Filed: Apr. 15, 2015
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RAM CHATURVEDI, DOCKET NUMBER Appellant, DA-1221-11-0471-W-4 v. DEPARTMENT OF VETERANS DATE: April 15, 2015 AFFAIRS, Agency. THIS FINAL ORDER IS NO NPRECEDENTIAL 1 Stephen M. Kohn, Esquire, Washington, D.C., for the appellant. Kenneth S. Carroll, Dallas, Texas, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review and the agency has filed a cross petition f
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD RAM CHATURVEDI, DOCKET NUMBER Appellant, DA-1221-11-0471-W-4 v. DEPARTMENT OF VETERANS DATE: April 15, 2015 AFFAIRS, Agency. THIS FINAL ORDER IS NO NPRECEDENTIAL 1 Stephen M. Kohn, Esquire, Washington, D.C., for the appellant. Kenneth S. Carroll, Dallas, Texas, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review and the agency has filed a cross petition fo..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAM CHATURVEDI, DOCKET NUMBER
Appellant, DA-1221-11-0471-W-4
v.
DEPARTMENT OF VETERANS DATE: April 15, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Stephen M. Kohn, Esquire, Washington, D.C., for the appellant.
Kenneth S. Carroll, Dallas, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review and the agency has filed a cross
petition for review of the initial decision, which denied corrective action in the
appellant’s individual right of action (IRA) appeal. Generally, we grant petitions
such as these only when: the initial decision contains erroneous findings of
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
judge’s rulings during either the course of the appeal or the initial decision were
not consistent with required procedures or involved an abuse of discretion, and
the resulting error affected the outcome of the case; or new and material evidence
or legal argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that
neither party has established any basis under section 1201.115 for granting the
petition or cross petition for review. Therefore, we DENY the petition for review
and the cross petition for review and AFFIRM the initial decision, which is now
the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 On September 30, 2007, the agency appointed the appellant to a Physician
position under a temporary appointment not to exceed September 29, 2010, in the
Interventional Radiology Department (IR) at the North Texas Health Care
System. W-1 File, 2 Tab 5, Subtab 4b. Effective January 20, 2010, the agency
terminated his appointment before its scheduled expiration date based on seven
allegations of misconduct. W-1 File, Tab 5, Subtabs 4, 4c-4d.
¶3 After exhausting his administrative remedies with the Office of Special
Counsel, the appellant filed this appeal. The administrative judge convened a
hearing and issued an initial decision that found that the appellant established
jurisdiction over the appeal and proved that he made protected disclosures that
were a contributing factor in a personnel action. Initial Decision (ID) at 14-21.
She determined, however, that the agency established by clear and convincing
2
Th is appeal was dismissed without prejudice three times. The file for MSPB Docket
No. DA-1221-11-0471-W-1 will be referred to as the W-1 File. The labels “W-2 File”
and “W-3 File” refer to the files in MSPB Docket Nos. DA-1221-11-0471-W-2 and DA-
1221-11-0471-W-3, respectively. The term “Initial Decision” refers to the initial
decision issued on March 28, 2014, under MSPB Docket No. DA-1221-11-0471-W-4.
3
evidence that it would have taken the same personnel actions absent any protected
whistleblowing. ID at 21-34. The appellant petitions for review of the initial
decision 3 and the agency cross petitions for review. PFR File, Tabs 4, 8. We
address the appellant’s petition for review first.
¶4 The administrative judge determined that four personnel actions were at
issue in this appeal: the termination of the appellant’s appointment on
January 20, 2010; his negative performance evaluation in October 2009; and “the
agency’s disciplinary actions,” which appear to refer to a written counseling in
August 2009, and a proposed letter of reprimand, never effected, in
September 2009. ID at 13-14; see W-1 File, Tab 1, Subtabs 3-4, 8, 11. The
agency presented evidence that other employees at the appellant’s duty station
raised a steady stream of complaints about his attitude towards them, particularly
towards nurses 4 and other “subordinates,” and about his interactions with
patients. W-1 File, Tab 14, Subtab 15; HT at 151-52. Dr. M.G., Service Chief of
Radiology and the appellant’s first-level supervisor, testified that he spoke with
the appellant about this and issued the written counseling in August 2009, when
the appellant’s behavior did not improve. HT at 153, 189-92; W-2 File, Tab 9,
Subtabs 11, 24. Dr. M.G. also testified that he proposed to reprimand the
appellant in September 2009, when the appellant took leave without obtaining
approval from a supervisor. HT at 68-72; W-2 File, Tab 9, Subtab 14. Dr. M.G.
never issued the proposed reprimand.
¶5 Dr. M.G. testified that he gave the appellant a negative rating in
October 2009, based on the appellant’s performance under the performance
3
The appellant also submits extensive excerpts from the hearing transcript. Petition for
Review (PFR) File, Tab 3. We have not considered this submission because the record
includes a complete copy of the transcript. Evidence that is already a part of the record
is not new. Meier v. Department of the Interior, 3 M.S.P.R. 247, 256 (1980).
4
Dr. M.G., Service Chief of Radiology, testified that the appellant “had berated
[nurses] publically in front of patients” for the issues he raised in h is protected
disclosures. Hearing Transcript (HT) at 39-40.
4
standard relating to “Personality, Team Player, and Ethical Standards” because of
the appellant’s inability to get along with his coworkers or to improve his
interpersonal relationships despite repeated attempts to address concerns about
the appellant’s behavior towards others in the hospital. HT at 212; W-3 File,
Tab 14 at 35-36. He explained that he had rated the appellant more positively in
this critical element in past years because he tended to be lenient, but his
supervisors had instructed him to reduce the leniency of his grading to afford
greater weight to the more important critical elements and to “increase the
spread” of ratings among employees. HT at 92-93.
¶6 Dr. M.G. testified that he requested to terminate the appellant early
because: his negative interactions with staff continued; Dr. M.G. had received
complaints from several other physicians who no longer wished to refer their
patients to the appellant; one employee requested a transfer out of the department
because of the appellant’s behavior and another threatened to involve his union in
the conflict between the appellant and staff; nurses complained about the
appellant’s apparent indifference to or disregard for pain suffered by patients
during his procedures; several patients did not want the appellant to perform their
procedures; and the appellant received very poor evaluations from resident
doctors. 5 HT at 94-110, 154, 215-34, 236-54; W-1 File, Tab 5, Subtabs 4e-4n;
W-2 File, Tab 9, Subtabs 35-40; W-3 File, Tab 14 at 100, 114-20.
¶7 When an appellant shows by preponderant evidence that he made a
protected disclosure which was a contributing factor in the decision to take a
personnel action, the Board will order corrective action unless the agency shows
by clear and convincing evidence it would have taken the same action absent any
whistleblowing. Aquino v. Department of Homeland Security, 121 M.S.P.R. 35,
¶ 25 (2014). Clear and convincing evidence “is that measure or degree of proof
5
In fact, after receiving a poor evaluation from an anonymous resident, the appellant
inquired as to what type of punitive action would be appropriate to prevent disgruntled
residents from retaliating against physicians. W-3 File, Tab 14 at 120; HT at 202-03.
5
that produces in the mind of the trier of fact a firm belief as to the allegations
sought to be established.” 5 C.F.R. § 1209.4(d). It is a higher standard than
preponderant evidence. Id.
¶8 In determining whether an agency has met its burden, the Board will
consider all of the relevant factors, including the following, which are known as
the Carr factors: (1) the strength of the agency’s evidence in support of its
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 similarly situated. Carr v. Social Security Administration,
185 F.3d 1318, 1323 (Fed. Cir. 1999); Parikh v. Department of Veterans Affairs,
116 M.S.P.R. 197, ¶ 36 (2011). The Board must consider all the pertinent record
evidence in making this determination, both evidence that supports the agency’s
case and evidence that detracts from it. See Whitmore v. Department of Labor,
680 F.3d 1353, 1368 (Fed. Cir. 2012); see also Rumsey v. Department of Justice,
120 M.S.P.R. 259, ¶ 30 (2013).
¶9 The agency presented extensive documentary evidence and hearing
testimony and, after considering both the agency’s and the appellant’s evidence,
the administrative judge determined that the agency met its clear and convincing
evidence burden. ID at 21-34. The administrative judge based her finding on
several factors. First, the agency’s evidence in support of its actions was strong
and was bolstered by the credibility of the agency’s witnesses and by the
appellant’s demeanor while testifying. ID at 31-32. Second, aside from the
evidence that satisfied the knowledge/timing test, there was no evidence of any
retaliatory motive. She found that the agency welcomed the appellant’s
complaints because it did not want to have bad nurses; it only needed more
specific facts so it could investigate the allegations and correct any problems it
discovered. ID at 32-33. She also found that the manager who allegedly
retaliated against the appellant gave him a positive performance rating and a
6
bonus after he began making his disclosures. ID at 33. Third, she found that
there was no evidence considering any similarly-situated employees. Id.
¶10 On review, the appellant contends that the administrative judge overlooked
impeachment evidence that undercut her finding that the agency had strong
evidence in support of its action. PFR File, Tab 4 at 22-23. The appellant
correctly points out that only one nurse, Nurse S.L., testified that he behaved
inappropriately towards IR nurses, and he argues that her testimony was based on
gossip and snooping and she was worried that she was going to get fired as a
result of his disclosures and thus had reason to be biased against him. PFR File,
Tab 4 at 22-23; HT at 340. The appellant asserts that all of the other witnesses
presented testimony that “completely impeached the [agency’s] allegation that
[the appellant’s] conduct towards the nurses was improper.” PFR File, Tab 4
at 23.
¶11 The administrative judge did not overlook the testimony to which the
appellant refers. She discussed it in the initial decision and implicitly found that
it did not undercut the agency’s evidence of the appellant’s improper behavior
towards the nurses in his own department. ID at 25-28. Doctor M.M., Doctor
V.V., and Technician J.T. testified that they had a high opinion of the appellant’s
clinical skills and professionalism, but they all worked in different departments
and had not observed how the appellant behaved towards the IR nurses. HT
at 320-28, 365-72, 376-87. Doctor N.E., one of the appellant’s former
supervisors, also had a high opinion of him and worked in the IR, but she
generally only knew about the end results of his procedures and not the means of
accomplishing the procedures or the details of what occurred during the
procedures. HT at 112-22. The fact that these witnesses did not observe if the
appellant engaged in objectionable behavior is entitled to little probative value
given that they had little opportunity and capacity to observe the events in
question. See McGowan v. Veterans Administration, 30 M.S.P.R. 221, 223 (1986)
(testimony of certain witnesses was not probative because they were not present
7
to witness the entire incident in question); see also Social Security Administration
v. Long, 113 M.S.P.R. 190, ¶¶ 33-34 (2010) (the opportunity to observe the event
in question is a factor in determining credibility) (citing Hillen v. Department of
the Army, 35 M.S.P.R. 453, 458 (1987)), aff’d, 635 F.3d 526 (Fed. Cir. 2011).
Moreover, the appellant’s own testimony does not outweigh the testimony of
Nurse S.L. because the administrative judge found that his testimony was not
credible. See McGowan, 30 M.S.P.R. at 223. The Board must give deference to
an administrative judge’s credibility determinations when they are based,
explicitly or implicitly, on the observation of the demeanor of witnesses
testifying at a hearing; the Board may overturn such determinations only when it
has “sufficiently sound” reasons for doing so. Haebe v. Department of Justice,
288 F.3d 1288, 1301 (Fed. Cir. 2002) . Here, the administrative judge explicitly
relied on witness demeanor as one of the factors in making her credibility
determinations. ID at 31-32. Thus, because the appellant has not proffered a
sufficiently sound reason for disturbing the administrative judge’s credibility
determinations, we must defer to them.
¶12 Dr. M.G. testified that, although he had been fielding ongoing complaints
about the appellant’s behavior for some time, “[T]he thing that broke the camel’s
back was the disregard for patients’—for severe patient pain.” HT at 258-59.
This statement refers to two incidents in December 2009. 6 One involved a patient
who suffered an allergic reaction to a dye the appellant injected during a
procedure. It appears that the appellant continued the procedure rather than
managing the patient’s reaction before continuing the procedure. HT at 215-34;
W-1 File, Tab 5, Subtabs 4e, 4h. In the second incident, when another patient,
Patient T., screamed in apparent pain during a procedure, the appellant continued
6
Dr. M.G. testified about several other sim ilar incidents during the same time period,
HT at 240-58, but these two incidents appear to be the most important in Dr. M.G.’s
decision to terminate the appellant’s appointment.
8
the procedure without attending to the patient’s pain. HT at 239-44; W-1, Tab 5,
Subtabs 4f, 4h-4j.
¶13 On review, the appellant asserts that the evidence in support of the agency’s
version of the two events that triggered his termination was weak, and was
entirely rebutted by his own testimony that his conduct of the procedures was
appropriate, ethical, and consistent with the highest standards of care. PFR File,
Tab 4 at 26. The appellant contended below that the patient was in no danger and
that he stopped the procedure and administered an antihistamine when the patient
reported “a little itch or whatever.” HT at 598-600. We find these arguments
unpersuasive. In fact, the record reflects that the patient’s throat had begun to
close. HT at 219; W-1 File, Tab 5, Subtabs 4e at 1, 4h at 2.
¶14 The appellant justified the second incident by stating that the patient was in
no danger, the procedure would not cause severe pain, and Patient T.’s screaming
was not necessarily related to any actual pain. HT at 587-92. Patient T. was an
elderly patient with dementia and he was known to scream with little provocation,
but his reputation for screaming does not mean he was incapable of feeling pain
and this was a painful procedure. HT at 240-41, 721. Patient T.’s protests during
the procedure were loud enough to upset patients waiting for their procedures in
the holding room. HT at 241; W-1 File, Tab 5, Subtabs 4j-4k. It is unclear how
the appellant could be so certain Patient T. was not experiencing any pain, 7 and
he does not appear to have considered the disruptive or downright frightening
effect on waiting patients. Dr. M.G. testified, “It’s inhumane to do a procedure
7
The appellant claimed for the first time during cross-examination that he administered
local anesthetic at the beginning of the procedure but merely failed to document it in
the medical record. HT at 719-27. However, in an affidavit submitted with his appeal
and in his testimony on direct examination, he stated that he had local anesthetic
administered at the end of the procedure when the patient’s incision was sewn shut; he
further stated that he made an intentional decision not to administer sedation or
anesthetic at the beginning of the procedure because he believed that the risks
outweighed the benefits. Compare HT at 490-92, with HT at 720; see HT at 737-38; see
also W-1 File, Tab 1, Subtab D at 3-4.
9
on an elderly demented person and—who is yelling loud enough to prevent
somebody else in the next-door room from having their procedure, and still
withhold the pain medication and the sedation.” HT at 244.
¶15 In any event, the administrative judge found that the appellant’s version of
events was not credible explicitly based, in part, on his demeanor. ID at 31-32.
Her findings are entitled to deference absent a “sufficiently sound” reason for
overturning them. See Haebe, 288 F.3d at 1301. The appellant has proffered no
such reason.
¶16 The appellant also alleges on review that the agency’s case against him is
weak because it relied primarily on hearsay evidence. PFR File, Tab 4 at 27-32.
It is well-settled law that relevant hearsay evidence is admissible in
administrative proceedings. Luten v. Office of Personnel Management,
110 M.S.P.R. 667, ¶ 12 (2009). The probative value of hearsay evidence may, in
appropriate circumstances, be outweighed by other evidence of record, including
an appellant’s hearing testimony. See Luten, 110 M.S.P.R. 667, ¶ 12; see also
Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83-87 (1981) (assessment of
the probative value of hearsay evidence necessarily depends on the circumstances
of each case). Hearsay must be evaluated on a case-by-case basis to determine if
it is inherently truthful and more credible than the evidence offered against it.
Vojas v. Office of Personnel Management, 115 M.S.P.R. 502, ¶ 13 (2011); Long,
113 M.S.P.R. 190, ¶ 27.
¶17 While the appellant is correct that the fact that much of the agency’s case
against him is based on hearsay evidence, which is generally entitled to less
weight than live testimony, we find that the administrative judge properly
afforded the hearsay evidence significant weight under the circumstances of this
case. The appellant argues that the hearsay evidence is not reliable because the
declarants were biased against him and because their statements were fully
contradicted by his own testimony. PFR File, Tab 4 at 27-32. There was some
evidence that the declarants were concerned that the appellant could retaliate
10
against them should he ever become a manager. 8 HT at 356-57. The concerns of
the declarants that there might be a penalty exacted for their coming forward does
not necessarily detract from their statements. Further, the fact that the appellant’s
testimony contradicted the hearsay evidence does not detract significantly from
its reliability because the administrative judge found that the appellant’s
testimony was not credible and her credibility findings are owed deference. ID
at 31-32. Therefore, although the agency’s case relied fairly heavily on hearsay
evidence, we find that the hearsay nature of the agency’s evidence did not have a
significant impact on the reliability of that evidence or on the strength of the
agency’s case against the appellant.
¶18 The administrative judge also found that there was little evidence that the
deciding official harbored a retaliatory motive against the appellant. ID at 32-33.
On review, the appellant challenges this finding and identifies several bits of
evidence that could possibly be interpreted as reflecting an improper motive.
PFR File, Tab 4 at 15-21.
¶19 The appellant disclosed on July 1, 2008, alleged poor performance on the
part of the nurses, mostly by their alleged failure to be immediately available
when needed, by carrying cell phones in the ward, and by eating in the ward.
W-1 File, Tab 1, Subtab C. The appellant asserts that Dr. M.G. did not take his
disclosures seriously and showed a disregard for patient safety, but actually
Dr. M.G. asked the appellant for more specific information so he could have the
allegations investigated through proper channels by the Nurse Manager’s office.
PFR File, Tab 4 at 15-17, 19-21; HT at 34, 63. The appellant also points to
Dr. M.G.’s admission that he let some things slide and that the appellant’s
concerns had to be addressed in context as evidence that Dr. M.G. “held patient
safety in contempt.” PFR File, Tab 4 at 16-21; HT at 46-48, 155-57. Context
8
The appellant had a tendency towards vindictiveness, as evidenced by his email, W-3
File, Tab 14 at 120, seeking advice on how to punish the residents who gave h im a bad
evaluation. See supra note 5.
11
matters. There is an enormous difference between a nurse in an understaffed
ward who is unavailable to answer pages as quickly as a physician might like
because she is attending another patient, and a nurse who is available to respond
to a page and chooses not to do so. Dr. M.G. acknowledged that there were
technical violations of hospital rules that potentially put the hospital’s
accreditation at risk, but explained that the agency had a nursing shortage and that
nurses sometimes ate in the nonpatient care areas of the ward because otherwise
they would have to skip lunch altogether. HT at 46-47, 155-57. Considered in
this context, we find that Dr. M.G.’s decision to disregard some technical
violations of the rules by tolerating the nurses’ decision to give up their lunch
breaks so they could still eat and be available to patients does not support a
conclusion that he “held patient safety in contempt.”
¶20 The appellant also identifies what he considers to be direct evidence of
retaliatory motive. PFR File, Tab 4 at 15-18. He alleges that Dr. M.G. testified
that he was “displeased” about the appellant’s disclosures, HT at 42-43, and the
hospital’s Chief of Staff called the disclosures “inflammatory” and hostile
towards the nurses, 9 HT 50-53, 55. He also alleges that Dr. M.G. wanted the
appellant to raise concerns quietly and in a nice way. PFR File, Tab 4 at 18; HT
at 59. Again, we find the appellant’s arguments unpersuasive. Dr. M.G.
repeatedly made it clear that he welcomed the appellant’s disclosures because he
did not want incompetent nurses treating veterans and it was in his best interest to
ensure that this did not happen, HT at 155, but he was concerned that the hostile
9
In his disclosure, the appellant referred to the nurses as “not concerned about their
duties toward our patients” and having an “uncaring to callous attitude.” W-2, Tab 9,
Subtab 3 at 30. He further described some unnamed nurses as exhibiting “constant
passive aggressive and troublemaking behavior” and referred to them as “deviants.” Id.
at 32. According to Webster’s Third New I nternational Dictionary of the English
Language Unabridged 1159 (Philip Babcock Gove et al. eds., 1993), a common
defin ition of the word “inflammatory” is “tending to excite anger, an imosity, disorder,
or tumult.” The manner in which the appellant characterized the nurses’ presumed
intent and motives could most certainly be perceived as “inflammatory.”
12
nature of the appellant’s disclosures might further degrade the poor relationship
between the appellant and the nurses. He explained that he considered some of
the appellant’s disclosures to be hostile because the appellant called some of his
coworkers “deviants” and said they were “uncaring” or “callous,” HT at 54, and
he testified that saying that he wanted staff to raise issues in a nice way meant
that he expected the employees to raise their issues not in public and not in front
of patients, and to behave in a professional manner. HT at 59. He testified:
[M]y concern with [the appellant] all along was not the specifics of
the allegations he was making; it was the manner. The manner in
which he publically berated and demeaned the nurses. Not the—not
the allegations themselves, which I felt were worthy of being
referred up the chain of command to be investigated, but the actual
manner in which he engaged the nurses, as I counseled him many
times.
HT at 48-49. In fact, despite the appellant’s disclosures, Dr. M.G. credibly
testified that he recommended the appellant’s reappointment in September 2009,
and the appellant was reappointed despite the counseling he had received about
how he treated the nurses and the poor evaluations he received from the residents.
HT at 205-06; W-2 File, Tab 9, Subtab 34. Therefore, we agree with the
administrative judge that any slight evidence of retaliatory motive is outweighed
by other evidence of record weighing against a finding of retaliatory motive. ID
at 32-33. Considering the record evidence as a whole, the administrative judge
correctly found scant evidence of retaliatory motive. Cf. McCarthy v.
International Boundary & Water Commission, 116 M.S.P.R. 594, ¶ 32 (2011)
(finding that in some cases, circumstantial evidence bearing on retaliatory motive
includes the substance of the appellant’s protected activity as well as the extent to
which the relevant management officials were aware of it), aff’d, 497 F. App’x 4
(Fed. Cir. 2012), cert denied, 134 S. Ct. 386 (2013).
¶21 We further find that the administrative judge correctly found that there was
no evidence regarding any action the agency may have taken against any
similarly-situated employees who engaged in similar misconduct but were not
13
whistleblowers. ID at 33. On review, the appellant argues that the fact that the
agency presented no evidence concerning its treatment of similarly-situated
nonwhistleblowers creates an adverse inference against the agency. PFR File,
Tab 4 at 21. The Federal Circuit has recognized that an agency has no affirmative
burden to produce evidence on all of the three Carr factors; they are merely
pertinent considerations for determining whether the agency’s evidence meets the
clear and convincing evidence test. Whitmore, 680 F.3d at 1374. If there is some
reason to believe that the agency has evidence concerning similarly-situated
nonwhistleblowers but has failed to produce it, it may be appropriate to weigh the
failure to produce such evidence against the agency. See id. In this regard,
Whitmore refers to Chambers, in which the Board determined that the agency’s
failure to show that it took similar actions against similarly-situated
nonwhistleblowers, together with the finding that the agency’s case against the
appellant was not very strong and the agency had a strong motive to retaliate,
prevented the Board from forming a firm conviction that the agency would have
taken the same action absent the appellant’s whistleblowing. See Chambers v.
Department of the Interior, 116 M.S.P.R. 17, ¶ 70 (2011). In such a case, if the
agency fails to produce some evidence concerning similarly-situated
nonwhistleblowers, the agency fails to meet its burden of proof because there is
nothing to counterbalance the adverse findings on the first two Carr factors.
¶22 The appellant does not cite any precedent standing for the proposition that
an agency will fail to meet the clear and convincing evidence test solely because
it introduced no evidence concerning similarly-situated employees. Rather, the
Federal Circuit suggests that, except in unusual situations, if there is no evidence
that the agency took similar actions against nonwhistleblowers, then that factor
drops out of the analysis. See Whitmore, 680 F.3d at 1374. This is the approach
the Board has taken for some time. See McCarthy, 116 M.S.P.R. 594, ¶ 65; see
also Sutton v. Department of Justice, 94 M.S.P.R. 4, ¶ 19 (2003), aff’d,
97 F. App’x 322 (Fed. Cir. 2004). In this case, as in McCarthy and Sutton, there
14
was strong evidence in support of the agency’s case against the appellant, weak
evidence of motive, and no evidence concerning similarly-situated employees.
Under the circumstances, we find that it is not appropriate to draw an adverse
inference against the agency but, rather, that the third Carr factor is not a
significant consideration under the circumstances of this case. See Rumsey,
120 M.S.P.R. 259, ¶ 36 (“There is no evidence in the record concerning how the
agency [treated] appropriate non-whistleblower comparators, so consideration of
this factor does not materially assist [the Board] in deciding whether the agency
has met its burden of proof.”).
¶23 To meet the clear and convincing standard, the evidence must produce a
“firm belief as to the allegations sought to be established.” 5 C.F.R. § 1209.4(e);
Rumsey, 120 M.S.P.R. 259, ¶ 34. Weighing the strength of the agency’s evidence
in support of its decision to terminate the appellant’s temporary appointment prior
to its expiration date and to take other personnel actions as discussed above
against the very weak evidence of retaliatory animus that may tend to indicate
that Dr. M.G. had some motive to retaliate against appellant, we find that the
agency would have taken the same actions even if the appellant had not engaged
in any protected activity. Therefore, we find that the agency has met its burden
of showing by clear and convincing evidence that it would have taken the same
actions absent any whistleblowing, and we DENY the appellant’s petition for
review.
¶24 In its cross petition for review, the agency argues that the administrative
judge erred by finding that the appellant proved that his disclosure was a
contributing factor in a personnel action. PFR File, Tab 8 at 23-28. Given our
finding above that the agency proved by clear and convincing evidence that it
would have taken the same personnel actions absent any whistleblowing,
resolution of the agency’s cross petition for review in favor of the agency would
not affect the outcome of this appeal. We find, therefore, it is not necessary to
address the agency’s cross petition for review and we DENY it.
15
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both. Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information about the United States Court of Appeals for the Federal
16
Circuit is available at the court's website, www.cafc.uscourts.gov. Of particular
relevance is the court's "Guide for Pro Se Petitioners and Appellants," which is
contained within the court's Rules of Practice, and Forms 5, 6, and 11.
Additional information about other courts of appeals can be found at their
respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for a list of attorneys who have expressed
interest in providing pro bono representation for Merit Systems Protection Board
appellants before the Federal Circuit. The Merit Systems Protection Board
neither endorses the services provided by any attorney nor warrants that any
attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
