Thanh T Van v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THANH T. VAN, DOCKET NUMBER
Appellant, DA-1221-18-0264-W-1
v.
DEPARTMENT OF VETERANS DATE: July 2, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
David Evans , Esquire, San Antonio, Texas, for the appellant.
Patrick A. Keen , Shreveport, Louisiana, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner did not participate in the adjudication of this appeal.
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied corrective action in her 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. Except as expressly MODIFIED to
supplement the administrative judge’s analysis that the agency established by
clear and convincing evidence that it would have taken the same personnel
actions absent the appellant’s protected activities, we AFFIRM the initial
decision.
BACKGROUND
¶2 In November 2009, the appellant was appointed as a staff Physician in the
Imaging Service of the agency’s Audie L. Murphy Memorial Veterans’ Hospital
(Audie Murphy VA) in San Antonio, Texas. 2 Initial Appeal File (IAF), Tab 11
at 18; Hearing Compact Disc, October 17, 2018 (HCD 2), Track 2 at 1:15
(testimony of the appellant). The hospital’s Imaging Service is divided into four
sections – Diagnostic Radiology, Interventional Radiology, Nuclear Medicine,
and Radiation Oncology. Id. at 120. Each section is headed by a Section Chief,
and the Imaging Service as a whole is headed by a Service Chief. HCD 2,
Track 1 at 1:17:55 (testimony of Dr. L).
2
The Imaging Service used to be called the “Radiology Service.” Hearing Compact
Disc, October 17, 2018, Track 1 at 2:48:50 (testimony of Dr. L). These terms are used
interchangeably throughout the record.
3
¶3 In the fall of 2014, the agency appointed Dr. A as the new Chief of the
Imaging Service. IAF, Tab 1 at 184. Shortly thereafter, Dr. A personally
selected a physician to work in the Imaging Service on a contract basis, and in
January 2015, the appellant raised concerns about the competency of this
physician based on multiple errors that he had made reading and interpreting
images. Id. at 184-85; Hearing Compact Disc, October 16, 2018 (HCD 1),
Track 1 at 9:10 (testimony of the Radiology Administrator), Track 4 at 6:00
(testimony of Dr. D). These concerns precipitated an inquiry and a formal peer
review that resulted in a delay in the subject physician securing a civil service
appointment, although he was ultimately returned to the Imaging Service with
limited privileges. IAF, Tab 1 at 185; HCD 2, Track 1 at 2:35:30 (testimony of
Dr. L).
¶4 Shortly after Dr. A became aware of the appellant’s disclosures, she and
some of the upper management at the Audie Murphy VA began subjecting her to
a number of personnel actions that the appellant believed to be retaliatory. IAF,
Tab 1 at 185-88. The appellant’s working conditions eventually led her to resign
her position effective June 30, 2015, and pursue a mammography fellowship at
the neighboring university hospital. IAF, Tab 11 at 16, 18; HCD 2, Track 2
at 17:10 (testimony of the appellant). Around the same time, an unrelated
investigation led to Dr. A’s reassignment and removal. HCD 2, Track 1
at 2:59:30 (testimony of Dr. L). Dr. L, who was Deputy Chief of Medical Staff at
the time, stepped in to fill the vacant Service Chief position. HCD 2, Track 1
at 2:47:50 (testimony of Dr. L). In light of this personnel shift, which had
removed Dr. A from her chain of command, the appellant immediately regretted
her decision to resign, but she felt that she had to go through with it because she
had already made a commitment to the university. IAF, Tab 11 at 16; HCD 2,
Track 2 at 19:10 (testimony of the appellant).
¶5 Prior to her resignation, on April 28, 2015, the appellant filed a
whistleblower complaint with the Office of Special Counsel (OSC). Van v.
4
Department of Veterans Affairs, MSPB Docket No. DA-1221-16-0244-W-1,
Appeal File (0244 AF), Tab 1 at 10, Tab 3. The complaint culminated in a
February 24, 2016 Board appeal, which was dismissed as settled on September 6,
2016. 0244 AF, Tabs 1, 18, 20.
¶6 Meanwhile, the witnesses broadly agreed that, when Dr. L took over for
Dr. A in the summer of 2015, the Imaging Service was in disarray: Morale was
low, several physicians had secured legal counsel for various reasons, a
significant backlog of work had accumulated, and the service was severely
understaffed, particularly at the leadership level. IAF, Tab 20 at 76-77; HCD 1,
Track 2 at 3:45 (testimony of Human Resources Specialist); HCD 2, Track 1
at 44:00, 2:14:30 (testimony of Dr. L). In the wake of the appellant’s departure,
Dr. L began the process of rebuilding the Imaging Service, issuing several
vacancy announcements, including the two at issue in this appeal. IAF, Tab 23
at 6; HCD 2, Track 1 at 44:00 (testimony of Dr. L.).
¶7 The first vacancy at issue was for Section Chief of Diagnostic Radiology.
The agency announced the vacancy on September 9, 2016, open to current
Imaging Service employees only. IAF, Tab 1 at 76. The appellant applied for the
position, but because she was no longer a Federal employee, her name was not
referred to Dr. L, the selecting official. IAF, Tab 11 at 94, 99-100; HCD 1,
Track 2 at 7:55 (testimony of Human Resources Specialist). Dr. L selected
Dr. W, who had begun as a staff physician in January 2016, and was the only
internal candidate to apply. IAF, Tab 11 at 94, 100, 117; HCD 1, Track 2
at 36:30 (testimony of Human Resources Specialist), Track 3 at 1:18:45
(testimony of Dr. W); HCD 2, Track 1 at 2:10:50 (testimony of Dr. L).
¶8 The second vacancy was for Service Chief, announced on April 25, 2017,
through the open competitive process. IAF, Tab 1 at 92. The appellant applied
for this position as well, but after scoring her application, Dr. L determined that
she did not meet the cutoff for an interview, and so she was not selected for that
position either. IAF, Tab 32 at 25; HCD 1, Track 3 at 26:00 (testimony of
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Supervisory Staff Specialist); HCD 2, Track 1 at 1:53:30 (testimony of Dr. L).
The agency extended offers to multiple applicants who ultimately declined,
before it settled on the same Dr. W, whom it had promoted to Section Chief just
9 months before. HCD 1, Track 3 at 22:00 (testimony of Supervisory Staff
Specialist), 1:14:20 (testimony of Dr. W); HCD 2, Track 1 at 2:51:30, 2:21:30,
3:14:40 (testimony of Dr. L).
¶9 The appellant filed another whistleblower complaint with OSC, claiming
that her nonselections were the product of whistleblower retaliation. IAF, Tab 1
at 164-77. OSC closed its file without taking corrective action, and the appellant
filed the instant IRA appeal. Id. at 5, 203-04.
¶10 After a hearing, the administrative judge issued an initial decision denying
the appellant’s request for corrective action on the merits. IAF, Tab 47, Initial
Decision (ID). She found that the appellant engaged in protected activity that
was a contributing factor in the nonselections, but that the agency proved by clear
and convincing evidence that it would have made the same hiring decisions even
absent the appellant’s protected activity. ID at 7-18.
¶11 The appellant has filed a petition for review, disputing the administrative
judge’s analysis of the agency’s affirmative defense. Petition for Review (PFR)
File, Tab 1. The agency has filed a response to the petition for review, and the
appellant has filed a reply to the agency’s response. PFR File, Tabs 3-4.
ANALYSIS
¶12 In the merits phase of an IRA appeal, the appellant has the burden of
proving by preponderant evidence that she engaged in protected activity described
under 5 U.S.C. § 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), and that this activity
was a contributing factor in a personnel action as described under 5 U.S.C.
§ 2302(a)(2)(A). Salerno v. Department of the Interior, 123 M.S.P.R. 230, ¶ 5
(2016). If the appellant meets her burden, the Board will order corrective action
unless the agency proves by clear and convincing evidence that it would have
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taken the same personnel action in the absence of the protected activity. 5 U.S.C.
§ 1221(e); Salerno, 123 M.S.P.R. 230, ¶ 5. In determining whether an agency has
met its burden, the Board will consider all of the relevant factors, including the
following: (1) The strength of the agency’s evidence in support of its action;
(2) the existence and strength of any motive to retaliate on the part of the agency
officials who were 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); Parikh v. Department of Veterans Affairs,
116 M.S.P.R. 197, ¶ 36 (2011).
¶13 In this case, the administrative judge found that the appellant proved her
case in chief. ID at 7-9. The appellant alleged retaliation for multiple protected
disclosures and activities, including her disclosures regarding the competency of
her physician coworker, a complaint to the agency’s Office of Inspector General,
her first OSC complaint, and her prior Board appeal. ID at 5. The administrative
judge found that all of these matters were protected under the Whistleblower
Protection Act, as amended. ID at 7. However, she also found that the appellant
only proved contributing factor with respect to her disclosures concerning
physician competency, and that the only relevant official who knew about these
disclosures was Dr. L. ID at 8-9. Neither party disputes these findings, and they
appear to be supported by the record.
¶14 In assessing the agency’s affirmative defense, the administrative judge
applied the Carr factors, finding that Dr. L had some motive to retaliate, although
such motive was not particularly strong, the agency presented strong evidence in
support of its hiring actions, and the treatment of similarly situated
non-whistleblowers was not a significant factor. ID at 9-18. Weighing these
factors together, the administrative judge found that the agency proved by clear
and convincing evidence that it would not have selected the appellant for either of
the positions at issue, even absent her protected activity. ID at 18.
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¶15 Regarding the strength of the agency’s evidence in support of its actions,
the administrative judge considered the agency’s explanation for each of its hiring
decisions separately. As stated above, the appellant was not selected for the
Section Chief position because she was not within the area of consideration for
the vacancy announcement, i.e., current employees within the Audie Murphy
VA’s Imaging Service. IAF, Tab 1 at 76. Thus, the issue is essentially whether
the agency intentionally used the internal hiring process to exclude the appellant
from applying. The administrative judge credited the agency’s explanation that
the Audie Murphy VA often uses internal hiring, and the internal hiring process
in this case allowed the agency to avoid creating a new full-time equivalency
(FTE) in the Imaging Service. ID at 14-15. She also credited Dr. L’s explanation
that the internal hiring process was meant to create advancement opportunities for
current employees of the troubled Imaging Service, and she noted that Dr. L made
the decision to hire internally shortly after the appellant resigned and well before
she notified him in June 2016 that she wished to be considered for available
positions. ID at 14; IAF, Tab 1 at 97-98.
¶16 As stated above, the appellant was not selected for the Service Chief
position because her application score did not meet the cutoff for an interview.
The cutoff score was 20, but Dr. L scored the appellant’s application at 13. IAF,
Tab 32 at 25. The main point of contention here is whether the appellant should
have gotten credit for “Assignment as a Radiology Service or Section Chief,” in
light of work that she did in the Nuclear Medicine Section, wherein she “basically
ran” the section for 18 months and filled in at other times while the Section Chief
was occupied with other matters. See HCD 2, Track 2 at 6:30 (testimony of the
appellant). Had she been given credit for this work as “Assignment as a
Radiology . . . Section Chief,” her application score would have made the cutoff
for an interview. IAF, Tab 32 at 25. However, the administrative judge found
that the appellant’s application package did not reflect that she ever had any
leave-approving, disciplinary, hiring, or firing authority, or that she ever
8
negotiated with the union or dealt with bargaining unit employees, and she
credited Dr. L’s testimony that acting as Service Chief periodically while
someone is out of the office is not the same as being officially designated as
Acting Service Chief, with official responsibility and authority to make
management decisions. ID at 17.
¶17 Regarding Dr. L’s motive to retaliate, the administrative judge considered
the declaration of the former Radiology Administrator, who stated that Dr. L had
told him specifically that he did not want the appellant to come back because of
the turmoil that her whistleblowing activity had caused. ID at 10-11; IAF, Tab 1
at 58-62. The Radiology Administrator testified at the hearing consistent with his
declaration, and applying the factors set forth in Hillen v. Department of the
Army, 35 M.S.P.R. 453, 458 (1987), including her observation of the witness’s
demeanor, the administrative judge found his testimony to be credible. ID
at 10-11; HCD 1, Track 1 at 12:30, 43:40 (testimony of the Radiology
Administrator). The administrative judge also considered Dr. L’s own deposition
testimony, in which he explained that bringing the appellant back would have
been difficult because it would have exacerbated interpersonal issues already
present in the troubled Imaging Service, which he was then trying to rebuild. ID
at 11-13. The administrative judge further considered that neither Dr. L nor
anyone in his direct supervisory chain at the time was the subject of the
whistleblowing, but as a high-ranking management official with general oversight
responsibilities, he may have been indirectly implicated. ID at 13-14.
Furthermore, as Deputy Chief of Staff, Dr. L worked closely with the Chief of
Staff, who did oversee the Imaging Service directly. Id. The administrative
judge also noted that Dr. L and the appellant were on good terms when she
departed, with no hint of personal animus either way. ID at 14. The
administrative judge concluded that Dr. L had some retaliatory motive, but that
this motive was not particularly strong. ID at 14.
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¶18 Regarding the agency’s treatment of similarly situated non -whistleblowers,
the administrative judge found that there was no pertinent evidence concerning
this Carr factor, and that it did not figure significantly into the analysis. ID
at 18.
¶19 The appellant disputes these findings on review, arguing that the
administrative judge got several facts wrong, failed to consider other facts, and
weighed the evidence incorrectly. PFR File, Tab 1 at 7. At the outset, we note
that the administrative judge’s failure to mention all of the evidence in this
extensive record does not mean that she did not consider it in reaching her
decision. See Marques v. Department of Health and Human Services ,
22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).
Nevertheless, the U.S. Court of Appeals for the Federal Circuit has held that
evidence 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, and that it is error for the
Board to not evaluate all the pertinent evidence in determining whether an
element of a claim or defense has been adequately proven. Whitmore v.
Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012). Mindful of these
principles, we have closely reviewed the record in this appeal and carefully
considered each of the appellant’s contentions on review. Accordingly, we
supplement the initial decision as set forth below.
¶20 Regarding the first Carr factor, the appellant argues that the benefits of
internal hiring all applied to her because, even though she was not a current
employee when the Section Chief vacancy was announced, she had only recently
departed. PFR File, Tab 1 at 13-14. This, however, is not unqualifiedly true;
because the appellant had separated from service, she would have had to go
through the pre-employment process just like any other external candidate, and,
depending on applicable expiration dates, she may have had to undergo
recredentialing, a new background check, a new physical, or other
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pre-employment requirements. HCD 1, Track 2 at 1:21:40 (testimony of the
Human Resources Specialist). The appellant also disputes the administrative
judge’s finding that the internal hiring process allowed the Section Chief
appointment to be FTE-neutral. PFR File, Tab 1 at 10; ID at 4, 14-15. She
argues that Dr. W’s staff Physician position was, in fact, backfilled after he was
promoted to Section Chief. PFR File, Tab 1 at 10; IAF, Tab 20 at 91-92. We
disagree. The Diagnostic Radiology Section Chief was FTE-neutral because it
was created by converting an existing staff Physician position into a Section
Chief position. IAF, Tab 32 at 23; HCD 1, Track 3 (testimony of Dr. W); HCD 2,
Track 1 at 38:25 (testimony of Dr. L). The fact that the agency subsequently
filled another of its vacant FTEs in that section is immaterial because the total
number of FTEs remained the same. In any event, we find that it is simply too
much to expect that the agency should have changed the entire focus of the hiring
process in order to reach a single potential candidate who had not contacted the
agency since her departure more than a year prior and who had never before
expressed any interest in taking a management position. 3 HCD 2 at 1:14:15,
2:07:20, 3:11:10 (testimony of Dr. L). We find it highly unlikely that Dr. L
would have made the decision to recruit internally in order to exclude a candidate
whom he had little or no reason to believe would be applying. Along these lines,
the appellant argues that her June 12, 2015 email put Dr. L on notice that she was
interested in returning to the agency before he made his decision to recruit for the
Section Chief position internally. PFR File, Tab 1 at 7-8, 14; IAF, Tab 11 at 16.
Again, we disagree. In this email, the appellant expressed a desire to keep her
clinical privileges at the Audie Murphy VA and a willingness to help out on an ad
3
On June 14, 2016, the appellant wrote Dr. L a letter asking to be considered for any
radiology vacancies for which she might be qualified. PFR File, Tab 1 at 8; IAF, Tab 1
at 97-98. However, she wrote this letter after her nonselection for the Section Chief
position and, although she was not selected for the Service Chief position, her
application for it was considered. To the extent that the appellant is arguing that Dr. L
should have noncompetitively appointed her to a staff Physician or other unspecified
position, PFR File, Tab 1 at 8-9, this is beyond the scope of the instant appeal, which
involves only the Section and Service Chief positions.
11
hoc basis. 4 IAF, Tab 11 at 16. We do not read this email as indicating a desire to
return to Federal employment, much less employment as a Section Chief. For the
reasons explained in the initial decision, we agree with the administrative judge
that the agency presented compelling evidence in support of Dr. L’s decision to
recruit internally for Section Chief of Diagnostic Radiology, and we see little
reason to doubt the veracity of the agency’s explanation. ID at 14-15.
¶21 Regarding the Service Chief position, the appellant argues that Dr. L should
have credited her as having been assigned to a radiology Section Chief position
because her application package outlined her extensive supervisory experience as
well as her experience acting as Nuclear Medicine Section Chief in Dr. D’s
absence. PFR File, Tab 1 at 11, 14-15; IAF, Tab 1 at 102-10, Tab 24 at 7. It is
undisputed that, had the appellant received such credit, her application score
would have entitled her to an interview, and the record shows that the appellant
had experience supervising staff and residents. IAF, Tab 32 at 25; HCD 2, Track
2 at 6:15 (testimony of the appellant). Although all physicians at the Audie
Murphy VA supervise staff and residents, the appellant’s experience in this
regard seems to have been more extensive than most. HCD 2, Track 1 at 1:30:16
(testimony of Dr. L); HCD 2, Track 2 at 6:15, 14:20 (testimony of the appellant).
This difference, however, appears to be largely a matter of degree; the appellant’s
supervisory experience did not entail disciplinary authority, hiring and firing,
leave approval, addressing grievances, or business planning, which was the type
of experience that Dr. L was looking for and that the appellant would have
received had she been officially detailed to Section Chief. HCD 2, Track 1
at 1:29:55 (testimony of Dr. L), Track 2 at 22:00 (testimony of the appellant); see
generally 5 U.S.C. § 7103(a)(10) (defining “supervisor” for purposes of Federal
labor-management and employee relations). For the reasons explained in the
4
Dr. L testified that it would not actually have been possible for the appellant to retain
her clinical privileges at the Audie Murphy VA after her resignation because her change
in employment status would have required recredentialing. HCD 2 at 1:11:10
(testimony of Dr. L).
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initial decision, we agree with the administrative judge that the agency presented
strong evidence to support its scoring of the appellant’s application for the
Service Chief position. ID at 15-17.
¶22 Regarding the first Carr factor in general, the appellant argues that she was
a good employee during her tenure with the agency and that there was nothing
about her that should have prevented her from being rehired. PFR File, Tab 1
at 7-8. We agree. The record is clear concerning the appellant’s colleagues’ high
regard for her; not a single witness had anything negative to say about the
appellant, but to the contrary testified favorably about her and her supervisory
and clinical skills. HCD 1, Track 1 at 10:50 (testimony of Radiology
Administrator), Track 2 at 1:45 (testimony of Human Resources Specialist),
Track 3 at 51:30 (testimony of Dr. W), Track 4 at 2:00 (testimony of Dr. D),
52:05 (testimony of Dr. F); HCD 2, Track 1 at 3:39:50 (testimony of Dr. L).
However, we find that this is largely immaterial because the appellant’s
competence and good reputation did not put her within the area of consideration
for the Section Chief vacancy, and did not constitute the experience required for
an appointment to Service Chief.
¶23 Regarding the second Carr factor, the appellant argues that the
administrative judge failed to assess accurately the strength of Dr. L’s bias or to
figure it into her overall analysis. PFR File, Tab 1 at 15, 17-18. First, she argues
that Dr. L admitted in his deposition that he was biased against her and for that
reason had recused himself from a previous selection process for a staff Physician
position. Id. at 6-7, 10, 12, 15-17. We disagree with the appellant’s
characterization of Dr. L’s deposition testimony. Dr. L testified that he had the
potential to be biased, and not that he was actually biased against the appellant.
IAF, Tab 20 at 91-92. He later clarified at the hearing that he was referring to the
appearance of bias, and for that reason, he followed the advice of a human
resources official to remove himself from the decision process. HCD 2, Track 1
at 1:48:55, 3:05:15 (testimony of Dr. L).
13
¶24 In this same vein, the appellant argues that Dr. L testified that the
appellant’s return to the Imaging Service would cause turmoil and that this would
have created an additional problem that he would have to deal with in getting the
Service back into shape. PFR File, Tab 1 at 8, 15-16; IAF, Tab 20 at 77-78,
Tab 22 at 47-48; HCD 2, Track 1 at 3:24:10 (testimony of Dr. L). The appellant’s
characterization of Dr. L’s testimony in this regard is accurate. 5 We find,
however, that Dr. L’s candid admission of his concerns regarding such potential
turmoil must be viewed in the context of his demonstrated knowledge that
management is responsible for setting such considerations aside and addressing
any resulting disharmony in a fair and evenhanded manner. HCD 2, Track 1
at 3:27:50 (testimony of Dr. L).
¶25 Regarding the administrative judge’s finding that the appellant was on good
terms with Dr. L when she resigned, the appellant argues that this was only
because she was unaware that Dr. L was harboring retaliatory animus against her.
PFR File, Tab 1 at 18; ID at 14. The appellant’s point is well-taken. We find that
the absence of any overt hostility from Dr. L prior to the appellant’s resignation
is a relevant fact to consider, but it does little to show that Dr. L was not actually
harboring animus.
¶26 The appellant also argues that the administrative judge failed to properly
account for the deposition and hearing testimony of the Radiology Administrator,
who stated that he was involved in meetings in which Dr. L expressed his
retaliatory animus towards the appellant. PFR File, Tab 1 at 16, 18; IAF Tab 1
at 58-62; HCD 1, Track 1 at 12:30, 17:10 (testimony of Radiology
Administrator). We agree with the appellant that this evidence weighs in favor of
finding a strong retaliatory motive, particularly in light of the administrative
judge’s favorable demeanor-based credibility determinations. ID at 10-11.
However, we cannot discount the fact that the administrative judge had the
5
We disagree with this characterization to the extent that the appellant intimates that
Dr. L admitted he was actually biased against her for that reason. PFR File, Tab 1
at 15-16.
14
opportunity to observe Dr. L’s demeanor as well, and that the countervailing
evidence tempered her assessment of the strength of his retaliatory motive. ID
at 13-14. Having reviewed the initial decision and considered the pertinent
evidence of record, particularly Dr. L’s realistic assessment of the consequences
of the appellant’s whistleblowing and his clear understanding of his
responsibilities in that regard, we find that the appellant has not provided a
sufficiently sound basis for us to disturb the initial decision with respect to the
second Carr factor. See Haebe v. Department of Justice, 288 F.3d 1288, 1301
(Fed. Cir. 2002) .
¶27 Regarding the third Carr factor, the appellant argues that the agency bears
the burden of coming forward with evidence regarding similarly situated
non-whistleblowers, and that the agency bears the risk associated with having no
evidence on record for this factor. PFR File, Tab 1 at 19-20; see Miller v.
Department of Justice, 842 F.3d 1252, 1262 (Fed. Cir. 2016). We agree with the
appellant on this point. However, given the idiosyncratic nature of hiring
decisions, it is doubtful that any comparison cases, even assuming they existed,
would be able to shed much light on the instant appeal.
¶28 The appellant argues that the Radiology Administrator himself serves as a
comparison employee because Dr. L assigned him a very high performance rating
prior to his departure for another facility but began to question his competence
after he submitted a declaration in support of the appellant. PFR File, Tab 1
at 20; IAF, Tab 28; HCD 2, Track 1 at 2:20 (testimony of Dr. L). We find,
however, that Dr. L gave a reasonable explanation for this apparent discrepancy;
he testified that the problems with the Radiology Administrator’s work did not
come fully to light until after his departure, and in any event, he gave all of his
subordinates in the Imaging Department very high performance ratings for the
2015 performance year in light of the difficult situation that they all were facing.
HCD 2, Track 1 at 4:40, 2:43:50 (testimony of Dr. L). Therefore, after having
considered the appellant’s arguments on review, we agree with the administrative
15
judge that the third Carr factor is not significant under the facts of the instant
appeal.
¶29 Having found firm support for the administrative judge’s assessment of each
individual factor, we also agree with her conclusion that, weighing the evidence
as a whole, the agency has met its burden to prove by clear and convincing
evidence that it would have made the same hiring decisions notwithstanding the
appellant’s protected disclosures. ID at 18.
NOTICE OF APPEAL RIGHTS 6
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.
6
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.
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(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
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
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receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (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
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:
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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. 7 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
7
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.
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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.
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.