Jay Ginsberg v. Department of Veterans Affairs ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAY GINSBERG, DOCKET NUMBER
Appellant, AT-1221-21-0116-W-1
v.
DEPARTMENT OF VETERANS DATE: April 15, 2022
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Shannon Polvi, Esquire, Columbia, South Carolina, for the appellant.
Deetric M. Hicks, Esquire, Decatur, Georgia, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
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 his individual right of action (IRA)
appeal. On petition for review, the appellant argues that the administrative judge
erred in her analysis of the Carr factors, as set forth in Carr v. Social Security
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; 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. Except as
expressly MODIFIED to supplement the administrative judge’s findings regarding
the second and third Carr factors, we AFFIRM the initial decision.
¶2 We agree with the administrative judge that the appellant made a prima
facie case of whistleblower reprisal, and that the agency demonstrated by clear
and convincing evidence that it would have taken the same actions against the
appellant even in the absence of his protected disclosure an d protected activity.
Initial Appeal File (IAF), Tab 25, Initial Decision (ID) at 6-13. In determining
whether the agency met its burden, the administrative judge properly considered
all relevant factors, including the following: 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. ID at 10-13; Carr,
185 F.3d at 1323.
¶3 Regarding the first factor, the administrative judge reasoned that all of the
personnel actions were the result of the appellant’s removal from his
3
psychologist/neuropsychologist position, the loss of his credentials, and agency
policy regarding research funding. ID at 11-12. As such, she found that the
agency’s evidence in support of the personnel actions was strong. ID at 12. We
discern no error with this finding.
¶4 Regarding the second Carr factor, the administrative judge found that the
Director was largely responsible for the personnel actions but that he was simply
following agency policy. ID at 12. Thus, she found that there was “virtually no
evidence of motivation to retaliate against the appellant.” Id. However, the U.S.
Court of Appeals for the Federal Circuit has articulated a broader and more
flexible approach to this factor. See Miller v. Department of Justice, 842 F.3d
1252, 1261-62 (Fed. Cir. 2016) (explaining that the second Carr factor should be
evaluated “more generally” because the factor is directed at agency officia ls
involved in making the decision, not just at the employee’s direct supervisor);
Whitmore v. Department of Labor, 680 F.3d 1353, 1370 (Fed. Cir. 2012) (finding
that those responsible for the agency’s performance overall may be motivated to
retaliate even if they were not directly implicated by the disclosures or did not
personally know the whistleblower because the criticism could reflect on the m in
their capacities as managers and employees).
¶5 Based on this language, we acknowledge that the administrative judge’s
finding as stated above may have been an overstatement of the record. ID at 12.
Here, two of the agency officials responsible for or directly involved in several of
the personnel actions at issue—the Director and the Associate Chief of Staff—are
managers and were aware of the appellant’s protected disclosure and/or protected
activity. 2 Thus, consistent with Miller, Whitmore, and similar cases, a motive to
retaliate may have existed. Nonetheless, we find no other motive to retaliate
2
Other agency employees, such as an Office of Research & Development employee and
the Deputy Director also appear to have been involved in the personnel actions, but
there is no evidence that they were aware of the appellant’s protected disclosure or
protected activity. IAF, Tab 24 at 64, 70-72.
4
absent the basic factors listed above, and thus, any motive to retaliate, if it existed
here, was minimal.
¶6 Regarding the third Carr factor, the administrative judge stated that the
agency “failed to present evidence of nonwhistleblower comparator employees.”
ID at 12. In Miller, the court observed that the absence of evidence related to this
factor could be found to cut slightly against the agency and co uld cause it to fail
to prove its case overall. 842 F.3d at 1262; Whitmore, 680 F.3d at 1373. The
agency, however, did assert that there simply were no similarly situated doctors
who lost their clinical privileges and their Veterans Affairs (VA) appointments.
IAF, Tab 24 at 12-15. The appellant does not appear to dispute this assertion.
PFR File, Tab 1. Thus, the agency would not have been able to produce any
evidence that it takes similar actions against employees who are not
whistleblowers but who are otherwise similarly situated. Therefore, this factor is
neutral.
¶7 Ultimately, we agree with the administrative judge that the suspension of
the appellant’s credentials, his loss of his 5/8 VA appointment, and the agency’s
application of the Office of Research & Development Guide 1200.15 provide
strong evidence to support the agency’s actions. ID at 11-13. Further, although
certain agency officials did have some motive to retaliate, the appellant’s
protected disclosures and protected activity did not lead to any negative
consequences for the agency and did not implicate any of the officials involved in
the personnel actions. Further, the record establishes that those officials acted on
the basis of the policy and not retaliatory animus. These factors outweigh any
dearth of evidence related to the third Carr factor. Therefore, we agree with the
administrative judge’s conclusion that the agency proved by clear and convincing
evidence that it would have taken the same actio ns against the appellant even in
the absence of his protected disclosure and protected activity. Id.5
NOTICE OF APPEAL RIGHTS 3
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 s eek 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 y our
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).
3
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 indic ated in the notice, the
Board cannot advise which option is most appropriate in any matter .
6
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
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
7
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
8
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 descri bed 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. 4 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
4
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.
9
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.