Jimenez v. Department of Veterans Affairs , 662 F. App'x 975 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOE M. JIMENEZ, JR.,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2016-1832
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-1221-13-0323-W-2.
______________________
Decided: November 7, 2016
______________________
JOE M. JIMENEZ, JR., San Antonio, TX, pro se.
CORINNE ANNE NIOSI, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., ALLISON
KIDD-MILLER.
______________________
Before MOORE, WALLACH, and STOLL, Circuit Judges.
2 JIMENEZ v. DVA
PER CURIAM.
Joe M. Jimenez, Jr. appeals the decision of the Merit
Systems Protection Board denying him relief for an em-
ployment action taken by the Department of Veterans
Affairs (“V.A.”). The Board held that Mr. Jimenez met his
burden of showing that certain disclosures he made were
protected under the Whistleblower Protection Act and
contributed to his reassignment. The Board further held,
however, that the Government successfully rebutted
Mr. Jimenez’s prima facie case of reprisal for whistleblow-
ing by showing independent causation for the employ-
ment action. Because substantial evidence supports the
Board’s decision, we affirm.
BACKGROUND
Mr. Jimenez worked as a Nuclear Medicine Technolo-
gist for the V.A., where his job duties included injecting
patients undergoing PET/CT scans with radiological
substances. During a November 21, 2011, injection
Mr. Jimenez conducted the radiological substance
Flourine 18 escaped from its tubing and struck a patient’s
arm and clothing. The Chief of Nuclear Medicine at the
facility where Mr. Jimenez worked testified that the
patient approached him later that day about the spill and
explained that Mr. Jimenez did not clean the spill or show
concern over it. The Chief memorialized his interaction
with the patient in a memorandum he drafted the same
day. Mr. Jimenez’s direct supervisor investigated the
incident and, as reflected in a memorandum he drafted
several days after the spill, determined that radioactive
material had been detected on the patient’s clothing and
in the general area where the spill had occurred. The
memorandum further stated that Mr. Jimenez did not
report the spill to his direct supervisor or to the radiation
safety officer.
Following the investigation, the V.A. proposed
Mr. Jimenez’s removal in a letter dated December 23,
JIMENEZ v. DVA 3
2011, for “Endangering the Patient’s Health and Safety of
Others” and for “Failure to Observe Precautions for
Containment and Contamination of a Radioactive Materi-
al.” Mr. Jimenez responded both in writing and orally,
but the V.A. issued Mr. Jimenez’s final notice of removal
on February 22, 2012, effective March 5, 2012.
Mr. Jimenez brought a Whistleblower Protection Act
(“WPA”) claim before the Merit Systems Protection
Board. 1 Mr. Jimenez averred that the removal action was
retaliatory in nature, citing several disclosures he alleged
were protected under the WPA. Mr. Jimenez asserted
that he had cooperated with an Office of Special Counsel
investigation that was spurred by the complaint of a co-
worker at his facility regarding the handling of nuclear
materials there. Mr. Jimenez further alleged that he
disclosed this cooperation to Human Resources and his
superiors, seeking whistleblower protection, in a letter
dated December 22, 2011. Mr. Jimenez also indicated
that on October 7, 2011, and December 10, 2011, he had
reported safety concerns regarding patient and employee
radiation exposure. Finally, Mr. Jimenez indicated that
he had filed a complaint with the Office of Special Coun-
sel on March 1, 2012, regarding the handling of nuclear
materials at his facility and alleging that he informed
Human Resources of these handling practices on or about
February 7, 2012. Some of Mr. Jimenez’s disclosures
criticized actions of his direct supervisor.
1 There were several procedural complications with
Mr. Jimenez’s case before it was properly before the Board
for consideration, the details of which are not relevant
here and are set forth in the Board’s decision. See
Jimenez v. V.A., DA-1221-13-0323-W-2, 2016 WL 602580
(Feb. 12, 2016) (Board Op.), Supplemental Appendix
(“S.A.”) 36–39.
4 JIMENEZ v. DVA
The Board concluded in its February 12, 2016, deci-
sion that Mr. Jimenez’s October 7, December 10, and
December 22, 2011, disclosures were protected under the
WPA and that, under the 5 U.S.C. § 1221(e)(1)
knowledge/timing test, these protected disclosures con-
tributed to the decision to remove Mr. Jimenez, first
proposed on December 23, 2011. 2 The Board also con-
cluded that the alleged February 7, 2012, disclosure did
not contribute to his removal because it occurred after the
removal action was already well underway.
The Board ultimately concluded, however, that the
Government rebutted Mr. Jimenez’s prima facie case of
whistleblower reprisal because it showed by clear and
convincing evidence that it would have removed
Mr. Jimenez despite his protected disclosures. The Board
credited the Chief of Nuclear Medicine’s hearing testimo-
ny regarding the spill incident, along with contemporane-
ous corroborating memorandums from the Chief and
Mr. Jimenez’s supervisor. The Board also relied on the
deciding official’s hearing testimony and, like the Chief’s
testimony, found it credible, citing specific reasons. The
Board indicated that while Mr. Jimenez alleged that he
had reported the spill, he introduced no supporting evi-
dence. Finally, the Board discounted Mr. Jimenez’s
argument that the V.A. had not disciplined other non-
whistleblowers involved in this and similar spills. The
Board explained that none of the non-whistleblowers
Mr. Jimenez relied on had the same disciplinary record as
Mr. Jimenez, which included “reprimand for endangering
a patient’s health, loss of control of a radiopharmaceutical
2 We note that while the proposed removal letter
was dated December 23, 2011, Mr. Jimenez admitted that
by the deciding official sought the authority to remove
Mr. Jimenez on December 19, 2011, see S.A. 143, which
finds support in the record, see S.A. 71.
JIMENEZ v. DVA 5
medicine, and failure to follow instructions.” Board Op.,
2016 WL 602580, S.A. 47. Thus, the Board concluded
that the Government proved by clear and convincing
evidence that it would have removed Mr. Jimenez regard-
less of his protected disclosures.
Mr. Jimenez appeals to us, and we have jurisdiction
under 5 U.S.C. § 7703(a)(1), (b)(1).
DISCUSSION
I.
At the outset, we address the Government’s threshold
argument that the Board did not have jurisdiction to hear
this case. The Government avers that because
Mr. Jimenez retired on March 2, 2012—before his March
5, 2012, effective removal date—the case is moot. In other
words, the Government asserts that there could be no
basis for the Board to grant Mr. Jimenez relief because
Mr. Jimenez’s removal never went into effect. The Gov-
ernment concedes that it did not present this argument to
the Board. “[M]ootness . . . is a threshold jurisdictional
issue,” however. Myers Investigative and Sec. Servs., Inc.
v. United States, 275 F.3d 1366, 1369 (Fed. Cir. 2002).
Because “[a] challenge to the Board’s jurisdiction may be
made at any time, even on appeal,” we have considered
the Government’s new argument. Carley v. Dep’t of the
Army, 413 F.3d 1354, 1356 (Fed. Cir. 2005).
We have previously held that when an employee vol-
untarily retires upon receiving a proposed notice of re-
moval a claim based on that notice may be moot. See
Cruz v. Dep’t of Navy, 934 F.2d 1240, 1247 (Fed. Cir.
1991) (en banc). But that is not the case where, as here,
before the employee retires there is a final, appealable
V.A. action giving the employee the right to file a claim.
See Mays v. Dep’t of Transp., 27 F.3d 1577, 1579 (Fed. Cir.
1994). As such, this case is not moot.
6 JIMENEZ v. DVA
Indeed, the Government’s mootness argument does
not comport with our holding in Mays. In that case, the
appellant, Ms. Mays, retired before her removal went into
effect. Id. at 1577–78. Specifically, “[o]n October 7, 1992,
the agency proposed that Mays be removed from her
position,” and subsequently, “Mays submitted both a
written and an oral response to the proposed adverse
action.” Id. “On December 1, 1992, the agency informed
Mays by letter that ‘you will be removed from your posi-
tion effective the close of business 4 December 1992.’” Id.
at 1578. The letter also “set forth Mays’ appeal rights.”
Id. After receiving that letter, Ms. Mays retired on De-
cember 4, 1992 and subsequently filed an appeal regard-
ing her removal. The Government argued there, as it
does here, that there was no jurisdiction because
Ms. Mays retired before her removal went into effect. Id.
at 1579.
We disagreed. We held that, because “[t]he agency
made a final decision and took action when it issued the
decision letter” and because Ms. Mays’s “removal was no
longer ‘proposed’ in the normal sense of the word or as
that word is used in Cruz,” Ms. Mays’s case was not moot.
Id. at 1580. We further explained in Mays that it was “a
case involving removal,” as evidenced by Ms. Mays’s SF-
50 retirement form “stating in the remarks section,
‘[r]etired after receiving written notice on 12–01–92 of
decision to separate for unacceptable performance.’” Id.
at 1578. For these reasons, we found that 5 U.S.C.
§ 7701(j)—which provides that an employee’s retirement
status may not be taken into account in appealability of
removal actions—established our jurisdiction over
Ms. Mays’s case and that her case was not moot. Id. at
1581.
The facts of this case fall squarely in line with those
in Mays: here, as in Mays, Mr. Jimenez received proposed,
and then final, removal letters and subsequently retired
in light of that removal. Specifically, the V.A. sent
JIMENEZ v. DVA 7
Mr. Jimenez a proposed removal letter on December 23,
2011, to which Mr. Jimenez responded both in writing
and orally. Ultimately, the V.A. decided to remove
Mr. Jimenez and informed him with a final removal
notice on February 22, 2012. The February 22, 2012
notice indicated that, “[i]n connection with the letter of
December 23, 2011, in which you were given advance
notice of your proposed removal, a decision has been made
to remove you from federal employment effective March 5,
2012 based on the following reasons.” S.A. 103 (italiciza-
tion added). The notice also expressly informed
Mr. Jimenez of his right to appeal: “You may appeal this
action to the Merit Systems Protection Board (MSPB) or
[]under the grievance procedure (non-bargain) or under
the negotiated grievance procedure . . . .” Id. Moreover,
just like in Mays, the remarks section in Mr. Jimenez’s
SF-50 retirement form indicated that he “retired after
receiving written notice on 02/22/2012 of decision to
separate for endangering patient health and safety of
others.” S.A. 119. Thus, Mr. Jimenez’s retirement did not
moot his claim. See Mays, 27 F.3d at 1580–81.
In fact, during prehearing conferences, the Board de-
termined that Mr. Jimenez “retired on March 2, 2012,
because the agency had issued a decision to remove him
on February 22, 2012, effective March 5, 2012.” S.A. 241–
42. The Board cited Mays—under no objection by the
Government, as it concedes—to hold that the February 22
removal notice constituted an appealable action that
conferred jurisdiction in this case. Id. The Government
now unconvincingly argues in the abstract that this case
is moot without either addressing the Board’s specific
holding on the issue or responding to its reliance on Mays
in reaching that holding. We conclude that the Board’s
holding was correct and that jurisdiction exists in this
case.
Having concluded that jurisdiction is proper, we ad-
dress the merits of Mr. Jimenez’s appeal.
8 JIMENEZ v. DVA
II.
Actions brought under the WPA operate in a burden-
shifting framework. The initial burden lies with the
employee to show “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 employ-
ee’s termination.” Whitmore v. Dep’t of Labor, 680 F.3d
1353, 1367 (Fed. Cir. 2012) (citing 5 U.S.C. § 1221(e)). “If
the employee establishes this prima facie case of reprisal
for whistleblowing, the burden of persuasion shifts to the
agency to show by clear and convincing evidence that it
would have taken ‘the same personnel action in the
absence of such disclosure,’” id. (quoting § 1221(e)), which
we sometimes refer to as a showing of “independent
causation,” see, e.g., Kewley v. Department of Health &
Human Services, 153 F.3d 1357, 1364 (Fed. Cir. 1998).
In evaluating whether the Government has success-
fully rebutted an employee’s prima facie case by demon-
strating independent causation, this court has approved
of the use of three, albeit nonexclusive, factors described
in Carr v. Social Security Administration, 185 F.3d 1318,
1323 (Fed. Cir. 1999):
[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 deci-
sion; and [3] any evidence that the agency takes
similar actions against employees who are not
whistleblowers but who are otherwise similarly
situated.
By statute, we set aside the judgment of the Board if
the decision is “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2)
obtained without procedures required by law, rule, or
regulation having been followed; or (3) unsupported by
JIMENEZ v. DVA 9
substantial evidence.” 5 U.S.C. § 7703(c); see also
Whitmore, 680 F.3d at 1366.
The Government does not dispute the Board’s thresh-
old determination that Mr. Jimenez made a prima facie
showing that his disclosures were protected by the WPA
and that they contributed to his removal. This finding
shifted the burden to the Government to show independ-
ent causation before the Board. Thus, the main issue
before us is whether substantial evidence supports the
Board’s determination that the Government showed
independent causation by clear and convincing evidence.
We conclude that it does.
The Board relied on the testimony—supported by
contemporaneous documents—of multiple witnesses
involved in the spill incident, the investigation, and
Mr. Jimenez’s removal procedure. The Board found the
Government’s witness testimony credible, but
Mr. Jimenez argues that this evidence is weak because it
came from unreliable witnesses. But the Board’s “credi-
bility determinations are ‘virtually unreviewable’ at this
level.” Chambers v. Dep’t of Interior, 515 F.3d 1362, 1370
(Fed. Cir. 2008) (quoting Hambsch v. Dep’t of Treasury,
796 F.2d 430, 436 (Fed. Cir. 1986)). Further, the Board
discredited Mr. Jimenez’s contradictory testimony that he
actually reported the spill because “he provided no evi-
dence to support that claim.” Board Op., 2016 WL
602580, S.A. 47. On appeal, Mr. Jimenez now argues for
the first time that there is no proof that a spill of radiolog-
ical material actually occurred. Appellant Br. Amend-
ment 7–8. Not only does Mr. Jimenez raise this argument
too late, it is also flatly contradicted by his multiple
earlier admissions that a radiological spill did, in fact,
occur. See, e.g., S.A. 475:16–476:10 (hearing testimony of
Mr. Jimenez that tubing became separated from patient
and “squirted the medicine out”); S.A. 99–100 (Mr.
Jimenez’s representative declaring that “there was a spill”
and describing a different spill as a “spill similar to what
10 JIMENEZ v. DVA
Mr. Jimenez experienced” during oral response to V.A.’s
proposed removal action).
Mr. Jimenez also argues that the Board did not
properly consider the decisionmaker’s retaliatory motive
under Carr factor two. We disagree. The Board heard the
decisionmaker’s testimony that “the reasons set out in the
proposal notice, not the appellant’s whistleblowing activi-
ties, were the reasons for his decision to propose the
appellant’s removal” and found it to be credible. Board
Op., 2016 WL 602580, S.A. 46. Again, the Board credited
this testimony, and such “credibility determinations are
‘virtually unreviewable’ at this level.” Chambers, 515
F.3d at 1370 (quoting Hambsch, 796 F.2d at 436).
Mr. Jimenez also argues that the Board failed to properly
consider his evidence that other similarly situated non-
whistleblowers had not been removed, which goes to Carr
factor three. The Board did address Mr. Jimenez’s argu-
ment, but found it unpersuasive given that Mr. Jimenez
had not shown that these other employees had his same
disciplinary record, which included multiple violations for
similar offenses. And, indeed, the Board’s finding is
consistent with the deciding official’s testimony that
Mr. Jimenez’s removal was an instance of “progressive
discipline.” S.A. 375:21–376:2. Thus, considering the
record as a whole, we conclude that there is substantial
evidence from which the Board could have concluded that
the Government proved independent causation by clear
and convincing evidence. Accordingly, we do not disturb
the Board’s determination.
Mr. Jimenez additionally contends that Board erred
when it did not allow Dr. Tuhin Chaudhuri, an expert in
Nuclear Engineering, to testify at the hearing.
Mr. Jimenez sought to have Mr. Chaudhuri testify that
the Government’s testimony was “inaccurate . . . medical-
ly and scientifically.” Appellant Br. 15. The Board con-
cluded that the testimony of Dr. Chaudhuri would be
“irrelevant and/or unduly repetitious.” S.A. 241. We
JIMENEZ v. DVA 11
review the Board’s decision for abuse of discretion. Vene-
ziano v. Dep’t of Energy, 189 F.3d 1363, 1369 (Fed. Cir.
1999) (citing Curtin v. Office of Pers. Mgmt., 846 F.2d
1373, 1378 (Fed. Cir. 1988)).
We agree with the Board that Dr. Chaudhuri’s testi-
mony would have been irrelevant because it would not
bear on whether Mr. Jimenez spilled a radioactive sub-
stance and failed to report it to his superiors.
Mr. Jimenez has not presented an argument explaining
why the Board abused its discretion in finding this testi-
mony irrelevant. Accordingly, we conclude that the Board
did not abuse its discretion in refusing this testimony.
We have considered Mr. Jimenez’s remaining argu-
ments, including those relating to alleged incidents that
occurred after his proposed removal, and find them un-
persuasive. For the foregoing reasons, we conclude that
this case is not moot, but that the Board’s ultimate deci-
sion is supported by substantial evidence. We therefore
affirm.
AFFIRMED
COSTS
No costs.