Marcel Eluhu v. Dep'T of Veterans Affairs ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0114n.06
Case No. 18-4243
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Feb 24, 2020
MARCEL ELUHU, ) DEBORAH S. HUNT, Clerk
)
Petitioner,
)
) ON PETITION FOR REVIEW
v.
) FROM THE MERIT SYSTEMS
) PROTECTION BOARD
DEPARTMENT OF VERTERANS
)
AFFAIRS,
)
Respondent. )
BEFORE: NORRIS, MOORE, and DONALD, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. Marcel Eluhu appeals a final decision of
the Merit Systems Protection Board, determining that his discharge from a part-time position as a
physician with the Tennessee Valley Healthcare System was not in retaliation for his sending of a
letter which he alleges qualifies as a protected disclosure under the Whistleblower Protection Act,
5 U.S.C. § 2302(b)(8). Because the Board’s decision that Eluhu’s letter was not a contributing
factor in his discharge is supported by substantial evidence, we AFFIRM.
Dr. Marcel Eluhu began working for the Tennessee Valley Healthcare System (“TVHS”)
of the Department of Veterans Affairs (“the agency”) in or around 1996. Eluhu was stationed at
one of TVHS’ two medical centers, the Alvin C. York campus, in Murfreesboro, Tennessee. From
June 30, 2006, until he was terminated, Eluhu worked in the cardiology clinic as a part-time
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physician. Eluhu had a fixed worked schedule but was also on call to return to the hospital to care
for certain patients outside of his part-time hours.
Around 2010, Eluhu began voicing concerns to his supervisor, Assistant Chief of Medicine,
Dr. Dharapuram Venugopal that certain intensivists in the hospital’s ICU were improperly refusing
to accept cardiac patients into the ICU. Although the issue was initially resolved in Eluhu’s
favor—intensivists were instructed to admit cardiac patients into the ICU despite any
disagreement—disputes arose again when a new Chief of Staff, Dr. John Nadeau, was hired in
January 2017. On February 6, 2017, after raising the issue “several times,” Eluhu addressed a
letter to one of the pulmonary critical care physicians in the ICU, Dr. Gary Lovelady. Eluhu also
sent the letter to Dr. Carl Green, Director of Intensive Care; Dr. Brian Christman, Chief of
Medicine; Nadeau; and Venugopal. The letter, reproduced in full states:
Dear Dr. Lovelady,
Your behavior now and in the past in term of management of cardiac patients at
Alvin VA Medical center is not acceptable to me and dangerous to care we provide
the veterans.
First of all, you have no right to order me to come and manage patients I transfer to
the intensive care unit at your will.
Not only that, I consider your conduct as pure harassment, not genuine consultation.
It is clear to me and other physicians that you (attending physicians in ICU) at Alvin
VA Medical Center are not willing or do not feel comfortable on managing cardiac
patients.
Every time I want to transfer a cardiac patient from the floor to the ICU, it is a
battle.
I however, want to be mindful to you that as attending cardiologist, I do have full
authority to transfer cardiac pts to the ICU without begging your permission.
You put so much resistance to the point of making any attending Physician who
wants to transfer a cardiac patient to the unit very uncomfortable.
What you need to do as ICU attending, is to dispose several beds as coronary care
unit (CCU) as it is done in any hospital I know in the community for the daily
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supervision by the cardiology team at Alvin VA Medical Center as I have proposed
more than five years ago to the medical service on a repetitive basis.
As for now and future, just like in the past, whenever I believe that a cardiac patient
needs to be transferred to ICU, I will do it with or without your permission and it
is your responsibility and obligation to provide the proper care. If you do not feel
comfortable, you should take the issue with the chef of medical service or the
hospital administration that they provide you with a daily cardiology service in your
unit, which I am more than willing to do.
I also am requesting all the administration authorities to address this issue on urgent
basis since such behavior has become intolerant to me.
Initial Board Dec., AR. 1, at 5-6 (errors in original).
Three months later, on May 8, 2017, Eluhu was discharged from his position. Three days
after his termination, Eluhu filed a complaint with the Office of Special Counsel (“OSC”), alleging
that he was discharged in retaliation for making a protected disclosure. Eluhu contends that his
letter qualifies as a protected disclosure under the Whistleblower Protection Act, 5 U.S.C.
§ 2302(b)(8), and that his whistleblowing activity was a contributing factor in his termination. On
December 5, 2017, Eluhu’s initial complaint with the OSC was terminated.
On January 29, 2018, Eluhu filed the instant individual right of action requesting corrective
action from the Merit Systems Protection Board (“the Board”), a quasi-judicial agency that
adjudicates whistleblower complaints and employment disputes involving employees of executive
branch agencies. On September 21, 2018, the Board denied Eluhu’s action, finding that he failed
to prove that he made protected disclosures and that, even if his letter was a protected disclosure,
he failed to show that it was a contributing factor in the agency’s decision to discharge him. That
decision became final on October 26, 2018.
Eluhu challenges both of the Board’s findings on appeal. Although the United States Court
of Appeals for the Federal Circuit has exclusive jurisdiction over “pure” prohibited personnel
practice appeals from the Board, Perry v. MSPB, 137 S. Ct. 1975, 1981 (2017), the Whistleblower
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Protection Enhancement Act allows employees to seek judicial review in their appropriate regional
circuit in some instances, 5 U.S.C. § 7703(b)(1)(B). Because Eluhu’s alleged protected disclosure
took place in Tennessee, he now appeals the Board’s denial of his request for corrective action
directly to this Court.
The Whistleblower Protection Act prohibits an agency from taking a personnel action
against an employee for making a protected disclosure. 5 U.S.C. § 2302(b)(8). To establish a
retaliatory action in violation of the Act, the employee must establish four elements:
(1) the acting official has the authority to take, recommend, or approve any
personnel action; (2) the aggrieved employee made a protected disclosure; (3) the
acting official used his authority to take, or refuse to take, a personnel action against
the aggrieved employee; and (4) the protected disclosure was a contributing factor
in the agency's personnel action.
Chambers v. DOI, 602 F.3d 1370, 1376 (Fed. Cir. 2010) (citing Lachance v. White, 174 F.3d 1378,
1380-81 (Fed. Cir. 1999)). If the employee makes the required showing, there is still no violation
of the statute if the agency can prove by clear and convincing evidence that, absent the employee’s
protected disclosure, it would have taken the same personnel action. 5 U.S.C. § 1221(e)(2);
Chambers, 602 F.3d at 1376.
We review the Board’s decision to determine whether it is supported by “substantial
evidence” or is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law[.]” 5 U.S.C. § 7703(c); United States Postal Serv. v. Gregory, 534 U.S. 1, 6 (2001). “The
role of judicial review is only to ascertain if the Board has met the minimum standards set forth in
the statute.” Gregory, 534 U.S. at 7.
The Board denied Eluhu’s request for corrective action because it held that he was unable
to establish that his February 6, 2017, letter qualifies as a protected disclosure. Even if Eluhu’s
letter does qualify as a protected disclosure, however, he must also show that the Board’s
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decision—that he was unable to establish that the letter was a contributing factor in the agency’s
decision to terminate his employment by a preponderance of the evidence—is not based on
substantial evidence. 5 U.S.C. § 1221(e)(1); Chambers, 602 F.3d at 1380. Eluhu may demonstrate
this through circumstantial evidence, including evidence that “the official taking the personnel
action knew of the disclosure or protected activity” and “the personnel action occurred within a
period of time such that a reasonable person could conclude that the disclosure or protected activity
was a contributing factor in the personnel action.” 5 U.S.C. § 1221(e)(1).
Eluhu has failed to provide evidence that the individual recommending his termination,
Nadeau, or the decisionmaker discharging him, Jennifer Vedral-Baron, Director for TVHS, knew
of his disclosures.1 Instead, Eluhu offers circumstantial evidence regarding the timing of Nadeau’s
investigation into his work absences. 2 Eluhu contends that the timing of his termination, roughly
three months after he authored the letter, and the impact it could have had on Nadeau, the newly
hired Chief of Staff, are enough to show a retaliatory motive for his discharge. Although Eluhu
points to several cases which consider circumstantial evidence of motive, each authority he cites
also included significant evidence that the individuals taking the personnel actions were actually
aware of the disclosures at issue.3 Given Eluhu’s inability to show that Nadeau or Vedral-Baron
1
Nadeau testified that, although he expects he saw the letter sometime around the date it was sent, App., AR. 16, at
227, he “did not remember seeing it.” Id. at 218-19. Vedral-Baron testified that she had not seen the letter when it
was sent in 2017. Id. at 329.
2
The agency contends that Eluhu was discharged because of his recurring attendance problems. Nadeau testified that
he proposed Eluhu’s termination because he became aware that Eluhu was not always onsite during his fixed work
schedule. App., AR. 16, at 192. He further explained that he had a senior administrative employee monitor if Eluhu
was where he was supposed to be over the course of several weeks, and the employee was unable to find Eluhu in the
proper locations. Id. Venugopal testified that he had to counsel Eluhu regarding his attendance habits “many times,”
and that Eluhu frequently indicated that he could not comply with such requirements and was considering taking
another job. Id. at 141-43.
3
See Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1370-71 (Fed. Cir. 2012) (discussing the numerous emails regarding
the appellant’s whistle-blowing disclosures between the individuals involved in making the personnel action in
question); Chambers v. Dep’t of the Interior, 116 M.S.P.R. 17, 31-32 (2011) (addressing evidence that the individual
taking the personnel action was aware of the disclosure at the time of the action); Philips v. Dep’t of Transp., 113
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had any knowledge of his letter, his questionable attendance history as a practical reason for his
discharge, and the fact that his circumstantial evidence consists of nothing more than
unsubstantiated claims, the Board’s decision that his letter was not a contributing factor in the
agency’s decision to discharge him is supported by substantial evidence.
Finally, because Eluhu’s letter was not a contributing factor in his discharge, we need not
address whether it qualifies as a protected disclosure or whether the agency has proven that it
would have taken the same action absent the disclosure. For the foregoing reasons, we AFFIRM.
M.S.P.R. 73, 82-83 (2010) (highlighting an admission from the individual taking the personnel action that he knew
that the general subject of the disclosure was “lack of institutional control and oversight”).
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