Kathyo T. Sanicola v. Department of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
KATHYO T. SANICOLA,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2026-1232
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-1221-24-0252-W-1.
______________________
Decided: June 9, 2026
______________________
K ATHYO T OKIE S ANICOLA, Smyrna, TN, pro se.
D ANIEL H OFFMAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by ALBERT S.
I AROSSI, P ATRICIA M. MCCARTHY , BRETT SHUMATE.
______________________
Before T ARANTO, BRYSON, and CUNNINGHAM , Circuit
Judges.
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SANICOLA v. DVA 2
P ER CURIAM .
Kathyo Sanicola worked as a Supply Technician for the
United States Department of Veterans Affairs (VA or
agency) in Saginaw, Michigan. During her probationary
period, Ms. Sanicola drove a government-issued vehicle.
VA policy required that Ms. Sanicola not commit traffic vi-
olations while driving the vehicle, and she was aware that
VA electronically monitored her use of the vehicle to ensure
compliance with that policy. In 2023, VA terminated Ms.
Sanicola’s employment during her probationary period
based on multiple speeding violations.
Ms. Sanicola contested her termination, alleging that
she was terminated in retaliation for making certain pro-
tected disclosures to supervisors. After exhausting her ad-
ministrative remedies for such whistleblowing complaints,
she appealed to the Merit Systems Protection Board. A
Board-assigned administrative judge (AJ), after concluding
that Ms. Sanicola established a prima facie case of whistle-
blowing retaliation for two disclosures, rejected her claim
on the ground that VA proved by clear and convincing evi-
dence that it would have terminated her even in the ab-
sence of those disclosures. Sanicola v. Department of
Veterans Affairs, No. CH-1221-24-0252-W-1, 2025 WL
3241099 (M.S.P.B. Sept. 30, 2025) (Decision). That deci-
sion became the final Board decision. We now affirm the
decision.
I
A
Ms. Sanicola began her employment as a Supply Tech-
nician in July 2023 and became a member of the Medical
Supply Distribution team. S. Appx. 35–36, 55, 216–17.1
1 “S. Appx.” refers to the supplemental appendix
submitted with the government’s brief.
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SANICOLA v. DVA 3
Her employment was subject to a two-year probationary
period. S. Appx. 55. As part of her job within the Medical
Supply Distribution team, Ms. Sanicola drove a VA-issued
vehicle equipped with telematics technology for monitoring
vehicle operations, including speed, and sending collected
data to Ms. Sanicola’s supervisors. See S. Appx. 216, 171.
In August 2023, Ms. Sanicola signed a “Statement of
Understanding For Government Vehicle Usage,” memori-
alizing that she understood that her vehicle was equipped
with telematics technology and verifying that she would
“[o]bey” traffic laws. S. Appx. 48. She also completed
driver safety trainings related to the use of government ve-
hicles. See S. Appx. 51–54.
In the ensuing two months, Ms. Sanicola’s vehicle re-
ported four speeding incidents to her supervisors. See S.
Appx. 29, 31, 46, 47. Consistent with agency policy, after
her supervisors received notifications of her first and sec-
ond speeding incidents, both of which occurred on the same
day, the agency counseled Ms. Sanicola against speeding.
See S. Appx. 41, 43. After Ms. Sanicola’s third and fourth
speeding incidents, and still during her probationary pe-
riod, a supervisor recommended that Ms. Sanicola’s em-
ployment be terminated based on misuse of a government
vehicle. See S. Appx. 12–15. VA terminated her employ-
ment effective October 13, 2023. S. Appx. 12.
B
Ms. Sanicola then challenged the termination under
laws providing protections for whistleblowing. She began
by filing a complaint with the Office of Special Counsel
(OSC) alleging that the termination was in retaliation for
her making certain disclosures protected under 5 U.S.C.
§ 2302(b)(8). See S. Appx. 104. She alleged that she had
reported unprofessional conduct in the workplace as well
as her colleagues’ disregard of certain agency policies and
procedures. See id. OSC closed its investigation without
finding whistleblower reprisal, id., and Ms. Sanicola
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SANICOLA v. DVA 4
appealed to the Board, seeking corrective action, see Deci-
sion, at 1.2
The Board-assigned AJ found that Ms. Sanicola had ex-
hausted her administrative remedies and made nonfrivo-
lous jurisdictional allegations that at least one protected
disclosure was a contributing factor in her termination; on
that basis, the AJ ordered a hearing. See Decision, at 5; S.
Appx. 95. The hearing order obligated Ms. Sanicola to
identify each alleged protected disclosure. See S. Appx. 95–
97. After the record closed, the AJ reviewed Ms. Sanicola’s
eight alleged protected disclosures. See Decision, at 5–17.
The alleged disclosures varied in substance but generally
asserted potential violations of agency policies and prob-
lems stemming from interpersonal conflicts. See Decision,
at 5–7.
In an initial decision, the AJ proceeded through the
steps of a whistleblowing analysis. The AJ first concluded
that Ms. Sanicola showed the existence of two protected
disclosures: (1) a July 2023 written statement alleging that
her colleagues used profanity in the workplace; and (2) a
September 2023 disclosure of the location of a refrigerator
in violation of agency storage regulations. See Decision, at
7–11. Moreover, because certain supervisors involved in
the decision to terminate Ms. Sanicola’s employment were
aware of both disclosures, the AJ determined that relevant
officials had knowledge of her disclosures at the time of her
termination, which sufficed for an inference that those two
disclosures contributed to the termination. See id. The AJ
then found, however, that VA proved by clear and convinc-
ing evidence that it would have terminated Ms. Sanicola’s
employment for her “multiple speeding infractions” in vio-
lation of agency directives even in the absence of her
2 We give the native page numbers on the Board’s
decision as it appears in the supplemental appendix.
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SANICOLA v. DVA 5
protected disclosures. Id. at 23. The AJ therefore denied
Ms. Sanicola corrective action. Id. at 24.
Ms. Sanicola did not seek full Board review, and the
initial decision became the Board’s final decision in Novem-
ber 2025. See id.; S. Appx. 3. We therefore refer to the
initial decision as the Board’s. Ms. Sanicola timely peti-
tioned our court for review. We have jurisdiction to review
the Board’s final decision pursuant to 28 U.S.C.
§ 1295(a)(9).
II
A
We may set aside the Board’s decision only if 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). We review the Board’s legal determina-
tions without deference and its underlying findings of fact
for substantial-evidence support. See McIntosh v. Depart-
ment of Defense, 53 F.4th 630, 638 (Fed. Cir. 2022). Sub-
stantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Consolidated Edison Co. of New York v. National Labor Re-
lations Board, 305 U.S. 197, 229 (1938).
In seeking corrective action for alleged whistleblower
reprisal, Ms. Sanicola had to show that she made a pro-
tected disclosure under 5 U.S.C. § 2302(b)(8) and that the
protected disclosure was a contributing factor in the
agency’s decision to take a personnel action, such as termi-
nation, specified in 5 U.S.C. § 2302(a)(2)(A). See 5 U.S.C.
§ 1221(e)(1); Cahill v. Merit Systems Protection Board, 821
F.3d 1370, 1373 (Fed. Cir. 2016). A disclosure is protected
if the complainant “reasonably believes” that it evidences
“(i) any violation of any law, rule, or regulation, or (ii) gross
mismanagement, a gross waste of funds, an abuse of
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SANICOLA v. DVA 6
authority, or a substantial and specific danger to public
health or safety.” 5 U.S.C. § 2302(b)(8). A complainant can
demonstrate that a protected disclosure was a contributing
factor in a personnel action, under the “knowledge/timing”
test, by showing the decisionmaker’s knowledge of the dis-
closure and a given temporal relationship between the pro-
tected disclosure and the personnel action. See Kewley v.
Department of Health & Human Services, 153 F.3d 1357,
1362 (Fed. Cir. 1998).
Where, as here, the complainant makes the showings
just described, relief is nevertheless to be denied if the
agency demonstrates by clear and convincing evidence that
it would have taken the same personnel action even in the
absence of the protected disclosure. See 5 U.S.C.
§ 1221(e)(2); Miller v. Department of Justice, 842 F.3d
1252, 1257 (Fed. Cir. 2016). In performing this analysis,
the adjudicator is to consider, but is not limited to, factors
outlined in Carr v. Social Security Administration, which
include: “[1] the strength of the agency’s evidence in sup-
port of its personnel action; [2] the existence and strength
of any motive to retaliate on the part of the agency officials
who were involved in the decision; and [3] any evidence
that the agency takes similar actions against employees
who are not whistleblowers but who are otherwise simi-
larly situated.” 185 F.3d 1318, 1323 (Fed. Cir. 1999).
B
Ms. Sanicola’s arguments on appeal fall into essen-
tially two categories. First, she argues that the Board, in
denying her relief, overlooked or incorrectly found certain
facts. Second, she argues that the Board committed legal
error to the extent that it relied on a particular Veterans
Affairs Directive to establish her violation of the agency’s
speeding rules.
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SANICOLA v. DVA 7
1
Ms. Sanicola suggests that the Board failed to consider
several relevant facts in making its decision. See Sanicola
Informal Br. at 2 (Ms. Sanicola selected “yes” to the ques-
tion “[d]id the MSPB or arbitrator incorrectly decide or fail
to take into account any facts?”).3 But her brief does not
identify any fact that the Board failed to consider. See id.
at 4–19. Her brief recites the same grievances that she
presented to the Board in a substantially identical way.
See id.; S. Appx. 100–03. The Board carefully addressed
each of Ms. Sanicola’s alleged protected disclosures and, in
fact, found in her favor at certain steps of the whistleblow-
ing analysis for two disclosures. See Decision, at 7–17.
Ms. Sanicola’s arguments that the Board erred in cer-
tain factual findings fare no better. Our standard of review
is a limited one, as described above. Ms. Sanicola’s argu-
ments amount to a request for us to reweigh the evidence
and find in her favor, which we may not do under the sub-
stantial-evidence standard of review. See Sanicola Infor-
mal Br. at 2, 4–19; Jones v. Department of Health & Human
Services, 834 F.3d 1361, 1369 (Fed. Cir. 2016). The Board
could reasonably find that VA would have terminated Ms.
Sanicola’s employment, because of her repeated speeding,
even in the absence of her protected disclosures.
2
Ms. Sanicola argues that the Board erred by accepting
the agency’s reliance on telematic speed data, rather than
on her Michigan driving record, to determine if she violated
agency speeding rules. See Sanicola Informal Br. at 2, 4–
9, 17. We see no reversible error on this ground.
3 We give the page numbers associated with the PDF
version of Ms. Sanicola’s brief. See ECF No. 11.
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SANICOLA v. DVA 8
When Ms. Sanicola asserts that she was “not caught
speeding based on Michigan state traffic laws,” Sanicola
Informal Br. at 9, she might be suggesting that VA could
not lawfully find misconduct from proven or conceded
speeding, because state or local officials did not catch it.
She cites, and we see, no basis for such a suggestion. Here,
the Board recognized that Ms. Sanicola’s speeding citations
at the agency were based on telematic notifications, not on
her having been “caught” in a way that appeared on her
state driving record. See Decision, at 19. And, as the Board
noted, Ms. Sanicola acknowledged that her supervisors re-
ceived telematics-based reports of her speeding incidents.
See id. at 20 (citing S. Appx. 105 (Ms. Sanicola acknowledg-
ing that her supervisors received notifications regarding
her excessive speed)).
Ms. Sanicola separately suggests that any reliance by
the Board on the agency’s data was legal error because the
agency improperly enforced its Directive 0637 in violation
of a revoked executive order cited by that Directive. See id.
at 16–17; S. Appx. 146–71 (VA Directive 0637 referring to
Executive Order 14057); Executive Order 14148, Initial Re-
scissions of Harmful Executive Orders and Actions, 90 Fed.
Reg. 8237, 8239 (Jan. 20, 2025) (revoking Executive Order
14057). We agree with the Board, however, that the exec-
utive order cited by Veterans Affairs Directive 0637 “does
not purport to limit agencies’ use of telematics data to mon-
itor employee driving behavior.” Decision, at 17. Instead,
that executive order, now revoked, pertains to clean energy
requirements for agency vehicles. See S. Appx. 150–56 (Di-
rective 0637 referencing Executive Order 14057’s clean en-
ergy standards for government vehicles); Government
Response Br. at 16. We therefore conclude that Ms. Sani-
cola has failed to show that the Board’s reliance on Di-
rective 0637 (to establish that Ms. Sanicola violated agency
speeding rules) was “arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 7703(c).
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SANICOLA v. DVA 9
Ms. Sanicola does not argue that the Board improperly
applied 5 U.S.C. § 2302(b)(8) to determine which of her
specified disclosures was legally protected. Nor does she
contend that the Board failed to establish the agency’s in-
dependent reason for terminating her employment by fail-
ing to evaluate the Carr factors. We thus see no reason to
disturb the Board’s analysis.
III
We have considered Ms. Sanicola’s remaining argu-
ments and find them unpersuasive. For the foregoing rea-
sons, we affirm the Board’s decision.
The parties shall bear their own costs.
AFFIRMED
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