Duran v. DOJ

Case: 24-1803 Document: 67 Page: 1 Filed: 08/24/2026

NOTE: This disposition is nonprecedential. United States Court of Appeals for the Federal Circuit

______________________ THERESA DURAN, Petitioner v. DEPARTMENT OF JUSTICE, Respondent ______________________ 2024-1803 ______________________

Petition for review of the Merit Systems Protection Board in No. DE-0752-16-0116-I-2.

______________________ Decided: August 24, 2026 ______________________

STEPHEN GOLDENZWEIG, Goldenzweig Law Group,

PLLC, Bellaire, TX, argued for petitioner.

STEPHANIE FLEMING, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, argued for respondent. Also represented by ELIZABETH MARIE HOSFORD, PATRICIA M. MCCARTHY, BRETT SHUMATE.

______________________ 2 DURAN v. DOJ

Before TARANTO, HUGHES, and CUNNINGHAM, Circuit

Judges.

HUGHES, Circuit Judge.

Theresa M. Duran petitions for review of a decision of the Merit Systems Protection Board sustaining her re- moval from federal service. For the following reasons, we affirm.

I

Ms. Duran was employed as an industry operations in- vestigator (IOI) with the Bureau of Alcohol, Tobacco, Fire- arms, and Explosives from October 2005 through November 2015. As part of her duties and responsibilities, Ms. Duran managed various regulatory investigations, an- alyzed industry member records and intelligence data, and developed strategies as investigations progressed. Her role required “extensive computer work.” Appx. 491.

In December 2011, Ms. Duran began requesting ac- commodations because she was diagnosed with a neurolog- ical disorder that causes light sensitivity, neck pain, and fatigue. One of Ms. Duran’s main requests was for her desk to be moved to another part of her cubicle to reduce her light exposure. She also asked for an increase in telework allotment, including during the week she served as the on- duty IOI. Ms. Duran’s request to move her desk was granted, but her telework request was denied because cer- tain responsibilities as the on-duty IOI required her to be in the office. The agency proposed that Ms. Duran could work in the office conference room until her cubicle was re- configured. The agency also informed Ms. Duran that other interim measures would be implemented to accommodate her condition, such as drawing blinds in the conference room, moving her seat in the room, and turning off the overhead lights. Her cubicle was eventually reconfigured in June 2012, but Ms. Duran submitted a letter from her doc- tor indicating that her headaches had increased since her initial request, and that she would need ongoing accommo- dations because her light sensitivity was likely permanent. Her doctor recommended that she “should be given a work area with reduced or subdued lighting, or be allowed to tel- ework.” Appx. 1047. In October 2012, the agency requested additional information from Ms. Duran’s medical provider about her condition, which she provided through her attor- ney.

Eventually, the agency fitted the conference room with blackout curtains in May 2013. This accommodation was initially helpful, but Ms. Duran’s symptoms persisted. In February 2015, Ms. Duran asked for certain lights to be re- moved from the conference room during meetings she was to attend because they triggered her headaches. Her super- visor approved the request and agreed that the agency would seek to reduce the lighting in the conference room.

Ms. Duran then filed a Family and Medical Leave Act (FMLA) request for episodic leave two times per month, for one to two days each time. Her request was accompanied by a medical provider certification form, which indicated that (1) she was unable to work on a computer or attend meetings in a brightly lit room, (2) her new medical diag- nosis of Baseline Chiari Malformation caused increased headaches and neck pain, and (3) she would be unable to work during flare-ups because of her episodic symptoms and medication. Ms. Duran’s request was approved. In March 2015, the agency requested clarification on the re- strictions listed on Ms. Duran’s FMLA form. In April 2015, the agency explained that clarification was needed to eval- uate the sufficiency of the reasonable accommodations that had been provided. Ms. Duran refused to provide the addi- tional documentation requested by the agency.

Because Ms. Duran elected not to provide clarification about her medical conditions, the agency proposed her re- moval for medical inability to perform in July 2015. The agency’s determination was based on the representations 4 DURAN v. DOJ made in Ms. Duran’s FMLA form and the accompanying medical provider certification form and based on her fail- ure to provide clarification about her medical conditions. The agency then removed Ms. Duran from her position, ef- fective November 20, 2015.

In December 2015, Ms. Duran appealed the agency’s removal decision to the Board and asserted, among other affirmative defenses, that her removal constituted whistle- blower reprisal in violation of the Whistleblower Protection Act (WPA), 5 U.S.C. § 2302(b)(8)–(9). Ms. Duran claimed that (1) she made several protected disclosures to the Di- rector of Industry Operations about alleged violations of law, gross mismanagement, and abuse of authority by her supervisor; (2) she filed several complaints with the Equal Employment Opportunity Commission (EEOC); and (3) she identified other employees failing to follow agency guidelines and other federal requirements, including the FMLA notice obligations.

In July 2016, while her appeal was pending, Ms. Duran applied for disability annuity from the Office of Personnel Management, which was granted in July 2017. In her dis- ability application, Ms. Duran attested that as early as Au- gust 2011, she knew that she would not be able to continue as an IOI and that “functional limitations, chronic pain, and overwhelming and debilitating fatigue made it impos- sible for [her] to continue in [her] position.” Appx. 491. She expressly stated that she was no longer able to perform her job and that no accommodations would be possible “because of the nature, extent and severity of [her] medical condi- tions.” Appx. 489.

In June 2017, an administrative judge of the Board held several hearings on Ms. Duran’s removal and her whistleblower reprisal claim. In one such hearing, Ms. Du- ran repudiated the attestations she made in her disability application, claiming that she only signed the disability ap- plication stating that no workplace accommodations were possible because her attorney told her to do so. However, on February 8, 2018, the administrative judge determined that the agency proved its charge of medical inability to perform, particularly in light of Ms. Duran’s attestation in her disability application that no workplace accommoda- tions would be sufficient to enable her to perform her du- ties. Duran v. Dep’t of Just., No. DE-0752-16-0116-I-2, 2018 MSPB LEXIS 539, at *39 (Feb. 8, 2018) (Initial Deci- sion). The administrative judge found Ms. Duran’s testi- mony attempting to minimize the representations in her disability application to be “awkward, strained, and wholly unbelievable” and therefore did not credit it. Id. at *34. In- stead, the administrative judge credited the evidence relied on by the agency and her own statements in her disability application. Id. at *37–39. The administrative judge also determined that Ms. Duran failed to establish by a prepon- derance of the evidence that she engaged in a protected whistleblower activity because “other than [Ms. Duran’s] bare allegations, the record [was] devoid of any credible documentary or testimonial evidence regarding [her] alle- gations of reprisal for whistleblowing.” Id. at *42.

Ms. Duran petitioned for review of the initial decision, which the Board denied on March 8, 2024. Duran v. Dep’t of Just., No. DE-0752-16-0116-I-2, 2024 MSPB LEXIS 1132, at *2 (Mar. 8, 2024) (Final Decision). While the Board determined that the agency did not establish a con- nection between Ms. Duran’s condition and her perfor- mance deficiencies, it nonetheless sustained the removal because the agency proved, given that Ms. Duran’s position required regular computer use, that there was a high prob- ability that her condition would worsen if she continued working. Id. at *10. The Board also found that, rather than challenge the administrative judge’s findings regarding her whistleblower defense, Ms. Duran set forth new al- leged disclosures. Id. at *15. For example, Ms. Duran sum- marily alleged to the Board that she made protected disclosures to the EEOC regarding violations of law, rules, 6 DURAN v. DOJ and regulations, including the agency’s failure to abide by the FMLA, and she pointed to reports that purportedly demonstrated that her coworkers were not following poli- cies. Id. The Board found that these allegations failed to amount to nonfrivolous allegations and failed to establish any error in the administrative judge’s analysis. Id. Ms. Duran then petitioned this court for review of the Board’s final decision.

II

We must affirm a decision of the Board unless it is “(1) arbitrary, capricious, an abuse of discretion, or other- wise not in accordance with law; (2) obtained without pro- cedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c); see also Baird v. Dep’t of the Army, 517 F.3d 1345, 1349 (Fed. Cir. 2008). Substantial evidence is “such relevant evidence as a reasonable mind might ac- cept as adequate to support a conclusion.” McGuffin v. Soc. Sec. Admin., 942 F.3d 1099, 1107 (Fed. Cir. 2019) (citation omitted).

On appeal, Ms. Duran appears to argue that (1) the Board erred in finding that the agency proved its charge of medical inability to perform, and (2) the Board erred in de- termining that she failed to prove her affirmative defense of whistleblower reprisal. We address each in turn.

A

Regarding Ms. Duran’s argument that the Board erred in concluding that the agency proved its charge, we are un- persuaded.

To the extent that Ms. Duran challenges the suffi- ciency of the evidence relied upon by the Board in its deci- sion, we find that the Board’s decision to sustain the agency’s removal is supported by substantial evidence. The Board cited to and relied upon the credibility determina- tions in the initial decision regarding Ms. Duran’s statements in her disability retirement application attest- ing that she was unable to perform her job due to “constant and chronic headaches, photosensitivity and loss of cogni- tive capacity.” Final Decision, 2024 MSPB LEXIS 1132, at *5 (internal quotation marks omitted). The Board high- lighted the administrative judge’s finding that Ms. Duran’s disability application was “extremely consistent” with the evidentiary record and her doctor’s statements that Ms. Duran was prevented by her conditions from perform- ing her job duties. Id. at *6 (quoting Initial Decision, 2018 MSPB LEXIS 539, at *37). And the Board noted that the administrative judge discredited Ms. Duran’s testi- mony about her representations in her disability applica- tion because it found that it was “awkward, strained, and wholly unbelievable” and “completely self-serving to [her] legal claims.” Id. (quoting Initial Decision, 2018 MSPB LEXIS 539, at *34). Importantly, the Board also incorpo- rated the administrative judge’s finding that, despite Ms. Duran’s testimony, she had not corrected her disability application to reflect her position that she could work with reasonable accommodations—rather, she continued to ac- cept a disability annuity. Id. at *6–7.

Ms. Duran claims that the Board failed to consider her physical limitations and whether reasonable accommoda- tions were available. Not so. The Board considered Ms. Du- ran’s arguments but found that the administrative judge correctly stated that Ms. Duran refused to cooperate with agency officials when it tried to gather clarifying infor- mation about her medical condition. Id. at *8–9. And the Board cited the administrative judge’s consideration of Ms. Duran’s disability application form, where she attested that “[n]o accommodations are possible because of the na- ture, extent and severity of [her] medical conditions. Id. at *9 (quoting Initial Decision, 2018 MSPB LEXIS 539, at *32). Thus, we see no error in the Board’s reliance on the administrative judge’s analysis, which considered the con- tents of Ms. Duran’s FMLA request and disability 8 DURAN v. DOJ application, as well as her sworn testimony, in its determi- nation that the agency proved its charge of medical inabil- ity to perform. Because Ms. Duran’s arguments on appeal fail to establish that the Board’s decision was unsupported by substantial evidence, we affirm. 1

B

Ms. Duran also challenges the Board’s determination that she failed to articulate any nonfrivolous protected dis- closure sufficient to support a whistleblower reprisal de- fense. To assert a whistleblower defense, an employee “must prove by a preponderance of the evidence that he or she made a protected disclosure under § 2302(b)(8) that was a contributing factor to the employee’s termination.” Oliva v. Dep’t of Veterans Affs., 176 F.4th 650, 656 (Fed. Cir. 2026) (internal citation and quotation marks omitted). Subject to limited exceptions, a disclosure of in- formation is protected under the WPA if the speaker “rea- sonably believes [it] evidences—(i) any violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8)(A). The test for whether a belief is “reasona- ble” is an objective one: “whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee would reasonably conclude that the actions of the government evidence wrongdoing as defined by the Whistleblower Protection Act.” Young v. Merit Sys. Prot. Bd., 961 F.3d 1323, 1328 (Fed. Cir. 2020). On appeal, Ms. Duran only argues that she made protected disclosures related to (1) agency employees failing to follow agency and federal guidelines, and (2) the agency’s failure to abide by the FMLA when it requested additional medical information beyond her FMLA certification form. We ad- dress each in turn.

Ms. Duran claims that she reported instances of agency employees failing to follow Firearm Inspection Re- port formatting instructions, which she contends consti- tutes a protected disclosure under the WPA. But rather than disclosing any violation of law, rule, or regulation, these communications only show Ms. Duran questioning why certain information, such as where explosive maga- zines were stored on an airplane, was missing from an in- spection completed by her coworker. See Appx. 2029–33. 2029–33. Thus, Ms. Duran failed to establish that she rea- sonably believed that she was disclosing any of the circum- stances covered by section 2302(b)(8). Ms. Duran alternatively argues that she believed these deficiencies were a public safety issue, and thus a protected disclosure under section 2302(b)(8), because it could “result in subpar reports that could expose the Agency to liability and scru- tiny by Congress,” and “failure to have the Federal Explo- sives Permittee properly store explosive materials . . . could have resulted in grave injury to the public.” Pet. Br. 28. But these bare assertions that she claims were mat- ters of public safety do not “concern[ ] specific allegations or evidence either of actual past harm or of detailed circum- stances giving rise to a likelihood of impending harm,” which is required for disclosures of dangers to public health or safety to warrant protection under the whistleblower protection laws. Chambers v. Dep’t of Interior, 602 F.3d 1370, 1376 (Fed. Cir. 2010). Ms. Duran was not required to identify a particular statutory or regulatory provision that 10 DURAN v. DOJ she believed was violated if her “statement and the circum- stances surrounding the making of those statements clearly implicate[d] an identifiable violation of law, rule, or regulation.” Langer v. Dep’t of Treasury, 265 F.3d 1259, 1266 (Fed. Cir. 2001). However, because Ms. Duran’s al- leged disclosures fail to clearly implicate an identifiable vi- olation of law, rule, or regulation, or a matter of public safety, we agree with the Board’s determination that she failed to make a nonfrivolous allegation that she made a protected disclosure.

Ms. Duran’s purported disclosure of a violation of the FMLA to the EEOC fares no better. She argues that she disclosed to the EEOC that the agency’s request for addi- tional medical information was a violation of the FMLA amounting to a violation of law, rule, or regulation. But Ms. Duran does not provide any evidence detailing these purported interactions, such as when the communications occurred, to meet her burden of proving that she made a protected disclosure under section 2302(b)(8). See Whitmore v. Dep’t of Lab., 680 F.3d 1353, 1367 (Fed. Cir. 2012) (explaining that, once the agency proves its case for removal, a former employee has the burden of proving by a preponderance of the evidence that he or she made a pro- tected disclosure under the WPA to establish a prima facie case of reprisal for whistleblowing). Thus, we affirm the Board’s conclusion that Ms. Duran fails to prove her af- firmative defense of reprisal for whistleblowing.

III

We have considered Ms. Duran’s remaining arguments and find them unpersuasive. For the foregoing reasons, we affirm the final decision of the Board.

AFFIRMED COSTS

No costs.