Frericks v. Department of the Navy: Tenth Circuit Clarifies that Motive and Timing May Inform “Reasonable Belief” Under the WPA and Endorses Disclosure-by-Disclosure Contributing-Factor Analysis

Introduction

In this MSPB review proceeding, the U.S. Court of Appeals for the Tenth Circuit affirmed the removal of a long-serving Navy civilian employee, Lonnie Frericks, rejecting his Whistleblower Protection Act (WPA) retaliation claims. The case arises from a series of workplace conflicts culminating in a 2020 removal decision by the Naval Surface Warfare Center Indian Head’s Explosive Ordnance Disposal Department. After a three-day evidentiary hearing, the MSPB sustained the removal. On appeal, Mr. Frericks focused solely on his WPA reprisal claims, with several whistleblower-support organizations appearing as amici.

The opinion provides a substantial, if nonprecedential, clarification in two areas:

• It explains that while employee motive and timing cannot strip a disclosure of protection merely because of motive, those factors may be considered as part of an objective, contextual assessment of whether the employee had a “reasonable belief” that the disclosure evidenced wrongdoing (harmonizing 5 U.S.C. § 2302(f)(1) with Lachance v. White).
• It signals approval of a disclosure-by-disclosure approach to the “contributing factor” analysis under the WPA’s burden-shifting framework, grounded in the statute’s text, even though the court ultimately affirmed on the agency’s clear-and-convincing showing under the Carr factors.

The case thus reinforces the decisive role of Administrative Judge (AJ) credibility determinations and the employer’s ability to carry the clear-and-convincing burden through Carr’s three-factor test, even where some protected activity is present.

Summary of the Opinion

Exercising jurisdiction under 5 U.S.C. § 7703(b)(1)(B), the Tenth Circuit affirmed the MSPB’s final order sustaining the Navy’s removal. The court:

• Upheld the Board’s conclusion that two alleged disclosures were not protected:
  • Disclosure Four (a hallway question to a coworker about breaking a 3D printer) failed to “clearly identify” a rule violation and was too vague to be protected.
  • Disclosure Six (an email mentioning a supervisor’s fishing during a work trip) was not supported by a reasonable belief of wrongdoing; although motive/timing cannot negate protection per se, they may inform whether the belief was reasonable in context.
• Agreed that the remaining protected activities did not, except one, contribute to the removal; and clarified that, even assuming one disclosure (safety complaints about noxious fumes) was a contributing factor, the Navy proved by clear and convincing evidence that it would have taken the same action anyway, applying the Carr factors.
• Deferred heavily to the AJ’s credibility findings favoring the agency’s witnesses, especially the deciding official and the supervisor, and against Mr. Frericks.
• Rejected arguments premised on a decade-long reference in the removal notices as purported “direct evidence” of retaliatory reliance on past protected activity.
• Explained in a footnote why a “holistic” contributing-factor approach is not compelled by the WPA’s text, which speaks in terms of whether “a” protected disclosure was a contributing factor; and noted that the Board considered the overall record in any event.

Case Background

After honorable active-duty service, Mr. Frericks joined the Navy’s EOD department as a civilian in 2008. He raised concerns over:

• Alleged misuse of Improvised Nuclear Device (IND) project funds (including participation in an NCIS inquiry),
• Historic disposal of beryllium tools in a creek,
• Workplace safety conditions (noxious fumes from construction),
• And later alleged timekeeping improprieties by a supervisor.

The removal decision, issued in May 2020, referenced three 2019 incidents: an altercation with a coworker over a 3D printer (January); two confrontations with another coworker during a safety dispute about ventilation amid fumes (June); and alleged aggressive conduct during a project discussion with a supervisor (October). Management also noted that multiple employees said he exhibited characteristics of an “active shooter,” and that his workplace interactions had a longstanding pattern of intimidation and disruption.

The AJ found the Navy proved its charge of unacceptable conduct by a preponderance of the evidence; found some but not all alleged disclosures protected; and concluded that the Navy would have removed him even absent the protected safety disclosure, under the Carr clear-and-convincing standard. The Board largely agreed and clarified that the safety disclosure was a contributing factor, but that the Navy still met its clear-and-convincing burden. The Tenth Circuit affirmed.

Analysis

Precedents Cited and Their Role

• Standards of Review and Deference:
  • Lockheed Martin Corp. v. ARB, 717 F.3d 1121 (10th Cir. 2013); Baca v. Dept. of the Army, 983 F.3d 1131 (10th Cir. 2020): MSPB decisions are affirmed unless arbitrary/capricious or unsupported by substantial evidence; legal questions de novo; strong deference to credibility determinations.
  • Purifoy v. DVA, 838 F.3d 1367 (Fed. Cir. 2016); Pope v. USPS, 114 F.3d 1144 (Fed. Cir. 1997): Emphasis on AJ’s proximity to witness demeanor; appellate courts do not reweigh credibility absent improbability or contradiction by undisputed fact.
  • Trimmer v. DOL, 174 F.3d 1098 (10th Cir. 1999): Substantial evidence does not permit courts to displace the Board’s choice between fairly conflicting views.
• WPA Framework and Protected Disclosures:
  • Campbell v. Dept. of the Army, 123 M.S.P.R. 674 (2016): Sets the WPA burden-shifting sequence (agency proves charge; employee shows protected disclosure and contributing factor; agency rebuts by clear and convincing evidence).
  • Bradley v. DHS, 123 M.S.P.R. 547 (2016); Scoggins v. Army, 123 M.S.P.R. 592 (2016): “Reasonable belief” is assessed objectively—what a disinterested observer could conclude on known/ascertainable facts; an employee need not be right, only reasonable.
  • Salerno v. Interior, 123 M.S.P.R. 230 (2016): Protected disclosures must be specific and detailed; vague allegations are insufficient.
  • Lachance v. White, 174 F.3d 1378 (Fed. Cir. 1999): Motive does not defeat protection per se, but personal bias/self-interest may be considered in assessing the reasonableness/persuasiveness of the asserted belief. The Tenth Circuit uses this to harmonize with 5 U.S.C. § 2302(f)(1).
  • Ramos v. Treasury, 72 M.S.P.R. 235 (1996): Pure speculation cannot constitute a reasonable belief of wrongdoing.
• Contributing Factor and Carr Clear-and-Convincing Analysis:
  • Mastrullo v. DOL, 123 M.S.P.R. 110 (2015): Contributing factor can be shown with direct or circumstantial evidence; low threshold.
  • Carr v. SSA, 185 F.3d 1318 (Fed. Cir. 1999): Three nonexclusive factors for clear-and-convincing analysis—strength of evidence; motive of decision-makers; comparator evidence.
  • Whitmore v. DOL, 680 F.3d 1353 (Fed. Cir. 2012); Smith v. GSA, 930 F.3d 1359 (Fed. Cir. 2019): Clear-and-convincing is a high standard; consider all pertinent evidence in the aggregate.
  • Miller v. DOJ, 842 F.3d 1252 (Fed. Cir. 2016); Biswas v. DVA, 127 F.4th 332 (Fed. Cir. 2025): Clear and convincing means an “abiding conviction” that the truth is highly probable; the Tenth Circuit quotes Biswas’s articulation.
  • Rickel v. Navy, 31 F.4th 1358 (Fed. Cir. 2022): Comparator analysis requires similarly situated employees under similar circumstances.
  • English v. MSPB, 2023 WL 8851292 (10th Cir. 2023): The Tenth Circuit’s recent, persuasive guidance on WPA/Carr analysis; also cited here for the standard of deference.
• Other Doctrinal Anchors:
  • Champagne Metals v. Ken-Mac, 458 F.3d 1073 (10th Cir. 2006): Defines “direct evidence” as evidence that requires no inferential step—used to reject the argument that decade-long references in the removal notices were direct evidence of retaliatory reliance.
  • Valdez v. Macdonald, 66 F.4th 796 (10th Cir. 2023): Underdeveloped or conclusory arguments are waived on appeal.

Legal Reasoning

1) Protected Disclosure Status

The court affirmed the MSPB’s conclusion that two items were not protected disclosures:

• Disclosure Four (3D-printer hallway question): The question did not “clearly identify” a law/rule/regulation violation; at most it vaguely implied wrongdoing and relied on “informal authority” over the printer. Under Salerno, vagueness defeats protection.
• Disclosure Six (email mentioning the supervisor’s fishing): The AJ, crediting the supervisor’s testimony, found that the claim of timecard/travel fraud surfaced only after the proposed removal and rested on speculation. Crucially, while 5 U.S.C. § 2302(f)(1)(C), (G) prevents disqualifying disclosures solely because of motive or timing, the court endorsed considering motive and timing as context for evaluating whether a belief was objectively reasonable, consistent with Lachance.

2) Contributing Factor

For earlier protected activities involving IND funds, the beryllium-tool issue, and EEO activity, the court found no substantial evidence of causal contribution to the 2020 removal. The deciding official testified credibly that the 2019 incidents drove her decision and that earlier conduct was only “background” putting the employee on notice. The MSPB’s reliance on those credibility determinations was entitled to “great deference.”

The Board did find that the noxious-fumes safety complaint may have contributed, but the agency carried the day under Carr’s clear-and-convincing standard.

3) Clear and Convincing under Carr

• Factor 1: Strength of the Agency’s Evidence
  • The MSPB found strong, corroborated evidence of January, June, and October 2019 incidents and a pattern of increasingly aggressive behavior. Where testimony conflicted, the AJ’s well-explained credibility findings favored the agency witnesses. On appeal, challenges to the AJ’s weighing of evidence and credibility failed under the deferential substantial-evidence standard.
• Factor 2: Motive of the Decision-Makers
  • Any potential retaliatory motive was slight. Critically, Carr focuses on decision-makers’ motives, not those of coworkers. The deciding official credibly testified that protected activity did not influence her decision, and that she relied on the 2019 conduct. The record, viewed as a whole, did not undermine that conclusion.
• Factor 3: Comparators
  • No similarly situated comparators were identified. Given testimony that no other employee exhibited the same kind, level, or repetition of conduct, comparator evidence was not significant. Under Whitmore, absence of Carr factor three evidence does not preclude a clear-and-convincing finding.

Aggregating all pertinent evidence, the court concluded that the Navy met the high clear-and-convincing burden to show it would have removed Mr. Frericks even if a protected disclosure contributed to the decision.

Key Doctrinal Clarifications and Their Significance

• Reasonable Belief and the Role of Motive/Timing
  • Post-WPEA § 2302(f)(1) provides that a disclosure is not excluded from protection because of the employee’s motive or the timing. The court harmonizes this with Lachance by drawing a line: motive/timing cannot serve as a categorical bar, but they remain relevant as circumstantial context for whether the “reasonable belief” standard is satisfied. This matters where the record suggests post hoc accusations, inconsistencies, and self-interest undermine objective reasonableness.
• Disclosure-by-Disclosure Contributing-Factor Review
  • While the court did not need to definitively resolve the issue, its footnote offers text-based support for assessing whether “a” (i.e., each) disclosure was “a contributing factor in the personnel action” (5 U.S.C. § 1221(e)(1)), rather than compelling a unitary, holistic analysis. Practically, this endorses the MSPB’s established method of parsing each disclosure while still considering the record as a whole.
• Deference to AJ Credibility Determinations
  • The opinion exemplifies the substantial-evidence standard’s restraint. Where the AJ explains credibility determinations—demeanor, consistency, lack of bias—the appellate court will not re-weigh witness credibility absent improbability or contradiction by undisputed facts.
• Comparator Evidence Often Proves Elusive
  • Comparator analysis under Carr is narrow. Employees involved in the same episodes are not necessarily “similarly situated” if the quality, level, and repetition of conduct differ. Where no true comparator exists, the third Carr factor drops out of the analysis.

Impact and Practical Implications

• For Whistleblowers and Counsel
  • Specificity matters. Vague workplace complaints framed as “shop rules” without clear, codified standards, and post hoc allegations lacking contemporaneous support, will struggle to qualify as protected disclosures.
  • Document contemporaneously. If alleging timecard/travel fraud, ensure contemporaneous reporting and documentary anchors. Delayed, after-the-fact assertions will face skepticism in the “reasonable belief” analysis.
  • Anticipate AJ credibility headwinds. WPA cases often turn on witness credibility; counsel should prepare direct, consistent testimony and address demeanor concerns head-on.
• For Agencies
  • Clear-and-convincing is achievable. Strong, well-documented evidence of workplace misconduct; consistent, bias-free testimony by decision-makers; and reasoned application of Carr can defeat WPA claims even when some protected activity exists.
  • Isolate the basis for action. Decision-makers should contemporaneously record that older conduct is used as background/notice and that the action is grounded in specific, recent incidents.
• For the MSPB
  • The Tenth Circuit’s analysis supports continuing the disclosure-by-disclosure “contributing factor” assessment, consistent with statutory text and Board practice, while considering the entire record for the Carr phase.
• Precedential Weight
  • Although issued as a nonprecedential order and judgment, the opinion adds persuasive weight in the Tenth Circuit for:
    • Using motive and timing as part of the reasonable-belief context (not as per se disqualifiers), and
    • Accepting a disclosure-specific approach to the contributing-factor inquiry under § 1221(e)(1).

Complex Concepts Simplified

• Whistleblower Protection Act (WPA): A federal statute (5 U.S.C. § 2302(b)(8)) that prohibits retaliation against federal employees for protected disclosures of certain categories of wrongdoing (e.g., legal violations, gross mismanagement, waste, abuse of authority, specific dangers to public health/safety).
• Protected Disclosure: A disclosure the employee reasonably believes evidences covered wrongdoing. The “reasonable belief” is objective and assessed from the perspective of a disinterested observer familiar with the facts.
• Contributing Factor: A low threshold showing that the protected disclosure played any role—directly or indirectly—in the personnel action. It can be shown through timing, knowledge, or other circumstantial evidence.
• Clear and Convincing Evidence: A high standard requiring evidence that makes it highly probable the agency would have taken the same action even without the protected disclosure. Agencies meet this through the Carr factors.
• Carr Factors: A triad used to assess the agency’s clear-and-convincing case:
  • Strength of the evidence supporting the action,
  • Motive to retaliate by decision-makers, and
  • Comparator evidence (how similarly situated non-whistleblowers are treated).
• MSPB and AJ: The Merit Systems Protection Board adjudicates appeals of certain personnel actions. Administrative Judges conduct hearings, make credibility findings, and issue initial decisions. Their credibility determinations receive strong deference on review.
• Substantial Evidence Review: An appellate standard requiring only that the Board’s findings are supported by “such relevant evidence as a reasonable mind might accept.” It does not permit reweighing of conflicting evidence when the Board’s view is plausible.

Conclusion

Frericks v. Department of the Navy is a robust reaffirmation of two enduring features of federal whistleblower litigation. First, agencies can still prevail—decisively—on the clear-and-convincing prong by building a coherent, well-documented record of misconduct and by presenting credible, unbiased decision-maker testimony. Second, employees must anchor their disclosures in specific, contemporaneously supported facts that would lead a reasonable, disinterested observer to believe wrongdoing occurred; motive and timing, though not dispositive, can undermine the reasonableness of that belief when the overall record suggests speculation or self-interest.

The court’s footnote offers a textual rationale for assessing “contributing factor” on a disclosure-by-disclosure basis, while the main analysis harmonizes § 2302(f)(1)’s motive/timing protections with Lachance’s recognition that those very factors may inform the objective “reasonable belief” inquiry. Together, these points—backed by strong deference to AJ credibility findings—shape a pragmatic, evidence-centered roadmap for future WPA cases in the Tenth Circuit and beyond.