Neal Elkin v. Department of Veterans Affairs ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NEAL E. ELKIN, DOCKET NUMBER
Appellant, SF-1221-20-0387-W-1
v.
DEPARTMENT OF VETERANS DATE: July 18, 2022
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Neal E. Elkin, Ann Arbor, Michigan, pro se.
Coleen L. Welch, Martinez, California, 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 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 th e 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 and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 As further detailed throughout the record and initial decision, the appellant
began working as a primary care physician for the agency’s Ukiah Community
Based Outpatient Clinic (CBOC) in March 2016. Initial Appeal File (IAF),
Tab 62, Initial Decision (ID) at 2. He quickly and consistently found the
workload unmanageable, and he regularly clashed with nursing st aff and
managers alike. ID at 3-10. In September 2016, just 6 months into his time with
the agency, the appellant first expressed his intent to resign. ID at 10. Although
he would later change his mind about resigning, repeatedly, he continued to have
difficulties with his workload, and his relationships with other employees
continued to deteriorate. ID at 10-22. In January 2018, the appellant chose to
stop working at the clinic, and he went on extended leave until he resigned almost
2 years later. ID at 22-24.
¶3 In the instant appeal, the appellant alleged that he was subject to
whistleblower reprisal. IAF, Tab 1. After developing the record and holding the
requested hearing, the administrative judge denied the appellant’s request for
3
corrective action. IAF, Tabs 49, 51, 53 (Hearing Recording, Days 1-3
(HR1-HR3)); ID at 1. She addressed the following sets of disclosures, activities, 2
and personnel actions:
Disclosure 1 – inaccurate blood pressure readings,
Disclosure 2 – lack of clinic supplies,
Disclosure 3 – prior lapses in patient care,
Disclosure 4 – inadequate or improper nursing support,
Disclosure 5 – violation of conduct rules by another physician,
Disclosure 6 – improper handling of a cancer patient’s complaint,
Disclosure 7 – lapse in building security,
Disclosure 8 – improper appointment to an Administrative Investigative Board
(AIB), and
Disclosure 9 – improper workload.
Activity 1 – contact with the Office of Accountability and Whistleblower
Protection (OAWP),
Activity 2 – contact with the agency’s Office of Inspector General (OIG), and
Activity 3 – contact with an agency AIB.
Personnel Action 1 – a November 2017 admonishment,
Personnel Action 2 – a hostile work environment,
Personnel Action 3 – a December 2017 letter changing work conditions, and
Personnel Action 4 – an involuntary resignation.
2
The administrative judge explained that the appellant never provided a concise list of
his alleged disclosures and activities. ID at 26. For that reason, they are described
differently throughout the pleadings below and on review. For the sake of simplicity
and clarity, we are ordering the sets of disclosures, activities, and personnel actions in
the same way as the initial decision, while also numbering them and providing a more
succinct description of each.
We separately note that there is significant overlap amongst the disclosures and
activities the appellant identified. For example, the appellant engaged in extensive
communications about his workload, which the administrative judge analyzed und er
both the protected disclosure and protected activity provisions of the whistleblower
statute, depending on the recipient. ID at 43, 48. Further complicating matters, some
of the appellant’s communications involved multiple matters, such that the
administrative judge at times considered a single communication under more than one
category of disclosures. For example, the administrative judge found that one email
contained a protected disclosure about a prior lapse in patient care but additional
complaints in the email about the appellant’s workload were not protected. ID at 35, 44
(discussing IAF, Tab 38 at 33-34).
4
ID at 26-30. Of these, the administrative judge found that the appellant met his
burden of proving that at least a portion of Disclosures 3, 5, 7, and 8 were
protected, as were Activities 1, 2, and 3, but he failed to do the same with his
other disclosures. ID at 31-48. The administrative judge also found that the
appellant met his burden of proving the existence and coverage of Personnel
Actions 1 and 3 under the whistleblower statute but not Personnel Actions 2
and 4. ID at 48-66.
¶4 The administrative judge next found that the appellant proved that
Disclosures 3, 5, 7, and 8 were a contributing factor in Personnel Actions 1 and 3,
but he failed to do the same for Activity 1, 2, or 3. ID at 66-68. Finally, upon
shifting the burden for only those matters that remained, the administrative judge
found that the agency proved that it would have taken the same personnel actions
in the absence of the appellant’s protected disclosures. ID at 68 -77.
¶5 The appellant has filed a petition for review that primarily presents
arguments about the disclosures the administrative judge found not protected.
Petition for Review (PFR) File, Tab 5. The agency has filed a response , and the
appellant has replied. PFR File, Tabs 7, 12. 3
¶6 After establishing jurisdiction in an IRA appeal, an appellant has the burden
of proving by preponderant evidence that: (1) he made a protected disclosure
described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described
under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or
3
With his reply, the appellant attached hundreds of pages of unexplained evidence.
PFR File, Tab 12 at 31-290. We have not considered this evidence because the
appellant presented no basis for us to conclude that it is both new and material. Russo
v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (recognizing that the Board will
not grant a petition for review based on new evidence absent a showing that it is of
sufficient weight to warrant an outcome different from that of the initial decision);
Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980) (recognizing that,
pursuant to 5 C.F.R. § 1201.115, the Board generally will not consider evidence
submitted for the first time with a petition for review absent a showing that it was
unavailable before the record was closed before the administrative judge despite the
party’s due diligence).
5
protected activity was a contributing factor in the agency’s decision to take or fail
to take a personnel action as defined by 5 U.S.C. § 2302(a). Salerno v.
Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). If the appellant meets
this burden, the agency is given an opportunity to prove, by clear and convinci ng
evidence, that it would have taken the same personnel action in the absence of the
protected disclosure or activity. Id.The appellant failed to prove that Disclosures 1, 2, 4, 6, or 9 were protected under
section 2302(b)(8).
¶7 The vast majority of the appellant’s petition for review consists of
arguments that the sets of disclosures we identified as Disclosures 1, 2, 4, 6,
and 9 were protected, and the administrative judge erred by finding otherwise. 4
PFR File, Tab 5 at 5. To address those arguments, we first note the proper
analytical framework for determining whether a disclosure is protected.
¶8 A protected disclosure is one that the appellant reasonably believed
evidenced gross mismanagement, a gross waste of funds, an abuse of authority, a
substantial and specific danger to public health or safety, or any violation of a
law, rule, or regulation. 5 U.S.C. § 2302(b)(8)(A). The disclosure must have
been specific and detailed, not a vague allegation of wrongdoing regarding broad
or imprecise matters. Rzucidlo v. Department of the Army, 101 M.S.P.R. 616,
¶ 13 (2006). The proper test for determining whether an employee had a
reasonable belief that his disclosures revealed misconduct prohibited under the
whistleblower statute is the following: Could a disinterested observer with
knowledge of the essential facts known to and readily ascertainable by the
4
As alluded to previously, the appellant’s description and numbering of these
disclosures is somewhat different than the description and numbering we will use in this
decision. For example, that which we have described as Disclosure 2 – lack of clinic
supplies, the appellant describes as a disclosure that the agency was running out of
nebulizers for patients with difficulty breathing. PFR File, Tab 5 at 5. That which we
have described as Disclosure 6 – improper handling of a cancer patient’s complaint, the
appellant describes as a disclosure of delayed care for the patient. Id.6
employee reasonably conclude that the actions of the government evidence
wrongdoing as defined by the whistleblower statute? Id., ¶ 14.
¶9 The types of protected disclosures most relevant to the appellant’s
arguments on review are those concerning an abuse of authority or a substantial
and specific danger to public health or safety. Regarding the former, the Board
has explained that an abuse of authority is an arbitrary or capricious exercise of
power by a federal official or employee that adversely affects the rights of any
person or that results in personal gain or advantage to himself or to preferred ,
other persons. Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 15 (2014).
Regarding the latter, the Board has explained that disclosures about a danger to
the public must be both substantial and specific to be protected. Schoenig v.
Department of Justice, 120 M.S.P.R. 318, ¶ 10 (2013). Factors to be considered
in determining whether a disclosed danger is sufficiently su bstantial and specific
to be protected include the likelihood of harm, when the alleged harm may occur,
and the potential consequences of the harm. Id. Disclosure of an imminent event
is protected, but disclosure of a speculative danger is not. Id. To illustrate with a
relevant example, the Board once found that an employee’s disclosures were
protected where he reasonably believed he was disclosing systemic problems
regarding inadequate patient care with specific examples of misdiagnoses and
misdirection of patients. Parikh v. Department of Veterans Affairs,
116 M.S.P.R. 197, ¶¶ 12, 15-23 (2011). With that background in mind, we now
turn to the sets of disclosures the appellant reasserts on review.
Disclosure 1 – inaccurate blood pressure readings
¶10 The appellant made disclosures about the accuracy of blood pressure
readings to the individual who served as Administrative Director and Nursing
Supervisor (CBOC Manager) on at least two occasions, in April and
September 2016. IAF, Tab 48 at 4. According to the appellant, his concern
began on his very first day working for the clinic and continued throughout the
7
time that followed because he sometimes found that a patient’s blood pressure
was recorded as “lower and closer to normal” than he found when checking a
patient’s blood pressure himself. E.g., IAF, Tab 12 at 6-7, Tab 38 at 15-16. The
administrative judge concluded that the appellant failed to meet his burden for
this set of disclosures. ID at 31-32.
¶11 On review, the appellant argues that this set of disclosures was protected
because it revealed a substantial and specific threat to public health and safety.
PFR File, Tab 5 at 6-10. To do so, he asserts that at least some of the blood
pressure inconsistencies he found were far more extreme and dangerous than
should be expected. Id. He directs us to a document dated September 15, 2016,
at 3:00 a.m. Id. at 6 (referencing IAF, Tab 38 at 112-14). This document states
that the appellant had seen a patient and measured his blood pressure as 200, even
though the patient’s medical record listed his blood pressure as 118. IAF, Tab 38
at 112-14. However, the document reads like a diar y entry, written when the
appellant was unable to sleep due to the stress of his job. Id. It is not addressed
to anyone, and it does not provide further information. Id. For example, the
document does not identify the patient, the source of the lower b lood pressure
reading, any suspected wrongdoing, or any indication that the appellant disclosed
this specific instance to someone with the agency. Id.¶12 We found additional evidence from later that same day, where the appellant
did email the CBOC Manager about how he wanted nurses to measure blood
pressure, and he mentioned a “major error” from a couple of days earlier.
IAF, Tab 38 at 119-23. However, the “major error” was not further described.
When the CBOC Manager asked for the patient’s name, the ap pellant did not
provide that name; he simply stated that the patient was “doing fine and his BP is
under control.” Id. at 120. The appellant further stated that he does his own
recheck of blood pressures, “so [he is] not concerned that [he will] miss any thing
at this point,” but he did not know whether others did the same . Id. In a final
pair of follow-up emails, the CBOC Manager once again asked for the patient’s
8
name, but the appellant’s response provided neither the patient’s name nor the
attending nurse’s name. Id. at 119. The appellant indicated that he would rather
discuss the matter in person. Id.¶13 Here, it is not apparent that the appellant reasonably believed that he was
disclosing anything other than changes in patients’ blood pressure. Although the
appellant’s concerns about the clinic nursing staff’s blood pressure measurements
began on his very first day seeing patients, and his first disclosure about the same
occurred just a couple weeks later, id. at 15, he did not identify any particular
impropriety that caused the alleged differences in blood pressure readings, any
particular nurse associated with the readings, or any particular suspicion he may
have had about the issue. E.g., ID at 31; IAF, Tab 12 at 6-7, Tab 38 at 15-16.
¶14 As the administrative judge recognized, several agency witnesses described
how the measuring and recording of blood pressure was a routine task, for which
staff followed the agency’s standard operating procedures. ID at 31 -32. These
witnesses further testified that increases in blood pressure readings between
an initial consult with a nurse and the eventual exam with the appellant would not
be surprising under the circumstances because patients routinely had to wait a
long time for the appellant. ID at 32.
¶15 The appellant’s petition remains devoid of any substantive and persuasive
explanation for why he would have believed that he was disclosing the kind of
wrongdoing covered by section 2302(b)(8). PFR File, Tab 5 at 6-10.
We recognize and appreciate the appellant’s suggestion that one specific set of
blood pressure readings that he alluded to, from 118 to 200, is both too big to be
accurate and potentially life threatening. PFR File, Tab 5 at 6 -10; IAF, Tab 38
at 112-14. But, the facts surrounding those alleged readings or any other “major
errors” remain unexplained by the appellant. Although it is certainly within the
realm of possibility that nursing staff was making dangerous error s regarding
blood pressure readings, the record does not show that the appellant reasonably
believed that to be the case.
9
Disclosure 2 – lack of clinic supplies
¶16 The administrative judge next considered a set of disclosures about the
clinic’s supplies, particularly its supply of nebulizers and peak flow meters.
E.g., ID at 33-34; IAF, Tab 48 at 4. On review, the appellant only presents
arguments about the nebulizers. He reasserts that he made a protected disclosure
by twice reporting to the CBOC Manager that the clinic had an inadequate
inventory of nebulizers in May and October 2016. PFR File, Tab 5 at 11-15.
According to the appellant, this set of disclosures is protected because it revealed
a substantial and specific threat to public health and safety. Id.¶17 As alluded to in the initial decision, the clinic did have to adjust its on-hand
inventory of nebulizers, from two to five or more, to accommodate the appellant’s
treatment preferences. ID at 33; e.g., IAF, Tab 38 at 140. However, documentary
evidence and witness testimony indicated that the change was needed becau se the
appellant’s use of nebulizers was different than most; both before and after the
appellant’s time at the clinic, the clinic rarely dispensed nebulizers because all
the other clinicians preferred inhalers. ID at 33. Noting this, the administrative
judge concluded that the appellant failed to prove that he had a reasonable belief
of any substantial and specific threat regarding the supply of nebulizers because
the appellant could and did provide patients with an adequate alternative. Id.¶18 On review, the appellant acknowledges that he oftentimes provided
nebulizers as a “back-up” treatment for patients that typically use an inhaler.
PFR File, Tab 5 at 11. However, he argues that nebulizers and inhalers may not
be interchangeable for some patients with extenuating circumstances.
Id. at 12-15.
¶19 We have considered the appellant’s arguments but do not find them
persuasive. Although the appellant spoke with the CBOC Manager at least twice
about the clinic’s supply of nebulizers to provide for in -home use, e.g., IAF,
Tab 48 at 4, the appellant has described only one patient that seems to have been
10
impacted by the clinic not maintaining a larger supply on hand, PFR File, Tab 5
at 12; IAF, Tab 38 at 23-24. But, that individual already had an inhaler; he used
the clinic’s nebulizer during his encounter with the appellant ; and he received his
own nebulizer for home use within 10 days, via mail. IAF, Tab 38 at 23-25, 137.
The appellant has not presented any basis for us to conclude that this patient , or
any other, was in any specific and substantial danger from the clinic’s inventory
management.
¶20 We acknowledge the appellant’s argument that there may be times when
an inhaler and nebulizer are not interchangeable f or some patients. However,
the appellant has done little more than present conclusory assertions that are not
persuasive. The appellant has not directed us to anything in the record
documenting the prevalence of such patients or the surrounding circumstances.
Those details are particularly relevant since the record before us suggests that the
clinic always had a nebulizer to use in the office, it typically had nebulizers to
provide for in-home use, and other facilities or providers were “close by” and
“available to help,” if needed. E.g., id. at 23, 139-40. For that reason,
the appellant has not proven by preponderant evidence that he reasonably
believed his disclosures about the agency’s inventory of nebulizers revealed
a substantial and specific threat to public health and safety or any othe r category
of wrongdoing protected under section 2302(b)(8).
Disclosure 4 – inadequate or improper nursing support
¶21 In the initial decision, the administrative judge described and considered
several instances of the appellant raising questions or concerns a bout nursing
support, but she found none protected. ID at 36-39. On review, the appellant has
narrowed his arguments about this set of disclosures by referring only to his
11
communications about the availability of nurses from 12:00 -1:00 p.m. and after
4:30 p.m. 5 PFR File, Tab 5 at 36-37.
¶22 In one associated email, the appellant claimed that five nurses were at lunch
and the one that remained was with a patient, resulting in the appellant tending to
a homeless patient in the waiting room, looking unwell, possibly because his
diabetes was uncontrolled. IAF, Tab 39 at 42-43. A few days later, the appellant
reiterated this concern when he needed and received lunchtime nursing support
but was told not to expect lunchtime nursing services to always be available.
Id. at 44. In another email, the appellant reported that he was told nursing
services may not always be available after 4:30 p.m. either, but he found that
unacceptable because his patients were regularly scheduled to come in as late as
3:30 p.m. and the clinic accepted walk-ins until 4:00 p.m. Id. at 275.
¶23 While addressing these disclosures, the administrative judge conside red
testimony from the CBOC Manager, where she described how patients should not
ordinarily be in the clinic during the lunch hour or after 4:30 p.m. but a nurse
would be available if there was a critical need. ID at 37 -38. She found this
testimony credible. Id. The administrative judge further found that the record
was filled with evidence of the appellant being behind schedule and therefore
working outside the clinic’s normal operating hours, but the appellant failed to
prove that a reasonable person would believe that his complaints about the
clinic’s schedule not matching his own were protected. ID at 38.
¶24 In his petition, the appellant argues that his disclosures about nurse
scheduling were protected because they revealed a substantial and specific t hreat
5
For additional communications about nursing support that were addressed below, but
not reasserted on review, we note that the administrative judge relied, in part, on the
testimony of the appellant and other witnesses. ID at 38. Among other things, she
considered the appellant’s testimony to be self-serving. Id. Although it was error to
reject the appellant’s testimony as self-serving, the administrative judge’s credibility
determination was otherwise, and on the whole, proper. See Doe v. U.S. Postal Service,
95 M.S.P.R. 493, ¶ 10 (2004) (sustaining credibility findings under similar
circumstances).
12
to public health and safety. PFR File, Tab 5 at 36 -37. He further describes the
lunchtime encounter alluded to above, where a diabetic individual was in the
waiting room, not feeling well, and the only nurse in the office was occupied with
another patient. Id. at 36. The appellant characterizes this as an unsafe situation
because nurses were trained to use an “Accucheck” and treat hypoglycemia, if
needed, but he was not; the appellant could only sit with the patient and offer him
something to eat. Id.; IAF, Tab 39 at 43. The appellant also disputes the
administrative judge’s description of the clinic as “closed” during the lunch hour
because patients were oftentimes still being seen at that time or they were
arriving early for their 1:00 p.m. appointments. PFR File, Tab 5 at 37. Finally,
the appellant reiterates his belief that nurses should have been scheduled past
4:30 p.m. because the clinic was required to accept walk-in patients as late as
4:00 p.m. and the receptionist could occasionally accept a patient even later than
that. Id.¶25 We have considered these arguments but find no reason to disturb the
administrative judge’s conclusion. As made evident throughout the record, the
clinic was not an emergency room or hospital. It was a facility with designated
hours of operation where the appellant and others provided primary care services.
E.g., IAF, Tab 11 at 6-7, 185-87, Tab 39 at 555-57. For emergency services, the
clinic referred patients to the hospital. E.g., IAF, Tab 38 at 112, Tab 39 at 147.
¶26 The agency’s expectation was for the appellant to work from 8:00 a.m. to
4:30 p.m. each day, with a lunch hour in between. E.g., IAF, Tab 11 at 185-87.
The appellant oftentimes would work through lunch and stay after hours to try
and keep up with a workload that he found unmanageable. E.g., IAF, Tab 38
at 57-58, 110, Tab 39 at 196. But, we discern no basis for concluding that the
absence of consistent nursing coverage outside the clinic’s ordinary operating
hours was a substantial and specific threat to public health and safety.
¶27 We recognize and appreciate the appellant’s recounting of the one instance
in which a patient apparently arrived to the clinic’s waiting room during the lunch
13
hour looking unwell. But, by the appellant’s own description, a physician,
a nurse, and a receptionist were all occupying the clinic at that time, and another
nurse arrived within minutes. IAF, Tab 39 at 42-43. Although it is apparent that
the appellant was frustrated by this incident, in part because he did not know how
to best treat the patient, himself, we are not persuaded that he reasonably believed
that his disclosure was protected. The record before us suggests that the clinic
was ordinarily staffed during the lunch hour and staff would stay aft er their tour
ended, if needed, to accommodate any emergency. E.g., IAF, Tab 11 at 194, 198,
Tab 39 at 44, 72. It also suggests that the appellant, himself, had sought help
from the nearby hospital for instances in which the clinic could not care for a
patient with emergency needs. IAF, Tab 38 at 112. For these reasons, we
determine that the appellant’s disclosures about nurses’ schedules at the clinic
reflect a policy disagreement, but do not also reveal any type of disclosure
covered under the whistleblower statute. See generally Hessami v. Merit Systems
Protection Board, 979 F.3d 1362, 1371 (Fed. Cir. 2020) (recognizing that “policy
decisions and disclosable misconduct under the [whistleblower statutes] are not
mutually exclusive”).
Disclosure 6 – improper handling of a cancer patient’s complaint
¶28 The next set of disclosures the appellant reasserts on review concerned a
staff encounter with one of the appellant’s patients—an encounter the appellant
did not witness. ID at 15-16, 39-41; see, e.g., IAF, Tab 39 at 145-70, Tab 48
at 4-5. According to associated medical records, this patient had experienced
pain and other symptoms for over a year, but the appellant had attributed this to a
relatively minor ailment. IAF, Tab 60 at 13. However, when the patient’s
symptoms continued to worsen and he sought care elsewhere, clinicians
uncovered extensive cancer. Id. The patient brought this news to the clinic,
asking to speak with the appellant. IAF, Tab 61 at 8. Notes in the patient’s chart
describe the appellant as “not available” during this encounter and describe the
14
patient as “understandably upset and feel[ing] the care received [at the clini c] was
not aggressive enough to identify his ailment sooner giving him a greater chance
of survival.” Id.¶29 As recounted in the initial decision, multiple staff members provided
testimony, further describing this patient encounter and the events that follow ed.
ID at 15-16, 39-41. They indicated that the patient had come to confront the
appellant, not seek medical care from the appellant. ID at 15. When staff
indicated that the appellant was not available, the patient left the office abruptly,
informing them that he no longer intended to receive his care there and would
instead go to a different agency facility. Id. Staff took action to find out more
about the patient’s cancer diagnosis and to elevate the issue, in part , because they
interpreted the encounter as both a malpractice complaint and potential threat of
violence. Id. However, they did not immediately inform the appellant about the
diagnosis or encounter. ID at 15-16.
¶30 When the appellant did learn about the patient encounter, several days la ter,
he asked numerous individuals about what happened and then engaged in various
communications over many weeks about his conclusions. E.g., IAF, Tab 39
at 145-70, 219-20. Among other things, these communications alleged that staff
had lied about the appellant’s availability, they had deliberately kept him in the
dark, they had tarnished his reputation, and they had prevented the patient from
receiving prompt follow-up care. Id.¶31 The administrative judge found that the appellant failed to prove that these
communications contained any disclosure protected under section 2302(b)(8).
ID at 40-41. Instead, she found that they contained conclusory and unreasona ble
assertions of maliciousness on the part of agency staff, both in terms of their
reporting that the appellant was unavailable at the time of the patient encounter
and in terms of their care for the patient. Id.¶32 On review, the appellant has characterized his communications about this
patient as containing four distinct and protected disclosures. First, the appellant
15
argues that he disclosed a substantial and specific danger to public health and
safety by revealing that staff failed to address a patien t’s urgent need for medical
care. PFR File, Tab 5 at 21-23. Second, the appellant argues that he disclosed a
substantial and specific danger to public health and safety, a violation of agency
rules, and an abuse of authority by revealing that staff delib erately withheld the
patient’s condition from him for several days. Id. at 23-25. Third, the appellant
argues that he disclosed a violation of agency rules for handling urgent test
results. Id. at 25-26. Fourth, the appellant argues that he disclosed a substantial
and specific danger to public health and safety, as well as a violation of agency
rules, by revealing that upper management failed to adequately investigate the
matter. Id. at 26-27.
¶33 We have considered each of these arguments but do not find them
persuasive. By all indications, the patient in question understood the gravity of
his situation, and he visited the clinic to end his treating relationship there, not to
seek out advice or care from the appellant. Clinicians elsewhere had just
diagnosed him with cancer in his pancreas, lungs, liver, lymph nodes, and
bladder. IAF, Tab 60 at 13, Tab 61 at 9. When he came to the clinic, he did so
upset about his “chance of survival.” IAF, Tab 61 at 8. Witnesses described the
patient visit as one in which he was “firing” the clinic and expressing his intent to
go to elsewhere for further care. E.g., ID at 62; HR2 (testimony of Medical
Director at 28:00). A subsequent treatment note from a different agency medical
center shows that he did just that; the patient sought care elsewhere. IAF, Tab 60
at 13. While doing so, the patient seemed to fault the appellant for dismissing his
symptoms over the prior year. Id. The patient further described himself as
having “not done anything” in the week or so since his diagnosis, “due to the
shock,” as well as “his anger that [it] was not diagnosed sooner.” Id.¶34 Plus, by all indications, staff at the CBOC clinic had followed up regarding
this patient, despite the patient indicating that he wanted nothing more to do with
the clinic, albeit through channels that did not include the appellant. As the
16
appellant has himself acknowledged, staff elevated the issue to multiple people,
including the clinic’s Medical Director, within the 2 days that followed the
patient’s unexpected visit to the clinic. E.g., IAF, Tab 39 at 157; PFR File, Tab 5
at 16. Staff also attempted to contact the patient by at least the fourth day after
that visit, as documented in the patient’s chart. IAF, Tab 61 at 8. In addition,
although staff did not immediately seek out the appellant to notify him of the
encounter or diagnosis in person, multiple witnesses testified that the appellant
would have received a prompt alert with the patient’s test results. E.g., ID at 16;
HR2 (testimony of Medical Director).
¶35 It is undisputed that the appellant conducted his own informal investigation
about what happened before making his disclosures. E.g., ID at 16; IAF, Tab 39
at 138, 144, 152. For that reason, he would have been aware of the circumstances
described above. In what appears to be his first communication to management
about the issue, the appellant explicitly recognized that the patient had already
visited the agency’s Palo Alto facility for follow up regarding his new cancer
diagnosis. IAF, Tab 39 at 151.
¶36 We appreciate that the appellant would still have reason for concern about
the patient’s health, he may have disagreed with the patient’s decision to seek
care elsewhere, and he may have wanted an opportunity to speak with the patient
sooner. But, we do not find that the appellant reasonably believed that his
communications about this incident—communications that primarily accuse staff
of lying about his availability and purposefully keeping him out of the loop, while
accusing management of failing to adequately deal with the same—revealed a
substantial and specific danger to public health and safety. We are also
unpersuaded that the appellant reasonably believed he disclosed an abuse of
authority or violation of any established rule.
¶37 In large part, the appellant’s arguments on review seem to rely on the
appellant’s suspicions about the staff and colleagues that surrounded him at the
clinic. For example, the appellant asserts that he was in the clinic, all day, on the
17
day of this patient encounter, as proof that staff maliciously lied about his
availability. PFR File, Tab 5 at 16. But, it is apparent that the appellant’s
presence in the clinic does not equate to him being unoccupied and available to
attend to a brief and unscheduled meeting with a patient. The appellant also
suggests that, while there was testimony indicating that the patient was
“outraged” and “fired” the clinic during the encounter, it may have been a
manufactured excuse to cover up the agency’s response. Id. at 18-20. But, the
appellant has identified no substantive evidence or testimony t o support his
suspicion, and, as previously mentioned, there is ample evidence to the contrary,
much of which he was aware of at the time of his disclosures. E.g., IAF, Tab 60
at 13, Tab 61 at 8.
¶38 Once again, it was the appellant’s burden of proving that he reasonably
believed that he was disclosing the type of wrongdoing described in the
whistleblower statute. In this instance, he has not done so.
Disclosure 9 – improper workload
¶39 The final set of disclosures the administrative judge found not protected
under section 2302(b)(8) were ones about the appellant’s work backlog, work
schedule, or workload during the period he worked for the clinic, between
March 2016 and January 2018. ID at 43-47. On review, the appellant describes
this set of disclosures as one about “work overload,” and he once again argues
that it revealed a substantial and specific danger to public health and safety.
PFR File, Tab 5 at 27-35.
¶40 It is undisputed that the appellant regularly found himself behind and
working longer hours than his normal work schedule, despite the agency
periodically adjusting his schedule or providing other assistance to give the
appellant an opportunity to catch up. For example, by May 2016, just 2 months
into his time working at the clinic, the appellant had developed a backlog of
nearly 800 “view alerts” in the agency’s system for communicating matters such
18
as lab results, prescription refill requests, notes to be signed, and schedule
changes. 6 IAF, Tab 38 at 30, Tab 39 at 50; ID at 4. Consequently, the Director
of Primary Care blocked off some of the appellant’s time for clearing that
backlog, while also offering to personally sit with the appellant to help him do so.
IAF, Tab 38 at 31, 35.
¶41 Over the next couple of months, the Director of Primary Care periodically
monitored and assisted the appellant with his view alerts, sometimes clearing
them out herself and sometimes granting him days of administrative time to catch
up in a separate location, where he would not be distracted by patients. E.g.,
id. at 41, 48, 57, 83, 86, 104-05. The appellant saw zero to three patients per day,
at times, to allow for this extensive administrative time, and his backlog shrank.
Id. However, by July 2016, the Director of Primary Care warned the appellant
that his failure to timely handle matters, such as view alerts, jeopardized patients,
so she expected him to both catch up and then stay current on his workload,
which should include a schedule of 10 patient appointments or walk-ins per day.
Id. at 65, 89.
¶42 Despite the accommodations, warnings, and some progress, the appellant’s
backlog of view alerts began to climb again, reaching 1,500 by September 2016.
Id. at 110-11, 124. The appellant indicated that he was seeing three to five
patients a day around that time, but he considered that overloaded and suggested
that it could result in harm to a patient. Id. at 124-25.
6
It is apparent that the amount of time it took to review or complete a “view alert”
varied, depending on the nature of the alert. We found one instance of the appellant
estimating that it took him 2 minutes to clear each. IAF, Tab 38 at 39. Elsewhere,
he described clearing as many as three per minute. IAF, Tab 39 at 49. We also found
another instance of the Director of Primary Care reviewing his backlog of alerts and
finding that many were “already done” but remained in his backlog because the
appellant simply failed to clear them from his queue. IAF, Tab 38 at 31. To provide
further context, the record contains extensive documentation showing how the
appellant’s backlog of unprocessed view alerts oftentimes grew by several hundred per
week. IAF, Tab 11 at 17-61.
19
¶43 In December 2016, the Director of Primary Care met with the ap pellant to
review the agency’s expectations. IAF, Tab 39 at 72. Among other things, that
included attending to 10 patient slots per day; notifying patients of test results
within 7 days if they required action or 14 days if they required no action; and
completing notes with 48 hours. Id. The Director of Primary Care warned that
failure to meet these expectations may result in discipline. Id.¶44 By March 2017, the appellant had a backlog of patient notification letters to
complete, as well as 2,000 view alerts to dispose of, and he insisted that the
agency’s expectations of him were unrealistic, despite having some days with no
scheduled patients. Id. at 48, 57, 61. The Director of Primary Care responded
with dismay that the appellant had once again gotten behind, despite repeated
assistance and repeated explanations of the agency’s expectations.
Id. at 58, 61, 64, 68, 71. She denied the appellant’s request for additional
administrative time without seeing patients, as well as his request to see no new
patients; she set concrete deadlines for prioritizing and catching up on his
backlog; and she warned him that discipline could follow if he failed to do so. Id.¶45 Nonetheless, in May 2017, the agency provided the appellant with dedicated
administrative time to address his backlog of view alerts that had grown to 2 ,200.
Id. at 109-14, 118, 120, 122, 124. Then, in June 2017, the agency issued the
appellant a counseling letter, describing how he had repeatedly failed to complete
test result notifications. IAF, Tab 11 at 137. Two months later, in August 2017,
the Director of Primary Care and others once again communicated back and forth
with the appellant about getting caught up and warned that his backlog of alerts
was a patient safety issue. IAF, Tab 39 at 185-91. This led to the agency sending
the appellant a letter, informing the appellant that his backlog of alerts would be
handled by other providers and he was expected to stay current on new alerts. Id.
at 198-99, 203. This letter also implemented a more structured and set schedule
of 10 patient slots each day, with designated administrative time built in after
20
each. Id. at 198-99. Of note, the agency described this schedule as consistent
with national standards and guidelines. Id. at 198, 201.
¶46 In November 2017, the appellant asked for some additional days with no
scheduled appointments so he could catch up on yet another backlog of
administrative tasks, but the Chief of Primary Care rejected the request,
indicating that he was expected to keep up to date without the cancellation of
appointments. IAF, Tab 11 at 181. Days later, the agency began the process of
admonishing the appellant for his delinquent view alerts. Id. at 173-80. The next
month, December 2017, he had a backlog of 1,500 view alerts. IAF, Tab 39
at 346. At that time, the agency reduced his schedule of patients and had other
clinicians intervene to dispose of his view alerts. Id. at 337, 355-57. At the end
of the month, when the appellant decided to allow his medical privileges to
expire, the agency gave him weeks of administrative time to compl ete outstanding
patient notes and view alerts before his extended leave that preceded his
resignation. Id. at 359-60.
¶47 To the extent that the appellant engaged in communications about his work
backlog, work schedule, and workload, the administrative judge found that they
were not protected disclosures. Among other things, she determined that many
were not protected disclosures because they merely asked questions, sought
assistance, or requested changes to his schedule. ID at 44 (referencing, e.g.,
IAF, Tab 38 at 28, 33-35, 56-57, Tab 39 at 47, 75, 226, 306). She also found that
many others concerned staffing, retention, the agency’s standards for time spent
with patients, or the “dysfunction” at the clinic, but they were too vague and
conclusory to be protected. ID at 44-45 (referencing, e.g., IAF, Tab 11 at 266,
Tab 38 at 29, 52, Tab 39 at 28-32, 75-79, 87). Finally, the administrative judge
recognized that, although agency officials were aware of the appellant’s backlog
and agreed that his backlog of work constituted a patient safety issue, the
appellant’s communications about the same were not to reveal wrongdoing that
21
implicated patient safety—they were to complain that he was unable or unwilling
to meet the agency’s expectations. ID at 45-47.
¶48 On review, the appellant has alluded to a significant number of documents
in support of his assertion that his communications about being overloaded with
work, particularly when it came to his view alerts, were protected because they
concerned patient safety. PFR File, Tab 5 at 27-35 (citing IAF, Tab 11
at 4, 7-131, 137, 181, Tab 38 at 28, 30, 33-34, 39-40, 111, 124-25, 150-52,
Tab 39 at 28-29, 48-51, 60, 130, 185-99, 336-63). Although we have reviewed
each, we do not find that he met his burden of proving that any contained
additional disclosures of the types of government wrongdoing covered under
section 2302(b)(8).
¶49 Much of the evidence cited by the appellant consists of the agency’s
communications—rather than his own—about the appellant’s inability to keep up
with his workload and remedial actions the agency took to deal with the same.
E.g., IAF, Tab 11 at 4-131, 137, 181, Tab 38 at 28, 30, Tab 39 at 198-99, 338-45,
349-54, 359-60. Some other evidence consists of agency policy statements about
managing view alerts. IAF, Tab 38 at 150-52, Tab 39 at 50-51. More are notes
the appellant wrote to himself, not someone else, describing his difficulties with
the agency’s expectations. IAF, Tab 39 at 48-49.
¶50 Other evidence the appellant cited consists of the communications in which
the appellant explained why he had difficulties with the agency’s expectations,
while insisting that he needed more time than the agency allot ted. E.g.,
IAF, Tab 38 at 33-34, 39-40, 124-25, Tab 39 at 28-29. To illustrate, in one email,
from 6 months into his time with the clinic, the appellant accused the Director of
Primary Care of being “out of touch with reality” and “pressuring [him] to do
more than [he] can responsibly do,” while surmising that this was a “tale of
substandard care” necessitated by “some bean counter.” IAF, Tab 38 at 125.
In another, the appellant criticized staffing levels and indicated that he had to
work extensive overtime. IAF, Tab 39 at 28-29. Another email from the
22
appellant indicates that, despite him previously informing the Director of Primary
Care that he understood and could meet the agency’s expectations, he had
determined that those expectations were unrealistic. Id. at 60.
¶51 Many others consist of the appellant’s communication with agency officials
about wrapping up his backlog and practice before separating from the clinic. For
example, some emails complain the agency was refusing his proposal to reduce
the number of patients he saw each day and was instead requiring a “dangerous
schedule,” which would cause undue stress and overtime. Id. at 130-31, 355.
Several others show the appellant and managers trying to coordinate the reduction
or elimination of patient appointments for the appellant, as well as the reduction
or elimination of his backlog of view alerts and other administrative tasks, before
handing patients over to other providers. Id. at 185-97, 336-37, 346, 348, 356-58,
361-63. At times, those communications in his final days working for the clinic
contain broad allegations of improprieties, such as the appellant’s allegation that
management had “a vested personal interest in the dysfunctional status quo.” Id.
at 347.
¶52 The appellant’s arguments on review about this set of disclosures do
provide one instance of him describing how one, particular patient was reportedly
harmed by inadequate follow up from lab reports. PFR File, Tab 5 at 30 (citing
IAF, Tab 38 at 111). However, that instance involved a prior physician, not the
appellant or his own workload, and the administrative judge found that discrete
matter to be a protected disclosure about a prior lapse in care. ID at 36 (citing
IAF, Tab 38 at 111). That disclosure about a particular instance involving a
different clinician is markedly different from the appellant’s communications
about his own backlog of view alerts or other aspects of his workload, which
constantly ebbed and flowed as the agency repeatedly warned the appellant about
keeping up and provided assistance with the same, either by giving the appellant
additional administrative time or by having another provider intervene.
23
¶53 In sum, we have considered all the documents the appellant cited on review
regarding this set of disclosures about his workload, as well as his arguments
about the same. The appellant makes a persuasive case about how view alerts or
other administrative tasks that are altogether left to languish, unattended, could
eventually result in harm to a patient under the agency’s care. E.g., PFR File,
Tab 5 at 27-29. However, the appellant has failed to prove that he reasonably
believed that to be the situation he was disclosing. This is particularly so because
the appellant knew that numerous agency officials consistently monitored his
workload and intervened to prioritize, reduce, or altogether eliminate both his
backlog of administrative tasks and his schedule of patients when necessary.
Simply put, the communications identified on review regarding the appellant’s
workload demonstrate that he was consistently dissatisfied with the agency’s
expectations, and he oftentimes wished that the agency would intervene i n
different ways or at different times as he got behind in his workload, but they do
not show that he reasonably believed that he was disclosing the types of
wrongdoing covered under section 2302(b)(8) of the whistleblower statute.
The appellant failed to prove that Personnel Actions 2 and 4 were cognizable
personnel actions under the whistleblower statute.
¶54 To recall, the appellant alleged that he was subject to four retaliatory
personnel actions: (1) a November 2017 admonishment, (2) a hostile work
environment, (3) a December 2017 letter that changed work conditions, and (4) an
involuntary resignation. Supra, ¶ 3. The administrative judge found that the
November 2017 admonishment (Personnel Action 1) was a cognizable personnel
action, ID at 48-49, as was the agency’s December 2017 letter changing his
working conditions (Personnel Action 3), ID at 62-63. However, the
administrative judge reached the opposite conclusion for the alleged hostile work
environment (Personnel Action 2), ID at 49-62, and involuntary resignation
(Personnel Action 4), ID at 63-66.
24
¶55 On review, the appellant asserts that if we disagree with the administrative
judge regarding the existence of additional protected disclosures, we should
revisit the administrative judge’s findings with respect to his allegations of a
hostile work environment and involuntary resignation. PFR File, Tab 5 at 5.
He goes on to present cursory arguments about both. Id. at 46.
¶56 As detailed above, we are not persuaded by the appellant’s arguments about
additional protected disclosures. Nevertheless, we have reviewed the
administrative judge’s findings about the alleged hostile work environment and
involuntary resignation. ID at 49-62, 63-66.
Personnel Action 2 – a hostile work environment
¶57 The whistleblower statute’s definition of a personnel action includes, inter
alia, a “significant change in duties, responsibilities, or working conditions ,” and
the Board has recognized that this phrase must be interpreted broadly. 5 U.S.C.
§ 2302(a)(2)(A)(xii); Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 23
(2015). During the period that followed the administrative judge’s initial
decision, we issued a decision that further clarified the matter, particularly as it
relates to allegations of a hostile work environment. See Skarada v. Department
of Veterans Affairs, 2022 M.S.P.B. 17.
¶58 In Skarada, we explained that, although the term “hostile work
environment” has a particular meaning in some other contexts, allegations of a
hostile work environment may only establish a personnel action under the
whistleblower statute if they meet the statutory criteria, i.e. , a significant change
in duties, responsibilities, or working conditions. Id., ¶ 16. And, while the
“significant change” personnel action should be interpreted broadly to include
harassment and discrimination that could have a chilling effect on whistleblowing
or otherwise undermine the merit system, only agency actions that, individually
or collectively, have practical and significant effects on the overall nature and
25
quality of an employee’s working conditions, duties, or responsibilities will be
found to constitute a personnel action covered by section 2302(a)(2)(A)(xii). Id.¶59 Although the administrative judge issued the initial decision before Skarada
and, therefore, lacked the explanation contained within, we find no basis for
disturbing her findings of fact about the alleged hostile work environment or her
conclusion that the appellant failed to prove that he was subjected to a n additional
personnel action cognizable under the whistleblower statute. In the initial
decision, the administrative judge provided a lengthy recitation of the appellant’s
allegations pertaining to a hostile work environment along with the associated
evidence. ID at 28-29, 49-60. For the most part, these allegations concerned
conversations and disagreements he had with colleagues. Id. The administrative
judge determined that the appellant subjectively felt hostility and much of the
clinic staff did not like working with the appellant, but this was simply the result
of the appellant’s unusual work methods and demands, as well as his own
objectionable behavior—the appellant did not prove that the agency subjected
him to a significant change in duties, responsibilities, or working conditions.
ID at 60-62.
¶60 The appellant’s petition for review contains no more than a cursory
argument to the contrary. PFR File, Tab 5 at 46. He suggests that the CBOC
clinic was no ordinary workplace, where occasional disagreements or mistakes
are expected, and the 3-day hearing recording demonstrates why that is so. Id.The appellant also poses a question, wondering why one witness was not
discussed within the administrative judge’s analysis, though the appellant fails to
provide further explanation of the associated testimony. Id. Without more
though, we will not pour over the voluminous, documentary evidence or hearing
recordings in search of a reason to disturb the administrative judge’s extensive
and well-reasoned findings of fact on this point. See Marques v. Department of
Health & Human Services, 22 M.S.P.R. 129, 132 (1984) (recognizing that
an administrative judge’s failure to mention all of the evidence of record does not
26
mean that she did not consider it in reaching her decision ), aff’d, 776 F.2d 1062(Fed. Cir. 1985); 5 C.F.R. § 1201.115(a) (providing that a petitioner who alleges
that the judge made erroneous findings of material fact must explain why the
challenged factual determination is incorrect and identify specific evidence in the
record that demonstrates the error).
Personnel Action 4 – an involuntary resignation
¶61 Regarding the appellant’s allegation that he was subjected to a retaliatory
involuntary resignation, the administrative judge determined that the appellant
did not prove the requisite involuntariness of his resignation. ID at 64-66;
see generally Jenkins v. Merit Systems Protection Board, 911 F.3d 1370, 1375-77
(Fed. Cir. 2019) (discussing the presumption that a resignation or retirement is
voluntary and an appellant’s burden of proving otherwise). Among other things,
she noted that the appellant took extensive leave for nearly 2 years before
eventually resigning from the agency. ID at 22-24, 65. She further noted that,
during that time, the appellant had virtually no contact with the CBOC clinic and
most of the officials he had routinely clashed with retired or otherwise left the
agency. Id. For these reasons and others, the administrative judge concluded that
a reasonable person in the appellant’s position would not have felt compelled to
resign when the appellant did so. ID at 65-66.
¶62 Again, the appellant presents little more than a cursory argument about his
alleged involuntary resignation. PFR File, Tab 5 at 46. Without any substantive
explanation, the appellant asserts that hearing testimony showed that his working
conditions were intolerable. Id. That assertion provides no basis for disturbing
the administrative judge’s findings to the contrary.
The agency proved that it would have taken Personnel Actions 1 and 3 in the
absence of the appellant’s protected disclosures.
¶63 Again, for those matters where the administrative judge found that the
appellant met his burden of presenting a prima facie case of whistleblower
27
reprisal, she shifted the burden to the agency. Upon doing so, the administrative
judge found that the agency proved by clear and convincing evidence that it
would have taken the same personnel actions (Personnel Actions 1 and 3) in the
absence of the appellant’s protected disclosures (Disclosures 3, 5, 7, and 8).
¶64 In determining whether the agency has met its burden of p roving that it
would have taken the same personnel action in the absence of an appellant’s
protected disclosures or activities, the Board will consider the following factors:
(1) the strength of the agency’s evidence in support of its action; (2) the exis tence
and strength of any motive to retaliate on the part of the agency officials 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).
The Board does not view these factors as discrete elements, each of which the
agency must prove by clear and convincing evidence, but rather, the Board will
weigh the factors together to determine whether the evidence is clear and
convincing as a whole. Phillips v. Department of Transportation,
113 M.S.P.R. 73, ¶ 11 (2010). In addition, the Board is mindful that “[e]vidence
only clearly and convincingly supports a conclusion when it does so in the
aggregate considering all the pertinent evidence in the record, and despite the
evidence that fairly detracts from that conclusion.” Whitmore v. Department of
Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).
¶65 On review, the appellant does not present any particularized arguments
about Personnel Action 1, but he does regarding Personnel Action 3. PFR File,
Tab 5 at 38-45. Our analysis of the agency’s burden will be similarly focused.
¶66 Personnel Action 3 consisted of the changed working conditions described
in an agency letter, dated December 26, 2017, from the Director of Primary Care
to the appellant. IAF, Tab 39 at 359-60. Among other things, it described how
the appellant had decided to let his privileges with the agency’s healthcare system
expire, which prevented him from caring for patients and could lead to his
28
removal if he did not also resign. Id. at 359. The letter went on to indicate that
the agency would provide the appellant with several weeks to catch up on view
alerts and other administrative tasks, but he would do so in a different wing of the
clinic, away from the primary care section where he typically worked. Id. The
agency also gave the appellant specific instructions about how to communicate
with nursing staff for that period. Id.
¶67 Regarding the Carr factors described above, the administrative judge first
found that the agency had strong evidence in support of its actions. ID at 72-74.
Inter alia, she explained that the agency had ample reason to believe that the
appellant was planning to resign, he had administrative tasks to wrap up before
doing so, and he had a lengthy history of being distracted from those
administrative tasks when attending to his regular duties in the clinic. Id.
Second, the administrative judge found that none of the relevan t officials had a
strong motive to retaliate against the appellant. ID at 74 -75. Third, she found
that, although there were some individuals who were not whistleblowers but were
somewhat similar to the appellant in terms of falling behind on administrati ve
tasks, the facts of each were distinguishable and did not support a finding of
retaliation in this appeal. ID at 75-76.
¶68 In his petition for review, the appellant argues that the agency would not
have implemented Personnel Action 3 in the absence of his emails to agency
officials in the preceding days about his backlog of view alerts or other
administrative tasks once again increasing. PFR File, Tab 5 at 38 -45. But, in
doing so, the appellant seems to exclusively rely on his communications in
Disclosure 9, which were not protected. See supra, ¶¶ 39-53. Such arguments
are unavailing because the agency’s burden was only to prove that it would have
taken the same personnel action in the absence of his protected disclosures.
Supra, ¶ 6. In other words, even if the agency did implement Personnel Action 3
because of the communications it had with the appellant about his backlog of
29
administrative tasks in the preceding days, that does not warrant corrective action
under the whistleblower statute.
¶69 The appellant also asserts that Personnel Action 3 constituted discipline, for
which he should have been entitled to due process, and it violated his freedom of
speech. PFR File, Tab 5 at 39, 44-45. Alternatively, he seems to argue that,
although it may have been appropriate to eliminate his patient care duties for a
couple weeks, or reduce them for longer, eliminating them for a month was
excessive. Id. at 43-44. These brief arguments do not, however, persuade us that
the administrative judge erred regarding the limited issues before us in this
appeal.
¶70 To conclude, the appellant presented extensive arguments and allegations of
reprisal during the proceedings below. The administrative judge found that
he presented a prima facie case of reprisal regarding a limite d subset of the
alleged disclosures and personnel actions, but he was not entitled to corrective
action. On review, the appellant has further narrowed his arguments and
allegations. We considered each but find no reason find that he is entitled to
corrective action.
NOTICE OF APPEAL RIGHTS 7
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
7
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 mat ter.
30
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).
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 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
31
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
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
32
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
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. 8 The court of appeals must receive your petition for
8
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.
33
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 particul ar
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
34
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.