Naeem Ahmad v. Department of Veterans Affairs ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NAEEM AHMAD, DOCKET NUMBER
Appellant, CH-1221-12-0462-W-2
v.
DEPARTMENT OF VETERANS DATE: October 17, 2022
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Nasim Ahmad, Esquire, Houston, Texas, for the appellant.
Erin Buck Kaiser, Milwaukee, Wisconsin, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial bench decision,
which denied his request for corrective action in this individual right of action
(IRA) appeal. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
1
A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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
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 administrative
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. 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, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. We MODIFY the initial bench
decision to clarify that the parties may only stipulate to facts, but we AFFIRM the
chief administrative judge’s conclusion that the appellant proved that he made
whistleblowing disclosures that were a contributing factor in the agency’s
decision to terminate him during his probationary period. We FURTHER
MODIFY the initial bench decision to find that the Medical Center Director had
some motive to retaliate against the appellant, but we AFFIRM the chief
administrative judge’s finding that the agency proved by clear and convincing
evidence that it would have terminated him absent his whistleblowing disclosures .
Except as expressly MODIFIED by this Final Order, we AFFIRM the initial
bench decision.
BACKGROUND
¶2 The following facts and chronology, as set forth in the initial bench
decision, are generally undisputed. Ahmad v. Department of Veterans Affairs,
MSPB Docket No. CH-1221-12-0462-W-2, Appeal File-2 (AF-2), Tab 40, Initial
Decision (ID). On October 25, 2009, the appellant began working for the agency
as a physician. ID at 11; Ahmad v. Department of Veterans Affairs, MSPB
Docket No. CH-1221-12-0462-W-1, Initial Appeal File (IAF), Tab 6 at 448. On
3
August 4, 2011, the Acting Chief of Staff received a request to convene a
Summary Review Board (SRB) 2 from the Associate Chief of Staff for Primary
Care, who was also the appellant’s supervisor, to review concerns about the
appellant’s clinical practices. ID at 11; AF-2, Tab 25 at 30-31. On August 18,
2011, the Associate Chief of Staff for Primary Care conducted a special rating
which found that the appellant was unsatisfactory in his duties. ID at 11; IAF,
Tab 6 at 239-40. The Associate Chief of Staff for Primary Care made a formal
request for the SRB on August 19, 2011, based on the appellant’s deficiencies,
including but not limited to numerous medication errors, inappropriate comments
on patient charts, a high degree of patient complaints and requests to change
providers, and improper protection of privacy information . ID at 11; IAF, Tab 6
at 221-22.
¶3 Effective August 20, 2011, the agency suspended the appellant’s clinical
privileges and placed him on administrative leave while the SRB was pending.
ID at 12; IAF, Tab 6 at 217-18. The SRB, comprised of five agency physicians,
convened on September 19, 2011, reviewed a binder of evidence and heard from
the appellant’s attorney. ID at 12-13; IAF, Tab 6 at 203-04, 210, 212-403. The
SRB concluded that it had “serious, unanimous concerns about the [appellant’s]
competency and conduct,” and it recommended his termination. ID at 13; IAF,
Tab 6 at 203-04. The Acting Chief of Staff reviewed the SRB’s recommendation
and recommended that the appellant be terminated. IAF, Tab 6 at 201. The
Medical Center Director concurred with the SRB’s recommendation, and the
appellant was terminated during his probationary period, effective October 14,
2011. ID at 13; IAF, Tab 6 at 195, 197-98.
¶4 The appellant filed this IRA appeal, alleging that the agency terminated him
during his probationary period because of his whistleblowing disclosures. ID
2
The record reflects that the terms “Summary Review Board” and “Professional
Standards Board” are used interchangeably. Hearing Transcript 1 at 192-93. For
consistency, we only use the term “Summary Review Board” or SRB.
4
at 13; IAF, Tab 1. The appeal was dismissed without prejudice and refiled. ID
at 13-14; IAF, Tab 18; AF-2, Tab 1. The chief administrative judge found that
the appellant exhausted his administrative remedy with the Office of Special
Counsel and nonfrivolously alleged that he made protected disclosures that were a
contributing factor in the agency’s decision to terminate him. ID at 14; AF-2,
Tab 12 at 5, Tab 15 at 1-2. The parties entered into several stipulations. ID
at 14-15; AF-2, Tab 32 at 2. The chief administrative judge held the requested
hearing and issued a bench initial decision. ID at 1, 8-26; Hearing Transcripts
(HTs). 3 Based on the parties’ stipulations, the chief administrative judge found
that the appellant proved by preponderant evidence that he made protected
disclosures that were a contributing factor in the agency’s decision to terminate
him. ID at 14-16; HT-1 at 5 (preliminary remarks of the chief administrative
judge). She also concluded that the agency proved by clear and convincing
evidence that it would have terminated the appellant absent his whistleblowing
disclosures. ID at 16-26. The chief administrative judge therefore denied the
appellant’s request for corrective action. ID at 1.
¶5 The appellant has filed a petition for review and a supplement to the
petition for review, the agency has filed a response, and the appellant has filed a
reply. Petition for Review (PFR) File, Tabs 1, 7, 10, 15. On review, the
appellant asserts that the chief administrative judge ignored his retaliation theory,
“misapplied” the clear and convincing standard, improperly found similarly
situated comparators, and excluded evidence of nonwhistleblowers who were
treated more favorably. PFR File, Tab 7 at 8-20. 4
3
The hearing in this case lasted 3 days. Citations to the first day of the hearing
(April 21, 2016) are listed as “HT-1,” the second day (April 22, 2016) as “HT-2,” and
to the third day (May 12, 2016) as “HT-3.”
4
Because the appellant’s supplemental petition for review includes citations to the
hearing transcripts, we refer to this document in our discussion of his arguments
on review.
5
DISCUSSION OF ARGUMENTS ON REVIEW
We modify the initial bench decision to clarify that the parties may only stipulate
to facts, but we affirm the chief administrative judge’s conclusion that the
appellant proved that he made whistleblowing disclosures that were a
contributing factor in the agency’s decision to terminate him.
¶6 To establish a prima facie case of retaliation for whistleblowing disclosures,
the appellant must prove by preponderant evidence that he made a protecte d
disclosure that was a contributing factor in a personnel action taken against him.
5 U.S.C. § 1221(e)(1); Lu v. Department of Homeland Security, 122 M.S.P.R.
335, ¶ 7 (2015). 5
¶7 In the initial bench decision, the chief administrative judge cited to 5 C.F.R.
§ 1201.63, which states that the parties may stipulate to any matter of fact and the
stipulation will satisfy the parties’ burden of proving the facts alleged . ID at 15.
The chief administrative judge found that the agency “stipulated” to the
appellant’s “protected disclosures” and to the knowledge/timing components of
contributing factor. Id. However, the Board has held that whether a disclosure is
protected is a matter of law not subject to stipulation. Wojcicki v. Department of
the Air Force, 72 M.S.P.R. 628, 634 (1996); see King v. Department of Veterans
Affairs, 105 M.S.P.R. 21, ¶ 16 n.2 (2007) (stating that the parties may stipulate to
facts, but not legal conclusions). We modify the initial bench decision to clarify
our understanding of the parties’ stipulations, i.e., that the parties stipulated to the
content and timing of the appellant’s two disclosures and that the Medical Center
Director had knowledge of the appellant’s disclosures before the effective date of
the termination.
5
All of the relevant events, including the appellant’s termination, occurred before the
December 27, 2012 effective date of the Whistleblower Protection Enhancement Act of
2012. Pub. L. No. 112-199, § 202, 126 Stat. 1465, 1476. We have considered those
amendments, but a different outcome is not warranted. We have also reviewed the
other relevant legislation enacted during the pendency of this appeal and have
concluded that it does not affect the outcome of the appeal.
6
¶8 Based in part on the parties’ stipulation of facts, we agree with the chief
administrative judge that the appellant made a protected whistleblowing
disclosure when, in June—July 2011, he disclosed that the Performance
Improvement Department was maintaining illegal files on providers and
discriminatorily using the information to criticize the providers’ work without
giving constructive assistance, as well as conducting sham peer reviews . ID
at 15; IAF, Tab 24 at 13; AF-2, Tab 12 at 17-27; see, e.g., Wheeler v. Department
of Veterans Affairs, 88 M.S.P.R. 236, ¶ 13 (2001) (stating that an abuse of
authority occurs when a Federal official or employee arbitrarily or capriciously
exercises power that adversely affects the rights of any person or that results in
personal gain or advantage to himself or to preferred other persons).
¶9 We further find that, in August 2011, he made a protected whistleblowing
disclosure when he disclosed that a particular doctor and the Veterans Integrated
Service Network (VISN) management were mismanaging Federal funds. ID
at 15; AF-2, Tab 12 at 10-15; see White v. Department of the Air Force,
63 M.S.P.R. 90, 95 (1994) (explaining that gross mismanagement means a
management action or inaction which creates a substantial risk of significant
adverse impact upon the agency’s ability to accomplish its mission). 6
¶10 Having affirmed the chief administrative judge’s determination that the
appellant made protected whistleblowing disclosures, we now turn to whether the
appellant proved that his whistleblowing disclosures were a contributing factor in
the agency’s decision to terminate him. One way to demonstrate contributing
factor is the knowledge/timing test, which allows an employee to show through
circumstantial evidence, such as evidence that the official taking the personnel
action knew of the whistleblowing disclosures and the personnel action occurred
within a period of time such that a reasonable person could conclude that the
whistleblowing disclosures were a contributing factor in the personnel action.
6
The appellant does not challenge the chief administrative judge’s finding that two
other disclosures were not protected, and we affirm that finding herein. ID at 14-15.
7
5 U.S.C. § 1221(e)(1)(A)-(B); Carey v. Department of Veterans Affairs,
93 M.S.P.R. 676, ¶ 11 (2003). The chief administrative judge mentioned the
knowledge/timing test in the initial bench decision, ID at 15, and we supplement
her analysis herein.
¶11 This case is somewhat unusual in that the appellant’s disclosures were made
in correspondence that he wrote but that did not bear his name or signature;
rather, the correspondence was signed or appeared to be authored by the union
president. E.g., AF-2, Tab 24 at 13, 27-43; HT-2 at 366, 373-74 (testimony of the
union president). The Medical Center Director, who ultimately decided to
terminate the appellant, had knowledge of the correspondence. However, there is
conflicting evidence regarding when the Medical Center Director learned that the
appellant authored the correspondence that contained the whistleblowing
disclosures. Compare HT-2 at 374-75 (testimony of the union president that the
Medical Center Director knew that it was the appellant who authored the letters at
the end of June 2011 or the beginning of July 2011), with HT-2 at 257-58
(testimony of the Medical Center Director that he did not learn that the appellant
authored the letters until around August 8, 2011, or August 10, 2011). In any
event, we need not resolve this discrepancy because the Medical Center Director
had such knowledge before the termination notice was issued. IAF, Tab 6
at 197-98. 7 Thus, we find that the knowledge component is satisfied.
¶12 We also find that the timing component of the knowledge/timing test is
satisfied because the correspondence containing the appellant’s disclosures
occurred during the June—August 2011 timeframe, and his termination was
effective on October 14, 2011. See Ormond v. Department of Justice,
118 M.S.P.R. 337, ¶ 13 (2012) (finding that 6 months between a disclosure and a
personnel action was sufficiently proximate to allow a reasonable person to
7
Although the termination letter was signed by another agency employee, IAF, Tab 6
at 198, the parties stipulated that the agency employee signed the letter at the Medical
Center Director’s behest, ID at 15.
8
conclude that the disclosure was a contributing factor in the personnel action).
We therefore discern no error with the chief administrative judge’s conclusion
that the appellant proved that his whistleblowing disclosures were a contributing
factor in the agency’s decision to terminate him. ID at 15-16.
We agree with the chief administrative judge that the agency proved by clear and
convincing evidence that it would have terminated the appellant absent his
whistleblowing disclosures.
¶13 Because the appellant made out a prima facie case, the agency is given an
opportunity to prove by clear and convincing evidence tha t it would have
terminated him during his probationary period in the absence of the
whistleblowing disclosures. 5 U.S.C. § 1221(e)(1)-(2); Lu, 122 M.S.P.R. 335,
¶ 7. In determining whether the agency has met this burden, the Board will
consider the following factors: the strength of the agency’s evidence in support of
its action; the existence and strength of any motive to retaliate on the part of the
agency officials who were involved in the decision; and 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). When conducting an assessment of these
factors, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has
instructed the Board to “evaluate all the pertinent evidence in determining
whether an element of a claim or defense has been proven adequately.”
Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012). 8 For
8
Historically, the U.S. Court of Appeals for the Federal Circuit was the only route to
appeal a final decision of the MSPB. However, as a result of changes initiated by the
Whistleblower Protection Enhancement Act of 2012 (Pub. L. No. 112-199, 126 Stat.
1465), extended for three years (All Circuit Review Extension Act, Pub. L.
No. 113-170, 128 Stat. 1894), and eventually made permanent (All Circuit Review Act,
Pub. L. No. 115-195, 132 Stat. 1510), appellants may file petitions for judicial review
of MSPB decisions in whistleblower reprisal cases with any circuit court of appeals of
competent jurisdiction.
9
the following reasons, we agree with the chief administrative judge that the
agency satisfied this burden.
The agency’s evidence was strong.
¶14 In the initial bench decision, the chief administrative judge found that the
agency’s evidence was strong because the SRB unanimously recommended that
the appellant’s employment be terminated. ID at 24-25. We agree with that
conclusion. 9 Moreover, we note that reports concerning deficiencies in the
appellant’s patient care began to surface at least by February 2011—well before
the Medical Center Director learned in the June to August 2011 timeframe that
the appellant made the disclosures at issue. IAF, Tab 6 at 264, 331-36, 341-42,
364. By May 2011, the then Chief of Staff identified the appellant, among others,
in an email about providers who were causing patient safety concerns and advised
the Medical Center Director and other agency officials that the agency should
“clos[e] the loop on [the appellant] prior to October,” when the appellant’s
probation was to end. AF-2, Tab 25 at 28; HT-2 at 360 (testimony of the former
chief of staff).
¶15 Although we discuss below the appellant’s arguments regarding his theory
of retaliation, we address some of his concerns regarding the circumstances
surrounding the initiation of the SRB, the composition of its members, and the
evidence that was presented to it, because these issues relate to the strength of the
agency’s evidence. For example, we have considered the appellant’s assertion
that the SRB was “initiated under very suspicious circumstances.” PFR File,
Tab 7 at 14. The chief administrative judge indicated that there was no evidence
of any procedural impropriety regarding how the SRB was convened or that the
9
The chief administrative judge noted in the initial bench decision that she did not have
the authority to examine or alter the SRB’s recommendation, but she considered
evidence of procedural error or bias of any SRB members. ID at 18-19. The appellant
does not appear to challenge the chief administrative judge’s findings in this regard on
review and we see no reason to disturb them.
10
SRB was created to apply only to the appellant. ID at 18-19 (finding that “the
evidence was clear that the SRB was an established process used routine ly by the
VA”); IAF, Tab 6 at 396-403 (the agency’s Handbook describing probationary
period actions, including SRBs). The Associate Chief of Staff for Primary Care
submitted the request for the SRB on August 19, 2011, IAF, Tab 6 at 204, which
was after the Medical Center Director learned that the appellant made
whistleblowing disclosures. However, there is no evidence that the Medical
Center Director informed the Associate Chief of Staff for Primary Care of the
disclosures; in fact, the Associate Chief of Staff for Primary Care testified that
when he initiated the SRB in August 2011, he was not “aware of any complaints
or concerns” that the appellant had raised regarding performance improvement or
the mismanagement of Federal funds by the VISN or its direc tor. HT-2 at 411
(testimony of the Associate Chief of Staff for Primary Care).
¶16 We also are not persuaded that the SRB was tainted because of the
composition of its members. The chief administrative judge found that one
member of the SRB was a primary care physician, and another member, a doctor,
had performed in a primary care setting; in any event, the chief administrative
judge concluded that there was no evidence that SRB members had to be from the
same discipline as the subject of an SRB review. ID at 22-23. The appellant
cites to no evidence on review that the chief administrative judge’s conclusion
was erroneous. There also does not appear to be any evidence of bias on the part
of any SRB member against the appellant. For instance, the Chair of the SRB
testified that he “met [the appellant] a few times in a social setting,” and “liked
[him] as a person.” HT-1 at 87-88 (testimony of the Chair of the SRB). In
addition, the SRB member who also testified that he was a primary care physician
never met the appellant. HT-1 at 35-36 (testimony of the SRB member who was a
primary care physician).
¶17 We have considered the appellant’s assertion that the SRB was provided
“fewer than 1%” of his patient files for review and that some of the files included
11
complaints about patient care from when he first began working at the agency in
2009. PFR File, Tab 7 at 15-16. We are not persuaded that the information
provided to the SRB was improper. The chief administrative judge acknowledged
that the SRB only reviewed a small portion of the appellant’s patient files, but she
explained that there was no evidence that the SRB’s review of a small percentage
of negative cases was improper or that a random sampling of cases or a different
percentage of cases was required. ID at 22. Indeed, she noted that one SRB
member testified that an SRB necessarily involves a review of a small percentage
of cases. ID at 20; see HT-1 at 76 (testimony of the SRB member who was a
primary care physician explaining that it “would take years” to review all of a
physician’s patient files).
¶18 Next, the appellant challenges the chief administrative judge’s analysis of
certain evidence. For instance, he asserts that the chief administrative judge’s
analysis was inconsistent with Whitmore because she would not speculate as to
why his past performance evaluations were rated satisfactory, but he received an
unsatisfactory evaluation after he made whistleblowing disclosures. 10 PFR File,
Tab 7 at 9; ID at 22. Compare IAF, Tab 6 at 241-42; AF-2, Tab 25 at 51, with
IAF, Tab 6 at 239-40. We disagree. The initial bench decision reflects that the
chief administrative judge considered this evidence, inasmuch as she noted that
an earlier performance evaluation indicated that the appellant was “satisfactory”
considering that he was “new” to the agency. ID at 22; IAF, Tab 6 at 242. In
fact, the comments of that August 2010 evaluation stated that the appellant “still
needs to work hard on developing templates & program notes.” IAF, Tab 6
at 242. Therefore, it appears that the chief administrative judge did not give the
earlier evaluation much weight, given the appellant’s short tenure at the agency.
Moreover, the appellant does not cite, and we are not aware of, any interpretation
10
The SRB was presented with information regarding the appellant’s earlier
evaluations. IAF, Tab 6 at 204.
12
of Whitmore that requires an administrative judge to speculate further about such
evidence. 11 Thus, this argument is unavailing. 12
¶19 The appellant also asserts that the chief administrative judge finding the
former Chief of Staff to be not credible was improper because the chief
administrative judge “did not rely on any particular demeanor of the witnesses.”
PFR File, Tab 7 at 10. This argument is unavailing. When, as here, the chief
administrative judge heard live testimony, her credibility determinations must be
deemed to be at least implicitly based on witness demeanor. Little v. Department
of Transportation, 112 M.S.P.R. 224, ¶ 4 (2009). Moreover, the Board must
defer to an administrative judge’s credibility determinations when they are based,
explicitly or implicitly, on observing 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). The appellant has not presented such
sound reasons.
¶20 In fact, we discern no error with the chief administrative judge’s credibility
determinations. The chief administrative judge found all of the witnesses “fully
credible,” except for the former Chief of Staff, because his testimony was
“inconsistent with documents and other credible testimony,” and he was “biased
against any nonmedical personnel having involvement with medical personnel.”
11
As a result of the all circuit review provisions of the Whistleblower Protection
Enhancement Act of 2012 and subsequent laws, we must also consider this issue with
the view that the appellant ultimately may seek review of this decision before any
appropriate court of appeal. See 5 U.S.C. § 7703(b)(1)(B).
12
We also are not persuaded that the discrepancy in his evaluations is analogous to
Whitmore, 680 F.3d at 1376, in which the Federal Circuit found that Mr. Whitmore had
“decades of exceptional service” before he started making disclosures in 2005, which
“marked the beginning of his increasingly strained relationships with [agency] officials,
and how his disclosures paralleled his increasingly poor performance reviews.” By
contrast, the appellant’s evaluations, covering the time period of October 2009 through
June 2011, were satisfactory, with comments as noted above, and his August 18, 2011
proficiency report was “unsatisfactory.”
13
ID at 16-17. It was appropriate for the chief administrative judge to make
credibility determinations based on, among other things, the contradiction of the
former chief of staff’s version of events by other evidence and/or the witness’s
bias. Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987); ID at 17.
¶21 The appellant asserts that the former chief of staff was in the best position
to evaluate his performance because he completed some of the appellant’s rece nt
evaluations. PFR File, Tab 7 at 11-12. However, as noted above, the prior
evaluations were only “satisfactory” and do not appear to reflect the former chief
of staff’s concerns about the appellant’s performance as a physician. For
example, in an email dated May 19, 2011 (prior to the appellant’s protected
whistleblowing disclosures) to the Medical Center Director, among other agency
officials, the former chief of staff wrote concerning employees, including the
appellant, who caused “[p]atient safety concerns,” emphasized that the
appellant’s probation ended in October 2011, and advised that the agency should
“clos[e] the loop” on the appellant “prior to October.” E.g., AF-2, Tab 25 at 28.
Accordingly, we discern no error with the chief administrative judge’s credibility
determinations. Regarding the appellant’s assertion that the SRB was not given
his notes, PFR File, Tab 7 at 16, he does not explain on review what information
was contained in his notes or why his attorney, who appeared before th e SRB on
his behalf, did not provide his notes or a summary of the information contained
therein to the SRB.
¶22 In conclusion, one SRB member testified that the reason the SRB felt
confident in its decision to recommend that the appellant’s employment be
terminated was because the information that the SRB reviewed documented
various categories of problems, including heart issues, medication issues, and
patient autonomy issues, which demonstrated that the appellant engaged in a
“consistent pattern of a lack of quality care.” HT-1 at 76 (testimony of the SRB
member who was a primary care physician). The evidence supports the SRB’s
14
conclusion and unanimous recommendation, and we agree with the chief
administrative judge that the agency’s evidence was strong.
We modify the initial bench decision to clarify that the Medical Center
Director had some motive to retaliate against the appellant for his
whistleblowing disclosures.
¶23 In the initial bench decision, the chief administrative judge described the
Medical Center Director as being “agitated,” “irritated,” and “very upset” about
the appellant’s complaints regarding clinical care issues , but she cited his
testimony that the appellant’s union involvement did not influence his decision to
terminate the appellant’s employment. ID at 21, 23. She concluded that there
was “no evidence” of a retaliatory motive on the SRB members’ part when they
recommended termination or on the Medical Center Director’s part when he
adopted the SRB recommendation. ID at 25. We agree with the appellant, PFR
File, Tab 7 at 16-17, that the chief administrative judge’s analysis of this Carr
factor was inconsistent with Board precedent based on Whitmore, 680 F.3d
at 1370, which found that “[t]hose responsible for the agency’s p erformance
overall may well be motivated to retaliate even if they are not directly implicated
by the disclosures and even if they do not know the whistleblower personally, as
the criticism reflects on them in their capacities as managers and employers.” See
also Robinson v. Department of Veterans Affairs, 923 F.3d 1004, 1019 (Fed. Cir.
2019) (considering under the second Carr factor whether there was a professional
motive to retaliate); Wilson v. Department of Veterans Affairs, 2022 MSPB 7,
¶ 65 (addressing the second Carr factor consistent with Whitmore to find that the
appellant’s disclosures generally put higher-level management officials in a
critical light by disclosing problems for which they were responsible); Smith v.
Department of the Army, 2022 MSPB 4, ¶¶ 28-29 (addressing the second Carr
factor consistent with Whitmore to find that the misconduct the appellant
disclosed was egregious and generated negative publicity, thereby reflecting
poorly on the general institutional interests of the agency) . We therefore modify
15
the initial bench decision to find that the Medical Center Director’s strong,
negative feelings about the appellant’s whistleblowing disclosures constitute
some evidence of a motive to retaliate. 13
¶24 The appellant contends that the chief administrative judge ignored his
theory of retaliation, namely that the agency fabricated performance issues to
terminate him. PFR File, Tab 7 at 8-13. In this regard, the appellant asserts that
the agency “hand[-]picked” the members of the SRB and the information
provided to the SRB, and then relied on the SRB’s decision to justify its decision
to terminate him. Id. at 12. The appellant does not assert that any SRB members
had a motive to retaliate against him; rather, he contends that the SRB was the
“unwitting conduit” in the agency’s retaliation. Id. at 13.
¶25 The U.S. Supreme Court has adopted the term “cat’s paw” to describe a
theory explaining instances in which a particular management official, acting
because of improper animus, influences an agency official who is unaware of the
improper animus when implementing a personnel action. Dorney v. Department
of the Army, 117 M.S.P.R. 480, ¶ 11 (2012) (citing Staub v. Proctor Hospital,
562 U.S. 411 (2011)). We have considered the cat’s paw theory in this matter .
We are not persuaded that the Medical Center Director improperly infl uenced any
member of the SRB. Two SRB members testified, but neither of them indicated
that they were influenced by the Medical Center Director or any other agency
official or that they were instructed to make a particular recommendation . HT-1
at 76 (testimony of the SRB member who was a primary care physician that “[n] o
one in the room seemed to have an axe to grind [or] any personal issues”), 101
(testimony of the Chair of the SRB stating that the outcome was “fair and
13
To the extent that the appellant contends that the Associate Chief of Staff for Primary
Care had a motive to retaliate against him or otherwise had knowledge that he was
named in one of the appellant’s disclosures, PFR File, Tab 7 at 16-17, there is no
evidence to support this assertion, see supra ¶ 15. In the absence of any such evidence,
we need not consider whether the Associate Chief of Staff for Primary Care improperly
influenced the SRB in any way. PFR File, Tab 7 at 13.
16
objective”). We also have considered the circumstantial evidence of improper
influence, such as how the SRB was initiated, which members were selected, and
the evidence that was presented to the SRB. However, we are not persuaded that
there is evidence of a strong motive to retaliate on the part of the Medical Center
Director. Indeed, if the Medical Center Director was hand -picking the SRB
members, as the appellant suggests, it strains credulity that he would select the
Chair of the SRB because of his prior personal relationship with the appellant.
HT-1 at 87-88 (testimony of the Chair of the SRB). Moreover, the record reflects
that various agency officials raised concerns about the appellant’s competence
months before he wrote the correspondence containing the whistleblowing
disclosures and before his authorship of this correspondence was even known to
the Medical Center Director. See, e.g., IAF, Tab 6 at 253-54, 263-64, 318, 331,
334-36, 341-42, 364; AF-2, Tab 25 at 25-29.
¶26 Finally, we have considered the appellant’s assertion that the chief
administrative judge improperly applied the preponderant evidence standard when
she found that it was “reasonable” for the Medical Center Director to rely on the
unanimous SRB recommendation as justification for the termination action. PFR
File, Tab 7 at 13-17; ID at 23-25. Clear and convincing evidence “is that measure
or degree of proof 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(e). It is a higher
standard than preponderant evidence, which is “the degree of relevant evidence
that a reasonable person, considering the record as a whole, would accept as
sufficient to find that a contested fact is more likely to be true than untrue .”
Elder v. Department of the Air Force, 124 M.S.P.R. 12, ¶ 42 (2016); 5 C.F.R.
§ 1201.4(q). Although unclear, the appellant appears to be confusing the chief
administrative judge’s use of the term “reasonable” with the use of the
“reasonable person” standard in the definition of preponderant evidence as
described in 5 C.F.R. § 1201.4(q). The chief administrative judge’s use of the
term “reasonable” in this regard does not—standing alone—persuade us that she
17
improperly applied the preponderant evidence standard in evaluating this Carr
factor. Thus, we find that this argument is without merit.
The agency proved that it took similar actions against employees who
were not whistleblowers but who were otherwise similarly situated.
¶27 In the initial bench decision, the chief administrative judge wrote that the
agency identified a number of physicians who went before an SRB who were not
whistleblowers. ID at 25. The chief administrative judge also noted that one
physician was terminated and another was reassigned based on the SRB’s
recommendation. Id. We have considered the appellant’s argument that two
nonwhistleblower physicians who were subject to an SRB’s review committed
“egregious failures of patient care,” and, thus, they were not similarly situated to
him. PFR File, Tab 7 at 16-18. However, in Whitmore, 680 F.3d at 1373, the
Federal Circuit advised that “the requisite degree of similarity between employees
cannot be construed so narrowly that the only evidence helpful to the inquiry is
completed disregarded.” Thus, the court held that comparators need not be
“identically situated,” but only “similarly situated.” Id. The fact that other
physicians who were called before an SRB may have committed more severe
failures of patient care than the appellant does not prevent them from being
similarly situated to him. The agency’s Handbook states that an SRB is “limited
to situations where summary separation from Federal service may be justified,”
and it explains that the primary purpose of the SRB is “to obtain available facts
and determine whether the employee is fully qualified and satisfactory.” IAF,
Tab 6 at 397, 399. Thus, there may be somewhat varying circumstances that lead
to the convening of an SRB.
¶28 We also have considered the appellant’s assertion that the chief
administrative judge improperly excluded evidence of nonwhistleblowers who
were treated more favorably than him. PFR File, Tab 7 at 18-20 (the appellant’s
objection raised during the testimony of the Acting Chief of Staff ). We reviewed
this portion of the hearing transcript. There, the agency objected to the
18
appellant’s questions about the fairness of an SRB being convened for the
appellant when the agency had concerns about other physicians’ quality of care,
and the chief administrative judge sustained the objections because there was no
evidence that the witness was aware of other physicians with patient care issues.
HT-1 at 128, 130-31 (the appellant’s objections raised during the testimony of the
Acting Chief of Staff). We discern no error with the chief administrative judge’s
decision to sustain the agency’s objections until a proper foundation was laid for
the witness to testify about quality of care concerns involving other physicians.
5 C.F.R. § 1201.41(b). Indeed, the appellant subsequently inquired about the
witness’s knowledge of specific physicians with whom the agency had quality of
care issues, and based on the witness’s affirmative answer, asked if the witness
questioned why an SRB was convened for the appellant but not another physician.
HT-1 at 131-35 (testimony of the Acting Chief of Staff).
Conclusion
¶29 Nothing in the whistleblower protection statutes prohibits an agency from
taking an action against an employee about whom it has performance and/or
conduct concerns prior to any agency official’s awareness of the employee’s
whistleblowing disclosures. Having considered the three Carr factors, and the
evidence and argument cited by the appellant on review, we agree with the chief
administrative judge that the agency proved by clear and convincing evidence that
it would have terminated the appellant during his probationary period absent his
whistleblowing disclosures. Therefore, we deny his request for corrective action.
The initial bench decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter.
19
NOTICE OF APPEAL RIGHTS 14
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
14 14
Since the issuance of the initial decision in this matter, the Board may have
updated the notice of review rights included in final decisions. As indicated in the
notice, the Board cannot advise which option is most appropriate in any matter.
20
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit ou r website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
21
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
22
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 15 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
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, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
15
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
23
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.