STATES DEPARTMENT OF AGRICULTURE and SONNY PERDUE, US Dept of Agriculture

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WENDY M. ALGUARD,
Plaintiff-Appellant,
v.
UNITED STATES DEPARTMENT OF
AGRICULTURE and SONNY PERDUE,
US Dept of Agriculture,
Defendants-Appellees.
No. 15-35808
D.C. No. 2:13-cv-03083-TOR
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, Chief Judge, Presiding
Argued and Submitted November 8, 2018
Pasadena, California
Before: RAWLINSON, MELLOY,** and HURWITZ, Circuit Judges.
Wendy M. Alguard appeals a summary judgment in this action challenging
the rejection by the Merit Systems Protection Board (the “Board”) of her claim under
the Whistleblower Protection Act of 1989, 5 U.S.C. § 2302(b)(8). We review the
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Michael J. Melloy, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
FILED
MAR 1 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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district court judgment de novo, and set aside a Board action only if it is “(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.” Washington v. Garrett, 10
F.3d 1421, 1428 (9th Cir. 1993) (quoting 5 U.S.C. § 7703(c)). We affirm.
1. Alguard, an agricultural commodity grader, reported a private company’s
use of tainted food for school meals. Shortly thereafter, the USDA cancelled its
inspection contract with that company. At approximately the same time, several
other companies within Alguard’s duty area ceased operations or substantially
reduced their need for inspection services. Alguard’s duty station then eliminated
three full-time grader positions; Alguard was the least senior grader. The USDA
offered Alguard a transfer to a site nearly 1000 miles away. She refused the transfer,
and the USDA terminated her employment. After Alguard unsuccessfully raised a
whistleblower claim in administrative proceedings, this suit followed.
2. We assume arguendo that Alguard’s disclosure was protected under the
Whistleblower Protection Act. The USDA must therefore prove by clear and
convincing evidence that it would have taken the same action absent the disclosure.
5 U.S.C. § 1221(e)(2). We analyze three factors in determining whether substantial
evidence supports the determination by the Administrative Law Judge (“ALJ”) that
the USDA met that burden: (1) “the strength of the agency’s evidence in support of”

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its action; (2) “the existence and strength of any motive to retaliate”; and (3) “any
evidence that the agency takes similar actions against” otherwise similarly situated
non-whistleblowers. Duggan v. Dep’t of Def., 883 F.3d 842, 846 (9th Cir. 2018)
(adopting the test articulated in Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed.
Cir. 1999)). Considering these factors and the record “as a whole,” see id. at 847,
we find the ALJ’s denial of Alguard’s whistleblower claim supported by substantial
evidence.
a. On the first factor, the ALJ permissibly determined that Alguard was
reassigned due to overstaffing and declining work. The demand for inspection
services in the relevant geographic region had declined substantially even without
the loss of the company whose misconduct Alguard reported. The agency relied on
seniority in making reassignment decisions, and Alguard was the least senior of the
graders. That Alguard’s disclosure may have contributed to the decline in work is
immaterial.
b. On the second factor, any motive of the USDA to retaliate against Alguard
was weak at best. The ALJ considered all appropriate evidence, and reasonably
concluded that because Alguard’s disclosure was not directed at agency personnel,
it was not likely to create a strong motive to retaliate.
c. On the third factor, we find no error in the agency’s determination of the
relevant geographic area or in its analysis of similarly situated non-whistleblowers.

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A whistleblower need not fare better than similarly situated non-whistleblowers; she
must only be treated the same as she would have been absent the protected
disclosure. See 5 U.S.C. § 1221(e)(2).
AFFIRMED.

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