Case: 22-2075 Document: 47 Page: 1 Filed: 04/11/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
GEORGE D. SKRETTAS,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2022-2075
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-1221-20-0549-W-1.
______________________
Decided: April 11, 2023
______________________
GEORGE DIMITRIOS SKRETTAS, Ann Arbor, MI, pro se.
PATRICK ANGULO, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by BRIAN M.
BOYNTON, ELIZABETH MARIE HOSFORD, PATRICIA M.
MCCARTHY.
______________________
Before DYK, SCHALL, and CHEN, Circuit Judges.
Case: 22-2075 Document: 47 Page: 2 Filed: 04/11/2023
2 SKRETTAS v. DVA
PER CURIAM.
George D. Skrettas, formerly a Department of Veterans
Affairs (“VA”) employee, seeks review of a decision of the
Merit Systems Protection Board (“MSPB”) denying relief in
relevant part for alleged retaliation in response to whistle-
blowing. We affirm.
BACKGROUND
Mr. Skrettas began work as a registered respiratory
therapist at the John D. Dingell VA Medical Center in
2015. He submitted two whistleblower complaints rele-
vant here, one to VA management in July 2017 and an-
other to the VA Inspector General in July 2018. Both
complaints alleged, among other things, that the respira-
tory department lacked adequate policies and procedures.
In response, the Office of the Medical Inspector toured the
Dingell facility in November 2018, and in a later report
partially substantiated Mr. Skrettas’ complaints. See
Dep’t of Veterans Affs., OSC File Number DI-18-5155, Re-
port to the Office of Special Counsel (2019) (“Report”),
https://osc.gov/Documents/Public%20Files/FY20/DI-18-51
55/DI-18-5155%20-%20Agency%20Report_Redacted.pdf.
In January 2019, Mr. Skrettas filed a complaint with
the Office of Special Counsel, alleging that the VA had re-
taliated against him for his whistleblowing. He continued
to supplement his complaint with allegations that subse-
quent personnel actions were retaliatory. In June 2020,
the Office informed Mr. Skrettas that it was closing his
whistleblowing retaliation case. Mr. Skrettas then ap-
pealed the VA’s actions to the MSPB.
At the MSPB, Mr. Skrettas alleged that the VA had re-
taliated against him by taking three personnel actions rel-
evant here. First, on June 15, 2018, the agency suspended
Mr. Skrettas for 10 days in response to allegations that he
had behaved inappropriately, including on two occasions
by refusing to assist a patient in respiratory distress. On
Case: 22-2075 Document: 47 Page: 3 Filed: 04/11/2023
SKRETTAS v. DVA 3
one of those occasions, Mr. Skrettas was alleged to have
declined to assist a patient by performing an arterial blood
gas draw in order to test for oxygen and carbon dioxide lev-
els. Second, on June 25, 2018, the VA removed Mr. Skret-
tas from providing clinical care, and later detailed him to
the social work unit, in response to allegations that shortly
before his suspension he had endangered a patient by tam-
pering with a ventilator. Finally, on July 26, 2019, the VA
again removed Mr. Skrettas from clinical work and as-
signed him to the social work unit after he was accused of
creating a hostile work environment.
An administrative judge (“AJ”) found that, as relevant
here, Mr. Skrettas’ whistleblowing complaints were pro-
tected disclosures. And she found that Mr. Skrettas had
made a prima facie case that his whistleblowing was a con-
tributing factor to the three personnel actions discussed
above. But she concluded that the VA had shown by clear
and convincing evidence that it would have taken these
steps against Mr. Skrettas independent of any motivation
to retaliate. 1
Mr. Skrettas petitioned the full Board for review. The
Board denied the petition but modified the AJ’s decision in
one respect not relevant here. Mr. Skrettas petitions for
1 Mr. Skrettas also alleged that his supervisor had
retaliated against him by giving him an “unacceptable”
performance review for the 2018 fiscal year. The AJ agreed
and was not persuaded that the agency would have given
him that rating absent his whistleblowing. She directed
the VA to rescind its unfavorable rating and to indicate
that Mr. Skrettas performed adequately in 2018. That is-
sue is not part of the review proceedings here.
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4 SKRETTAS v. DVA
review here. We have jurisdiction. See
28 U.S.C.
§ 1295(a)(9). 2
DISCUSSION
I
The scope of our review of MSPB decisions is limited.
We shall “hold unlawful and set aside any agency action,
findings, or conclusions” only if found to be “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in ac-
cordance with law; (2) obtained without procedures re-
quired by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.”
5 U.S.C.
§ 7703(c).
Agencies of the United States are prohibited from re-
taliating against their employees for whistleblowing. See
5 U.S.C. § 2302(b)(8). “An employee who believes he has
been subjected to illegal retaliation must prove by a pre-
ponderance of the evidence that he made a protected dis-
closure that contributed to the agency’s action against
him.” Smith v. GSA.,
930 F.3d 1359, 1365 (Fed. Cir. 2019).
Once an employee has made a prima facie case that he or
she made a protected disclosure, and the disclosure contrib-
uted to the agency’s adverse action, the agency bears the
burden of persuasion “to show by clear and convincing
2 Although Mr. Skrettas avers that he is not aban-
doning his discrimination claims here, see ECF No. 3, the
case below originated via an Individual Right of Action
(“IRA”) filing, in which “[d]iscrimination claims may not be
raised,” Young v. MSPB,
961 F.3d 1323, 1327 (Fed. Cir.
2020). Thus, although we lack jurisdiction over so-called
“mixed cases” involving claims that a personnel decision
was based in whole or in part on prohibited discrimination,
see Perry v. MSPB,
137 S. Ct. 1975, 1979 (2017), IRA ap-
peals are by definition not mixed cases and are subject to
our review. See Young, 961 F.3d at 1327–28.
Case: 22-2075 Document: 47 Page: 5 Filed: 04/11/2023
SKRETTAS v. DVA 5
evidence that it would have taken the same personnel ac-
tion in the absence of such disclosure.” Rickel v. Dep’t of
the Navy,
31 F.4th 1358, 1364 (Fed. Cir. 2022) (internal
quotation marks and citation omitted).
In determining whether the agency has met its burden
to show that it would have taken the same action absent
whistleblowing, the MSPB generally considers three non-
exclusive factors laid out in Carr v. Social Security Admin-
istration:
[1] the strength of the agency’s evidence in support
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 sit-
uated.
185 F.3d 1318, 1323 (Fed. Cir. 1999).
II
Mr. Skrettas’ main argument on appeal is that the
MSPB’s decision is not supported by substantial evidence.
See Pet’r’s Informal Br. 2–3. He asserts that several of the
government’s witnesses lied at the MSPB hearing and
lacked credibility. We conclude that the MSPB’s thorough
opinion properly considered the applicable Carr factors for
each of the personnel actions at issue and was supported
by substantial evidence. See Gov’t’s Suppl. App. (“S.A.”) 7–
8, 30–37, 41–44.
First, in what Mr. Skrettas characterizes as the “main
contradiction” in the case, Pet’r’s Informal Br. 2, he asserts
that several witnesses for the VA lacked credibility because
they contradicted evidence that the respiratory depart-
ment lacked adequate policies and procedures. There was
no contradiction. For example, one of Mr. Skrettas’ super-
visors, Belinda Brown-Tezera, testified that the Medical
Case: 22-2075 Document: 47 Page: 6 Filed: 04/11/2023
6 SKRETTAS v. DVA
Inspector had determined that the respiratory department
had some policies and procedures that needed to be up-
dated. That testimony is consistent with the Medical In-
spector’s report of how the respiratory department’s
policies and procedures were inadequate. See Report at ii–
iii, 3–7.
Second, Mr. Skrettas argues that Ms. Brown-Tezera
lacked credibility because she falsely asserted, among
other things, that he was still under investigation for tam-
pering with a patient ventilator. But Mr. Skrettas has not
pointed to evidence contradicting this testimony, nor oth-
erwise established that the Board erred in concluding that
Ms. Brown-Tezera’s relevant testimony was credible. See
S.A. 42. In reply, Mr. Skrettas also contends that the alle-
gation that he had tampered with a ventilator was based
on hearsay. But there is nothing that generally forbids an
agency from relying on reliable hearsay, including to disci-
pline employees based on misconduct reports relayed to su-
pervisors. See Charles H. Koch, 2 Administrative Law and
Practice § 5:52[4] (3d ed. 2023).
Third, Mr. Skrettas argues that two of his supervisors,
Anthony Hilu and Tonia Allen, lied in the MSPB proceed-
ings. Mr. Skrettas contends that Mr. Hilu falsely asserted
that he had not written a letter proposing that Mr. Skret-
tas be fired. And Mr. Skrettas argues that Ms. Allen falsely
denied complaining of Mr. Skrettas’ conduct toward a ther-
apist formerly employed in the department. There is noth-
ing to either charge. As to the first, Mr. Hilu did not deny
writing a letter proposing that Mr. Skrettas be terminated,
but instead said he did not remember writing such a letter.
As to the second, the MSPB found Ms. Allen’s testimony
that is relevant here to be credible, and Mr. Skrettas has
not established error in that finding. See, e.g., S.A. 33, 35.
Apart from the arguments concerning witness testi-
mony, Mr. Skrettas appears to argue that the VA has not
shown it would have suspended him for 10 days in June
Case: 22-2075 Document: 47 Page: 7 Filed: 04/11/2023
SKRETTAS v. DVA 7
2018 absent his whistleblowing. Implicitly invoking the
third Carr factor, Mr. Skrettas argues that the agency did
not discipline another therapist for refusing to perform the
same blood draw procedure for a patient that Mr. Skrettas
had refused to perform, a refusal that in part resulted in
his 10-day suspension. But the MSPB found that this fel-
low therapist was differently situated than Mr. Skrettas,
in part because she was not a registered therapist. That
finding was supported by substantial evidence. Any differ-
ential treatment between Mr. Skrettas and this other ther-
apist therefore does not undermine the MSPB’s conclusion.
Mr. Skrettas contends that his due process rights were
violated and that the MSPB should have applied other stat-
utes to his case. He has not explained those assertions, so
we do not consider them.
We have considered Mr. Skrettas’ other arguments,
and do not find them persuasive.
AFFIRMED
COSTS
No costs.
