James Laurenzano v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES G. LAURENZANO, MD, DOCKET NUMBER
Appellant, PH-1221-17-0226-W-1
v.
DEPARTMENT OF VETERANS DATE: April 12, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
James G. Laurenzano, MD , Chicopee, Massachusetts, pro se.
Michael J. Berger , Esquire, Brooklyn, New York, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision that
denied his request for corrective action in his individual right of action (IRA)
appeal, as he failed to meet his burden of proving that he made a protected
disclosure. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
hold that the appellant proved that he exhausted his administrative remedies with
the Office of Special Counsel (OSC), we AFFIRM the initial decision.
BACKGROUND
On June 30, 2013, the agency appointed the appellant to the position of
Primary Care Physician, subject to a 2-year trial period. Initial Appeal File
(IAF), Tab 10 at 376. On April 25, 2014, the agency informed the appellant that
he would be terminated during his trial period, as the deciding official concurred
with the findings of a Professional Standards Board (PSB) that the appellant
should be separated. Id. at 11-12. The appellant’s termination took effect on
May 10, 2014. Id. at 10-11.
The appellant filed a complaint seeking corrective action with OSC in
2016, alleging that, in reprisal for making protected disclosures, the agency took
a number of actions against him, culminating in his termination. IAF, Tab 17
at 9-10, 12-31. In February 2017, OSC closed the investigation into the
appellant’s complaint with no further action and this IRA appeal to the Board
followed. IAF, Tab 15, 2 Tab 17 at 9-11.
2
The administrative judge noted that the appellant’s initial appeal was difficult to
comprehend and permitted him to refile. IAF, Tab 13 at 1. The appellant did so, and
3
After holding a hearing, the administrative judge issued an initial decision
in which he found that the Board has jurisdiction over the appeal but denied the
appellant’s request for corrective action. IAF, Tab 39, Initial Decision (ID). The
administrative judge concluded that the appellant failed to meet his burden of
proving by preponderant evidence that he made a protected disclosure. ID at 6-9.
The appellant has filed a petition for review, setting forth a single argument that
the administrative judge incorrectly stated in the initial decision that the appellant
testified that he had problems with his memory caused by a medical condition.
ID at 5; Petition for Review (PFR) File, Tab 1 at 1-3. The appellant raises no
other issues with the initial decision. PFR File, Tab 1 at 1-3. The agency has
responded to the appellant’s petition for review, agreeing that the administrative
judge misconstrued the appellant’s hearing testimony regarding his memory, but
arguing that the error was not material because it did not impact the overall
conclusion of the initial decision. PFR File, Tab 3 at 4-7.
DISCUSSION OF ARGUMENTS ON REVIEW 3
The Board has jurisdiction over this appeal.
In an IRA appeal, the Board may only consider matters that the appellant
first raised before OSC. Mason v. Department of Homeland Security,
116 M.S.P.R. 135, ¶ 8 (2011); see Rebstock Consolidation v. Department of
Homeland Security, 122 M.S.P.R. 661, ¶ 9 (2015). The initial decision does not
reach a conclusion as to whether the appellant exhausted his administrative
remedies with OSC. ID at 1-12. A disposition on this issue is paramount
because, in order for the Board to have jurisdiction over an IRA appeal, an
appellant, among other requirements, must first prove by preponderant evidence
that he exhausted his administrative remedies with OSC. Salerno v. Department
we will cite to the refiled initial appeal. IAF, Tab 15.
3
On December 12, 2017, the National Defense Authorization Act for Fiscal Year 2018
(NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law. Section 1097 of the
NDAA amended various provisions of title 5 of the United States Code. Our decision in
this appeal is unaffected by any amendments set forth in the NDAA.
4
of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016); 5 C.F.R. § 1201.57(c)(1). The
purpose of this exhaustion requirement with OSC prior to filing an IRA appeal
with the Board is to give OSC “the opportunity to take corrective action before
involving the Board in the case.” Ward v. Merit Systems Protection Board,
981 F.2d 521, 526 (Fed. Cir. 1992). The Whistleblower Protection Enhancement
Act of 2012 provides that, if OSC finds that there is a substantial likelihood that
the information it received discloses a violation, it “shall transmit the information
to the head of the agency involved for investigation and report . . . .” Id. (making
this finding based on the same language in the prior Whistleblower Protection
Act); see 5 U.S.C. § 1213(b), (c). These inquiries by OSC, and their transmittal
to agencies for remedial action, are a major component of OSC’s work. Ward,
981 F.2d at 526. Thus, the substantive requirements of exhaustion are met when
an appellant has provided OSC with a sufficient basis to pursue an investigation
that might lead to corrective action. Chambers v. Department of Homeland
Security, 2022 MSPB 8, ¶ 10.
An appellant may demonstrate exhaustion through his initial OSC
complaint, evidence that he amended the original complaint, including but not
limited to OSC’s determination letter and other letters from OSC referencing any
amended allegations, and the appellant’s written responses to OSC referencing
the amended allegations. Mason, 116 M.S.P.R. 135, ¶ 8; see Benton-Flores v.
Department of Defense, 121 M.S.P.R. 428, ¶ 6 (2014) (outlining how an appellant
can prove exhaustion through submission of correspondence with OSC
concerning his allegations). In the alternative, exhaustion may be proved through
other sufficiently reliable evidence, such as an affidavit or declaration attesting
that the appellant raised with OSC the substance of the facts in the Board appeal.
Chambers, 2022 MSPB 8, ¶ 11; Mason, 116 M.S.P.R. 135, ¶ 8.
Here, the appellant submitted the close-out letter from the OSC complaint
that he filed with OSC in 2016. IAF, Tab 17 at 9-10. The close-out letter
detailed the alleged protected disclosures that the appellant made and personnel
5
actions purportedly taken by the agency against him in reprisal. Id. The alleged
protected disclosures consisted of the following: (1) the appellant advising his
supervisors of excessive heat in his office resulting in a violation of the Health
Insurance Portability and Accountability Act because he had to leave his door
open when treating patients; (2) the appellant advising his supervisors that his
first-line supervisor was interfering and micromanaging his care of patients;
(3) the appellant questioning his first-line supervisor’s decision to prescribe
Percocet to a patient and the prescription practice of a Nurse Practitioner; and
(4) the appellant informing his first-line supervisor that other members of the
medical team were ordering lab tests of his patients and putting him as the
prescribing doctor. Id. at 9. The personnel actions included the agency
suspending the appellant’s privileges to prescribe narcotics, conducting three
reviews of his work by a PSB, and his termination. Id. at 10. OSC closed the
investigation into the appellant’s complaint with no further action and advised
him of his right to file an IRA appeal with the Board. Id. at 9-11. We find that
the appellant proved by preponderant evidence that he exhausted his
administrative remedies with OSC on these claims prior to filing the instant IRA
appeal. The same alleged protected disclosures and personnel actions that the
appellant first exhausted with OSC were considered by the administrative judge
in the initial decision. 4 ID at 2, 6-10. We also agree with the administrative
judge’s implicit finding that the appellant made nonfrivolous allegations that he
made protected disclosures that were a contributing factor in the agency’s
decision to take a personnel action. Therefore, the appellant has established
jurisdiction over his appeal.
The appellant failed to prove that he made a protected disclosure.
In order to prevail on the merits of an IRA appeal before the Board, an
appellant must prove by preponderant evidence that he made a disclosure
4
On review, the appellant raises no issue with the characterization of his purported
protected disclosures and retaliatory personnel actions. PFR File, Tab 1.
6
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 the disclosure or
protected activity was a contributing factor in the agency’s decision to take or fail
to take a personnel action outlined in 5 U.S.C. § 2302(a). 5 U.S.C. § 1221(e);
Salerno, 123 M.S.P.R. 230, ¶ 5. If this burden is met, the Board must order
corrective action unless the agency establishes by clear and convincing evidence
that it would have taken the same personnel action despite the appellant making
the protected disclosure or engaging in the protected activity. 5 U.S.C. § 1221(e)
(2); Carr v. Social Security Administration, 185 F.3d 1318, 1322 (Fed. Cir. 1999);
Aquino v. Department of Homeland Security, 121 M.S.P.R. 35, ¶ 10 (2014).
After a review of the record, we agree with the administrative judge that
the appellant did not meet his burden of proving by preponderant evidence that he
made a protected disclosure. This conclusion is supported by the evidence of
record. See Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016)
(finding no reason to disturb the administrative judge’s findings in the initial
decision when she considered the evidence, drew appropriate inferences,
and made reasoned conclusions); Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987) (same).
As the appellant pointed out in his petition for review and the agency in its
response, the administrative judge erred when stating in the initial decision that
the appellant testified that he had problems with his memory caused by a medical
condition. ID at 5; PFR File, Tab 1 at 1-3, Tab 3 at 5. In order for the Board to
grant a petition for review based on a factual error, such error must be material.
Elder v. Department of the Air Force, 124 M.S.P.R. 12, ¶ 36 (2016); 5 C.F.R.
§ 1201.115(a)(1). A material error is one that is of sufficient weight to warrant
an outcome different from that of the initial decision. 5 C.F.R. § 1201.115(a)(1).
The error in this case had no bearing on the overall conclusion that the appellant
failed to prove by preponderant evidence that he made a protected disclosure.
This disposition does not rely on the appellant’s hearing testimony, and therefore
7
the administrative judge’s error in his assessment of the appellant’s testimony
does not necessitate a remand or any other reassessment of the appellant’s
testimony. See Social Security Administration v. Long , 113 M.S.P.R. 190, ¶ 25
(2010) (stating that, when the record is sufficiently developed on an issue and
there is no need to rely upon witness demeanor, it is not necessary to remand the
case), aff’d, 635 F.3d 526 (Fed. Cir. 2011). Furthermore, the administrative
judge’s error did not infringe on any of the appellant’s substantive rights. See
Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (holding that
an adjudicatory error that is not prejudicial to a party’s substantive rights
provides no basis for reversal of an initial decision).
Beyond the appellant’s argument regarding the mischaracterization of a
single portion of his hearing testimony, he does not challenge the administrative
judge’s finding that he failed to make a protected disclosure. PFR File, Tab 1.
As found in the initial decision, the appellant’s request for corrective action must
be denied on these grounds. ID at 6-9, 11; see Kleckner v. Department of
Veterans Affairs, 96 M.S.P.R. 331, ¶ 7 (2004) (denying the appellant’s request for
corrective action in his IRA appeal, as he did not prove by preponderant evidence
that his disclosures were protected).
NOTICE OF APPEAL RIGHTS 5
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
5
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.
8
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
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
9
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. 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
10
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. 6 The court of appeals must receive your petition for
6
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.
11
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
12
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.