Lori L Drumm v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LORI LEE DRUMM, DOCKET NUMBER
Appellant, CH-1221-18-0158-W-1
v.
DEPARTMENT OF VETERANS DATE: October 28, 2024
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Stephen Goldenzweig , Esquire, Houston, Texas, for the appellant.
Chadwick C. Duran , Esquire, and Danielle Kalivoda , Esquire,
Indianapolis, Indiana, for the agency.
Nicholas E. Kennedy , Akron, Ohio, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member*
*Member Kerner recused himself and did not participate in the adjudication of
this appeal.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
FINAL ORDER
The agency has filed a petition for review and the appellant has filed a
cross petition for review of the initial decision, which granted in part and denied
in part the appellant’s request for corrective action in connection with her
individual right of action (IRA) appeal. For the reasons discussed below, we
GRANT the agency’s petition for review and reverse the administrative judge’s
granting of corrective action regarding the agency’s suspension of the appellant’s
privileges. We DENY the appellant’s cross petition for review. The appellant’s
request for corrective action is denied as to all matters.
BACKGROUND
The essential facts in this appeal are set forth below and are largely drawn
from the administrative judge’s thorough initial decision. The parties do not
challenge these essential facts.
During the 2-year period relevant to this appeal, the appellant encumbered
the position of Associate Chief of Staff at the Veterans Affairs Northern Indiana
Health Care System (VANIHCS). Her first-level supervisor was the VANIHCS
Chief of Staff (COS), and her second-level supervisor was the VANIHCS
Director. In her position, the appellant served as the first-line supervisor of
primary care physicians, many of whom were in remote Indiana sites. As a
collateral duty, she also served as Opioid Safety Initiative (OSI) Co-Champion.
Shortly after the appellant was appointed to her position, she began to be
concerned about the number of patients at the facility who were being prescribed
opioids on a long-term basis. Because of the dangers inherent in that situation,
the appellant favored gradually reducing opioid dosage levels with a view toward
patients becoming opioid free. As a result, the primary care providers she
supervised increased the “tapering” and suspension of patient opioid prescriptions
by employing other methods of pain control.
3
The focus at the facility on reducing patient opioid levels attracted
congressional scrutiny and media attention. Patients who were dissatisfied let
their opinions be known through surveys that reflected poorly on VANIHCS and
complaints to patient advocates, members of Congress, and high-level agency
management. The appellant raised to VANIHCS her concerns that executive
leadership appeared to care more about patient satisfaction and positive feedback
than the clinical judgment of the treating providers and that non-providers were
improperly influencing health care provider decisions concerning opioid
prescriptions. Initial Appeal File (IAF), Tab 8 at 47-51.
Subsequently, two members of the House Committee on Veterans’ Affairs
wrote to the Veterans’ Affairs Secretary concerning a number of matters,
including an allegation that the appellant was tapering veterans from their opioid
medication without contacting or examining them, but rather based only on chart
review, and they requested that the agency’s Office of Medical Inspector (OMI)
conduct an investigation, which it did. IAF, Tab 12 at 436-37. The investigation
found that six veterans experienced changes in their medication without any
communication from the appellant, in violation of Indiana law, adopted as
VANIHCS medical center policy, which requires face-to-face meetings every
2 months for patients whose opioid regimen is changed. Id. at 278-305. OMI
recommended that VANIHCS determine the appropriate educational,
administrative, or disciplinary accountability for the appellant’s noncompliance
with state law and medical center policy. Id. at 285. The House Veterans Affairs
Committee wrote to the Secretary of Department of Veterans Affairs inquiring
how VANIHCS had addressed the findings regarding the appellant, specifically,
what administrative actions it took against her, whether her practice privileges
had been or would be suspended, and whether she would be reported to the state
licensing authority. Id. at 431.
On May 26, 2017, based on the recommendation of the COS, the
VANIHCS Director suspended the appellant’s privileges pending a
4
comprehensive review of allegations that she failed to “implement opioid safety
initiatives with Veterans in a safe and ethical manner.” IAF, Tab 12 at 348. That
investigation included a review of the records of all the appellant’s patients
during the period in question to determine whether any veterans had been harmed
due to the appellant’s actions, but no such harm was found. Hearing Transcript
(HT) at 239, 242 (testimony of COS). Thereafter, the Professional Standards
Board (PSB) unanimously recommended that the appellant’s privileges be
reinstated, and they were, effective June 23, 2017. Id. at 329, 346.
The appellant filed a whistleblower reprisal complaint with the Office of
Special Counsel (OSC). IAF, Tab 1 at 27-40. She listed a number of protected
disclosures she had made to the COS and/or the VANIHCS Director regarding the
opioid prescription situation at the facility that, she alleged, reflected a
significant threat to public health and safety and a violation of law. Id. She also
raised a number of personnel actions she claimed the agency had taken against
her based on the disclosures, including the suspension of her privileges and her
concurrent removal as OSI Co-Champion. Id. The appellant subsequently
amended her complaint to include a proposed reprimand she had received for
failure to follow medical center policy related to opioid prescriptions that was
subsequently reduced to a letter of counseling. Id. at 23-24, 41-72; IAF, Tab 12
at 18. On September 14, 2017, the appellant notified the COS that she intended
to retire effective October 6, 2017, and she did so. IAF, Tab 12 at 15, 17. She
also notified OSC of her retirement and alleged that it was involuntary. IAF,
Tab 1 at 73.
After OSC issued a closure letter, IAF, Tab 1 at 74, the appellant filed an
appeal with the Board that included the same alleged protected disclosures and
personnel actions described in her OSC complaint as amended. IAF, Tab 1. She
requested a hearing. Id. at 2.
After holding the appellant’s requested hearing, the administrative judge
issued an initial decision granting in part and denying in part the appellant’s
5
request for corrective action. IAF, Tab 41, Initial Decision (ID) at 2, 55. After
finding that the appellant established that she had exhausted her administrative
remedies, ID at 12-14, the administrative judge found that the appellant made
nine specific protected disclosures between November 2015 and March 2017 to
VANIHCS leadership (the COS and the Director) relating to opioid prescription
issues, including opioid over-prescription, patient diversion of opioids, improper
provider training on urine drug screens, and improper influence on medical
decisions or opioid safety plans, and that she reasonably believed that her
disclosures evidenced potential violations of law and a substantial and specific
danger to public health and safety. ID at 14-26. The administrative judge further
found that the appellant established that her disclosures were a contributing factor
in three personnel actions, the agency’s summary suspension of her health care
privileges, her concurrent removal as OSI Facility Co-Champion, and the
proposed reprimand, noting that the first two of these actions constituted a
significant change to the appellant’s duties and responsibilities. ID at 26-28. The
administrative judge further found that the appellant failed to show that her
retirement was involuntary and that therefore it did not constitute a personnel
action under 5 U.S.C. § 2302(a)(2)(A). 2 ID at 36-40. The administrative judge
then determined that the agency failed to show by clear and convincing evidence
that it would have suspended the appellant’s privileges absent her protected
disclosures, ID at 42-49, but that it did make the required showing regarding her
removal as OSI Facility Co-Champion, ID at 49-50, and the proposed reprimand,
ID at 50-54. Accordingly, the administrative judge found that the appellant was
entitled to corrective action only regarding the suspension of her medical
privileges, and he therefore granted relief in part and denied it in part. ID at 55.
2
In addition, the administrative judge found that the appellant failed to meet her burden
to show that her protected disclosures were a contributing factor to another alleged
personnel action, ID at 28-29, and that she also failed to show that she was subjected to
two other alleged personnel actions. ID at 30-36. The appellant has not challenged any
of these findings on review, and therefore, we do not address them further.
6
The agency has filed a petition for review, Petition for Review (PFR) File,
Tab 1. The appellant has responded and has also filed a cross petition for review.
PFR File, Tab 3. The agency has responded to the cross petition for review. PFR
File, Tab 4.
ANALYSIS
The administrative judge erred in finding that the agency failed to present clear
and convincing evidence that it would have suspended the appellant’s privileges
absent her protected disclosures.
On review, the agency argues only that the administrative judge erred in
finding that it did not present clear and convincing evidence that it would have
suspended the appellant’s clinical privileges absent her protected disclosures.
PFR File, Tab 1 at 8-17. For the reasons discussed below, we agree with the
agency.
Clear and convincing evidence is a high burden of proof. Whitmore v.
Department of Labor, 680 F.3d 1353, 1367 (Fed. Cir. (2012). Relevant factors
deemed appropriate for consideration of whether the agency has met its burden
are: (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 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). Evidence only supports this high burden when it
does so in the aggregate considering all of the pertinent evidence in the record,
including that which detracts from the conclusion. Whitmore, 680 F.3d at 1368.
In finding that the agency failed to meet its burden regarding the
suspension of the appellant’s clinical privileges, the administrative judge first
considered Carr factor (2), the motive to retaliate. Because the administrative
judge started his analysis with the second Carr factor, we will do so as well. We
will then discuss the first Carr factor, and finally the third factor.
7
The administrative judge found that the second Carr factor weighs heavily
in the appellant’s favor. 3 ID at 41-42. The administrative judge considered that
the opioid crisis and attendant problems were of concern to VANIHCS
management, that public scrutiny had cast the facility in an unfavorable light, and
that both the COS and the Director were sensitive to public criticism of the
facility. ID at 42.
The agency contends that the administrative judge made inconsistent and
erroneous conclusions of material fact and failed to address certain evidence
regarding Carr factor (2). For example, the agency argues that the administrative
judge erred in finding that the Director had a motive to retaliate against the
appellant based on her disclosure that he influenced medical decisions relating to
opioids. PFR File, Tab 1 at 9. The administrative judge found that it was more
likely than not that the Director influenced clinical decision-making through the
COS. ID at 24. In support of his finding, the administrative judge considered the
testimony of Dr. C.G., HT at 148-50, and Dr. D.W., HT at 183-86, two primary
care physicians whom the appellant supervised. ID at 20. Although the agency
argues that the appellant was not correct in her allegations of influence, PFR File,
Tab 1 at 9, whether she was or not is not the issue. The administrative judge
found, and the agency does not challenge, that the appellant engaged in protected
activity when she made disclosures to VANIHCS leadership, including that there
was improper influence on medical decisions related to opioid prescription issues,
and that she reasonably believed that such influence evidenced potential
violations of law and a substantial and specific danger to public health and safety.
ID at 26. However, to the extent that this disclosure evidences a motive to
retaliate, it does not, in and of itself, support a finding that Carr factor (2) weighs
heavily in the appellant’s favor as the administrative judge found.
3
The administrative judge made this finding regarding a motive to retaliate concerning
all three of the personnel actions at issue in this appeal. ID at 41-42.
8
The agency further argues on review that the administrative judge failed to
consider that both the COS and the Director testified that they generally agreed
with the appellant regarding the need for reducing opioid use among the facility’s
patients, and that such evidence does not support a finding that they had a strong
motive to retaliate against her. PFR File, Tab 1 at 10; HT at 199-200, 270-71
(testimony of the COS), 280, 306-07 (testimony of the Director). The
administrative judge’s failure to mention all of the evidence of record does not
mean that he did not consider it in reaching his decision. 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). On the other hand, an initial decision must
identify all material issues of fact and summarize the evidence. Spithaler v.
Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980). Here, the omitted
evidence appears to be significant and is relevant to the degree of retaliatory
motive, for if the COS and Director shared the appellant’s concern about opioid
use among veterans, that would undercut a finding of a motive to retaliate and
would make the analysis of the second Carr factor more complicated than the
administrative judge found. The analysis is further complicated by the Director’s
testimony that he was afraid the appellant had created a culture where veterans
were seen as drug seekers, that he was angered by such labels, and that his
guidance was to defer to the veteran. HT at 284 (testimony of the Director). The
Director’s more specific testimony that he was at odds with the appellant’s
position on how to achieve the reduction of opioids could support a finding that
he had a strong motivate to retaliate against her. IAF, Tab 24 at 83 (sworn
testimony of the Director before the Administrative Inquiry Board). 4 However,
after initially finding that the COS and the Director clearly had a motive to
retaliate against the appellant, given the undisputed weight of patient complaints,
4
Just prior to the suspension of the appellant’s privileges and her removal as OSI Co-
Champion, an Administrative Inquiry Board was tasked with hearing testimony from
witnesses related to issues at the facility, and the appellant, among others, was
interviewed. IAF, Tab 12 at 168.
9
media coverage, 5 and congressional scrutiny of the opioid issue at VANIHCS, ID
at 49, the administrative judge subsequently found, while discussing the proposed
reprimand of the appellant, that such influence or scrutiny was unrelated to the
appellant’s protected disclosures. ID at 54. We fail to see, nor did the
administrative judge explain, how the outside influence and scrutiny could have
been unrelated to the protected disclosures in analyzing motive with respect to the
proposed reprimand yet related to the protected disclosures in assessing whether
there was motive when suspending the appellant’s privileges. Both personnel
actions were based on the same conduct—the appellant’s failure to comply with
medical center policy and state law in adjusting the opioid regimens of a number
of veterans.
In sum, the administrative judge’s inconsistent findings and failure to
mention significant evidence call into question his findings regarding Carr
factor (2). We have carefully considered the evidence regarding the motive to
retaliate, and, while we agree with the administrative judge that there was a
motive to retaliate, we do not find the motive as strong as the administrative
judge found.
The agency also challenges on review the administrative judge’s finding
that its support for the suspension of the appellant’s privileges was not strong. In
examining Carr factor (1), the Board looks at the evidence the agency had before
it when it took the alleged retaliatory action. Yunus v. Department of Veterans
Affairs, 242 F.3d 1367, 1372 (Fed. Cir. 2001). The administrative judge relied
considerably on the testimony of Dr. D., who was on the PSB at the time the
appellant’s privileges were suspended. ID at 45-46. The administrative judge
found Dr. D. very credible in his testimony that he disagreed with the suspension
of the appellant’s privileges because he did not believe that, based on the
5
A local television station in Indianapolis aired a story on the VANIHCS concerning
patient dissatisfaction with changes being made to their opioid prescriptions without
their knowledge. The story identified the appellant as the responsible physician. IAF,
Tab 12 at 355.
10
appellant’s actions, there was a clear and imminent danger to patient care, as he
understood the Medical Center Bylaws to require. HT at 160-61 (testimony of
Dr. D.). In fact, the Bylaws require only the “potential of imminent harm to the
health and well-being” of patients, IAF, Tab 24 at 238, and the stated reason for
the suspension of the appellant’s privileges was that her actions “potentially
constitute[d] an “imminent threat to patient welfare.”. IAF, Tab 12 at 348.
Moreover, Dr. D. conceded that he was not privy to the OMI investigation that
formed the basis for the COS’s action. HT at 166 (testimony of Dr. D.). That
investigation substantiated that the appellant was inappropriately tapering
veterans from their opioid pain medication without close clinical supervision or
clinical assessment and in violation of Indiana law, adopted as medical center
policy, IAF Tab 12 at 282, and that her actions posed a risk to public health and
safety. Id. at 286. The COS testified that he proposed suspending the appellant’s
privileges out of concern for patient safety, given that many patients on opioids
also have mental health issues, and that he did not want to risk any incidents until
he could confirm that no other patients had had their prescriptions reduced in a
manner that did not comply with state law, adopted as medical center policy. HT
at 237-38 (testimony of COS). The COS also testified that he believed that
further review was necessary to determine whether there had been any ill health
effects to patients from the appellant’s actions. Id. at 239. Under these
circumstances, we find that the administrative judge erred in concluding that the
agency’s evidence in support of suspending the appellant’s privileges was not
strong. In fact, based on the OMI’s report, which, as noted, recommended
appropriate educational, administrative, or disciplinary accountability, IAF,
Tab 12 at 278, as well as the other evidence, we believe that the agency had a
very strong basis for suspending the appellant’s privileges.
The agency does not challenge on review the administrative judge’s finding
as to Carr factor (3)—that the agency did not present any evidence that the
agency takes similar actions against similarly situated employees who are not
11
whistleblowers. ID at 49. It is the agency that bears the burden of proving that it
would have taken the same action in the absence of his protected activity. See
Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 14 (2015). While the
agency does not have an affirmative burden to produce evidence concerning each
and every Carr factor, our reviewing court has held that “the absence of any
evidence relating to Carr factor (3) can effectively remove that factor from the
analysis,” but that the failure to produce such evidence if it exists “may be at the
agency’s peril,” and “may well cause the agency to fail to prove its case overall.”
Whitmore, 680 F.3d at 1374-75. Moreover, because it is the agency’s burden of
proof, when the agency fails to introduce relevant comparator evidence, the third
Carr factor cannot weigh in favor of the agency. Smith v. General Services
Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019); Siler v. Environmental
Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018).
Here, however, the agency did present some slight evidence in the form of
the COS’s testimony that he has recommended the suspension of privileges of
other doctors, including some who he does not believe “could be” whistleblowers.
HT at 271 (testimony of COS). Because this evidence is not strong, however, we
find that the third Carr factor cuts slightly against the agency.
The Board does not view the Carr factors as discrete elements, each of
which the agency must prove by clear and convincing evidence; rather, the Board
will weigh the factors together to determine whether the evidence is clear and
convincing as a whole. Mithen v. Department of Veterans Affairs, 122 M.S.P.R.
489, ¶ 36 (2015), aff’d, 652 F. App’x 971 (Fed. Cir. 2016). Upon review of the
record, we are left with the firm belief that the agency would have suspended the
appellant’s privileges in the absence of her protected disclosures, given the
strength of the evidence in support of the agency’s action balanced against the
evidence of the motive to retaliate against her and the slight evidence favoring the
appellant under Carr factor (3). We find, therefore, that the appellant is not
entitled to corrective action regarding the suspension of her privileges.
12
The appellant failed to show that her retirement was involuntary, and thus, it did
not constitute a personnel action under the whistleblower statutes.
In her cross petition for review, the appellant argues that the administrative
judge erred in finding that she did not establish that her retirement was
involuntary. PFR File, Tab 3 at 23-24. Specifically, the appellant contends that,
contrary to the administrative judge’s finding, she lacked a meaningful choice
because she had to choose between “acceding to illegal and medically dangerous
opioid actions by VANIHCS and resigning (sic).” Id. at 24.
As the administrative judge correctly found, an employee-initiated action
such as a retirement is presumed to be voluntary and thus outside the Board’s
jurisdiction. See Conforto v. Merit Systems Protection Board, 713 F.3d 1111,
1121 (Fed. Cir. 2013), abrogated on other grounds by Perry v. Merit Systems
Protection Board, 137 S. Ct. 1975, 1979 (2017); Searcy v. Department of the
Commerce, 114 M.S.P.R. 281 ¶ 12 (2010); 5 C.F.R. § 752.401(b)(9). Such
actions may be involuntary, however, and tantamount to an adverse action if they
are obtained by coercion, misinformation, or deception. Shoaf v. Department of
Agriculture, 260 F.3d 1336, 1341 (Fed. Cir. 2001); Searcy, 114 M.S.P.R. 281,
¶ 12. An appellant may establish involuntariness by showing that he lacked a
meaningful choice because of the agency’s improper actions. Bean v. U.S. Postal
Service, 120 M.S.P.R. 397, ¶ 11 (2013).
In considering this claim, the administrative judge thoroughly reviewed the
documentary and testimonial evidence in light of the above and other precedential
decisions of the Board and our reviewing court. ID at 36-40. Although he found
the appellant credible, ID at 38-39, he ultimately concluded that she failed to
meet the high legal burden necessary to show that the circumstances were so
intolerable that a reasonable person in her position would have been compelled to
retire. Garcia v. Department of Homeland Security, 437 F.3d 1322, 1329 (Fed.
Cir. 2006) (finding that an employee must satisfy a demanding legal standard in
order to establish that a retirement is involuntary); Heining v. General Services
13
Administration, 68 M.S.P.R. 513, 519-20 (1995) (finding that the totality of the
circumstances must be gauged by an objective standard rather than by the
employee’s purely subjective evaluation). Because the administrative judge
found that the appellant failed to show that her retirement was involuntary, he
found that she did not establish that the action was a personnel action for IRA
purposes. See Comito v. Department of the Army, 90 M.S.P.R. 58, ¶ 13 (2001)
(finding that a separation pursuant to a voluntary resignation is not a personnel
action under 5 U.S.C. § 2302(a)(2)(A) within the Board’s IRA jurisdiction); ID
at 40.
The appellant’s mere disagreement with the administrative judge’s findings
regarding the voluntariness of her retirement does not explain why those findings
are incorrect or otherwise establish error. Yang v. U.S. Postal Service,
115 M.S.P.R. 112, ¶ 12 (2010) (finding that arguments that constitute mere
disagreement with the initial decision do not provide a basis to grant the petition
for review); Broughton v. Department of Health and Human Services ,
33 M.S.P.R. 357, 359 (1987) (finding that there is no reason to disturb the
administrative judge’s conclusions when the initial decision reflects that the
administrative judge considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions). Therefore, the appellant has failed
to show that the administrative judge erred in finding that she did not show that
her retirement was involuntary.
The appellant failed to show that the agency did not establish that it would have
removed her from her position as OSI Co-Champion absent her protected
disclosures.
In her cross petition for review, the appellant also challenges the
administrative judge’s finding that the agency proved by clear and convincing
evidence that it would have removed her from her OSI Facility Co-Champion role
in the absence of her protected disclosures. PFR File, Tab 3 at 22. The appellant
argues that the administrative judge misapplied the standard by essentially
14
“call[ing] a ‘tie,’” and that, in so doing, he did not hold the agency to its high
burden of proof. Id. at 23.
The administrative judge found, based on the appellant’s testimony, that
her OSI Co-Champion duties were removed concurrently with the suspension of
her privileges, HT at 92, 103 (testimony of the appellant); ID at 49, and that,
under the circumstances, the two actions were likely tied together in that the
appellant could not provide guidance on opioid matters while her privileges were
suspended. ID at 50. Acknowledging the dearth of evidence presented specific to
this action, the administrative judge determined that he must consider it within
the context of the evidence as a whole, including the results of the OMI
investigation, the local news story, the appellant’s testimony before the
Administrative Investigative Board, 6 and the Congressional Committee’s inquiry
into the actions taken against her in light of the OMI’s findings. On that basis,
the administrative judge concluded that the agency presented clear and
convincing evidence that it would have removed the appellant as OSI Facility Co-
Champion absent her protected disclosures, pending further investigation. ID
at 50.
As we have stated, the Board does not view the Carr factors as discrete
elements, each of which the agency must prove by clear and convincing evidence;
rather, the Board will weigh the factors together to determine whether the
evidence is clear and convincing as a whole. Mithen, 122 M.S.P.R. 489, ¶ 36.
That is what the administrative judge did here. The appellant acknowledged that,
once the agency suspended her privileges, she could no longer serve as OSI Co-
Champion, and that, as a consequence, the agency removed her from that role.
We have found that the agency had strong evidence in support of its action to
suspend the appellant’s privileges. Because the agency was compelled to then
6
The appellant acknowledged in her sworn testimony that she did not physically engage
in face-to-face meetings with veterans at remote locations regarding the tapering of
opioid prescriptions, but she contended that she did not have time to do so, given the
extent of her responsibilities. IAF, Tab 12 at 199-200.
15
remove the appellant as OSI Co-Champion, it necessarily had strong evidence in
support of that action. Based on the strength of that evidence, and
notwithstanding that the agency had a motive to retaliate and that the record
contains no information regarding whether the agency removed employees from
the role of OSI Co-Champion who were not whistleblowers, 7 we find that the
appellant has not shown that the administrative judge erred in finding that the
agency showed by clear and convincing evidence that it would have removed the
appellant as OSI Co-Champion absent her protected disclosures. 8
The appellant has not challenged on review the administrative judge’s
finding that the agency showed by clear and convincing evidence that it would
have proposed the reprimand based on the appellant’s failure to follow medical
center policy absent her protected disclosures. Because the appellant has not
challenged this finding on review, we do not address it further.
In sum, we find that the agency proved by clear and convincing evidence
that it would have taken all three personnel actions absent the appellant’s
protected disclosures, and that therefore her request for corrective action is
denied.
7
The other OSI Co-Champion who served with the appellant was not a medical doctor,
and there is no evidence to suggest that there were other co-champions prior to the time
the appellant held that role.
8
The appellant also argued that there is no evidence in the record that the agency ever
reinstated her as OSI Co-Champion after it restored her privileges. PFR File, Tab 3
at 23. However, she did not claim below that any such failure on the agency’s part was
a personnel action. IAF, Tab 26 at 6. Therefore we need not consider this matter on
review. McCarthy v. International Boundary and Water Commission, 116 M.S.P.R.
594, ¶ 27 (2011) (finding that an issue is not properly before the Board where it is not
included in the administrative judge’s summary of the prehearing conference, which
stated that no other issues will be considered, where neither party objects to the
exclusion of that issue in the summary), aff’d, 497 F. App’x 4 (Fed. Cir. 2012).
16
NOTICE OF APPEAL RIGHTS 9
This decision constitutes the Board’s final decision in this matter. 5 C.F.R.
§ 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1).
By statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
9
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.
17
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. 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
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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
19
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. 10 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
10
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.
20
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.