Grissom v. DVA

Case: 21-2124 Document: 64 Page: 1 Filed: 11/30/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
MARK GRISSOM,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2021-2124
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0714-21-0175-I-1.
______________________
Decided: November 30, 2022
______________________
MARK D. GRISSOM, Maylene, AL, pro se.
MATNEY ELIZABETH ROLFE, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent Department of Veter-
ans Affairs. Also represented by BRIAN M. BOYNTON, TARA
K. HOGAN, PATRICIA M. MCCARTHY.
______________________
Before STOLL, BRYSON, and CUNNINGHAM, Circuit Judges.
Case: 21-2124 Document: 64 Page: 2 Filed: 11/30/2022
2 GRISSOM v. DVA
PER CURIAM.
Mr. Mark D. Grissom worked at the Veterans Affairs
(VA) Medical Center in Tuscaloosa, Alabama, as an Admin-
istrative Officer before the Department of Veterans Affairs
removed him under 38 U.S.C. § 714. Mr. Grissom appealed
that decision to the Merit Systems Protection Board, dis-
puting the charges and asserting that the VA’s removal
was retaliatory. The Board affirmed the VA’s decision. Be-
cause the Board’s decision as to the reasonableness of re-
moval as a penalty is legally erroneous in view of Connor
v. Department of Veterans Affairs, 8 F.4th 1319 (Fed. Cir.
2021), we vacate that portion of the Board’s decision and
remand. We affirm, however, the Board’s determination
that Mr. Grissom failed to prove his affirmative defenses.
BACKGROUND
Mr. Grissom held numerous positions at the VA Medi-
cal Center before becoming an Administrative Officer. He
had a clean disciplinary record with mostly successful per-
formance reviews. Throughout his time at the VA,
Mr. Grissom raised numerous concerns with the VA offi-
cials regarding certain alleged activity at the VA Medical
Center, such as a supervisor not being on-site, doctors
threatening staff, retaliatory actions against him, and
other prohibited personnel practices.
The VA issued its first proposed removal letter to
Mr. Grissom on August 28, 2020, for failure to follow in-
structions, conduct unbecoming of a federal employee, in-
appropriate use of computer and email, and lack of candor.
On October 6, 2020, the VA rescinded its first proposed re-
moval letter and issued a second proposed removal letter,
charging Mr. Grissom with failure to follow instructions.
The notice provided five specifications to support the
charge, each specification based on separate instances in
which Mr. Grissom failed to complete work as directed by
his supervisor. In response, Mr. Grissom asserted that his
supervisor, Dr. Nathan Whitaker, and other officials
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GRISSOM v. DVA 3
engaged in ethical violations, retaliatory conduct, and cor-
ruption. He also demanded the immediate removal of
these individuals and alleged that he had information suf-
ficient to bring a RICO case against VA employees. The
VA’s deciding official in this case, Mr. John Merkle, deter-
mined that “the charge and its specifications . . . are sup-
ported by substantial evidence,” and the VA removed
Mr. Grissom from his position. Appx. 1 28.
Mr. Grissom appealed to the Board, disputing the
charge and arguing that the VA was retaliating against
him for his protected whistleblowing disclosures. The Ad-
ministrative Judge (AJ) determined that Mr. Grissom
made fifteen protected whistleblowing disclosures over the
relevant time frame. The AJ further concluded that, be-
cause Mr. Merkle had notice of Mr. Grissom’s disclosures
before the issuance of the first proposed removal letter, a
reasonable person could conclude that Mr. Grissom’s dis-
closures contributed to the decision to remove Mr. Grissom.
Nevertheless, the AJ affirmed the VA’s decision, conclud-
ing that the VA had shown by clear and convincing evi-
dence that it would have removed Mr. Grissom regardless
of his whistleblowing.
In determining whether the VA would have taken the
same personnel action in the absence of whistleblowing,
the AJ considered the factors set forth in Carr v. Social Se-
curity Administration, 185 F.3d 1318 (Fed. Cir.
1999): “(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 in-
volved in the decision; and (3) any evidence that the agency
takes similar actions against employees who are not
1 Citations to “Appx.” refer to the Appendix attached
to the appellee’s brief.
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4 GRISSOM v. DVA
whistleblowers but who are otherwise similarly situated.”
Appx. 77 (citing Carr, 185 F.3d at 1323).
The AJ found that the first factor weighed heavily in
the VA’s favor because the strength of the evidence that
Mr. Grissom “failed to follow instructions is overwhelm-
ing.” Id. The AJ noted that Mr. Grissom did not dispute
that he failed to perform the assigned tasks and gave what
the AJ found were “less than credible” reasons for not per-
forming the tasks. Id. Next, the AJ found that the second
factor favored the VA because there was little to no moti-
vation to retaliate, because VA officials at the Tuscaloosa
VA were “numb” to Mr. Grissom’s numerous allegations, no
individual VA official was directly implicated in multiple of
these allegations, and there was no indication Mr. Merkle
was angered by or fearful of Mr. Grissom’s whistleblowing.
Appx. 78. The AJ similarly found the third factor favored
the VA because the VA’s action was not inconsistent with
disciplinary actions taken against employees who failed to
follow instructions and were not whistleblowers. Relevant
to this factor, the AJ relied on Mr. Merkle’s undisputed tes-
timony that he had been the deciding official in 15 to 20
disciplinary actions, seven of which were removals, only
one of the removals involved a whistleblower; further, of
the six non-whistleblower removals, three removals in-
volved charges of failure to follow instructions. Viewing
the record as a whole, the AJ found that the VA had met
its burden and sustained the removal charge.
The AJ also considered Mr. Grissom’s defense that he
was removed in retaliation for filing a civil RICO lawsuit.
The AJ first found that a RICO lawsuit is protected activity
under 5 U.S.C. § 2302(b)(9)(A)(ii), as opposed to protected
under whistleblower law. The AJ then determined that un-
der Warren v. Department of the Army, 804 F.2d 654(Fed. Cir. 1986), Mr. Grissom had not demonstrated that
“there was a genuine nexus between the retaliation and the
adverse employment action.” Appx. 81–83. The AJ found
that the first three elements were met. However, the AJ
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GRISSOM v. DVA 5
found that Mr. Grissom “failed to show a genuine nexus be-
tween his removal and his civil RICO lawsuit” because the
deciding official “credibly testified” that he never saw the
first letter or considered it and that he “was one of many
agency officials named, and there was no evidence that Mr.
Merkle was personally impacted by it or fearful of it in any
way.” Appx. 83–84. The AJ sustained the charge.
The AJ went on to analyze the reasonableness of the
penalty in light of certain factors set forth in Douglas
v. Veterans Administration, 5 M.S.P.R. 280 (1981): (1) the
nature and seriousness of the offense, (2) the employee’s
past disciplinary record, (3) the supervisor’s confidence in
the employee’s ability to perform his assigned duties,
(4) the consistency of the penalty with the agency’s table of
penalties, and (5) the consistency of the penalty with those
imposed on other employees for the same or similar of-
fenses. Appx. 85 (citing Douglas, 5 M.S.P.R. at 306, and
Lewis v. Dep’t of Veterans Affs., 113 M.S.P.R. 657, ¶ 5
(2010)).
With respect to the first and third factors, the AJ con-
sidered the testimony of Mr. Merkle and Mr. Grissom’s su-
pervisor that Mr. Grissom’s actions hindered the VA’s
ability to provide safe and efficient care to veterans. The
AJ also noted that Mr. Merkle considered a lesser penalty
than removal but decided against it given the nature of the
misconduct and Mr. Grissom’s repeated failures to follow
instructions. For the second factor, the AJ determined that
Mr. Grissom’s “failure . . . to take any responsibility for his
misconduct” outweighed his mostly clean service record.
Id. For the fourth and fifth factors, the AJ determined that
removal for failure to follow instructions was appropriate
in light of the agency’s decisions in similar cases. The AJ
thus affirmed the VA’s action.
The AJ’s decision became the final decision of the
Board, see 5 C.F.R. § 1201.113, and Mr. Grissom timely
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6 GRISSOM v. DVA
sought review in this court, see 5 U.S.C. § 7703. We have
jurisdiction under 28 U.S.C. § 1295(a)(9).
DISCUSSION
We review the Board’s legal conclusions de novo and its
fact findings for substantial evidence. See Smith v. Gen.
Servs. Admin., 930 F.3d 1359, 1364 (Fed. Cir. 2019). “To
determine whether substantial evidence supports the
Board, we must determine whether ‘considering the record
as a whole, the agency’s evidence is sufficient to be found
by a reasonable factfinder to meet the [agency’s] eviden-
tiary burden.’” Id. at 1367 (quoting Leatherbury v. Dep’t of
the Army, 524 F.3d 1293, 1300 (Fed. Cir. 2008)). An MSPB
decision must be affirmed unless it is found to be “arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; obtained without procedures re-
quired by law, rule, or regulation having been followed; or
unsupported by substantial evidence.” 5 U.S.C. § 7703(c).
On appeal, Mr. Grissom argues that: (1) the Board did
not appropriately assess the Carr factors; (2) the Board
erred in finding that his filing of a RICO lawsuit was not a
protected activity that would preclude his removal; (3) the
Board erred in sustaining the VA’s charge of failure to fol-
low instructions; (4) the Board erred in determining the VA
acted reasonably in removing him; and (5) the AJ allowed
perjury and witness tampering. We address each argu-
ment in turn.
I
We first address Mr. Grissom’s argument that the
Board erred in sustaining the VA’s charge of failure to fol-
low instructions. We review the Board’s decision to sustain
such charges for substantial evidence. See Long v. Soc. Sec.
Admin., 635 F.3d 526, 530 (Fed. Cir. 2011). To prove a
charge of failure to follow an instruction, “an agency must
establish that the employee (1) was given proper instruc-
tions, and (2) failed to follow the instructions.” Boyd
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GRISSOM v. DVA 7
v. Dep’t of Veterans Affs., 740 F. App’x 710, 713 (Fed. Cir.
2018) (citing Hamilton v. U.S. Postal Serv., 71 M.S.P.R.
547, 555–56 (1996)). “Proof of a failure to follow instruc-
tions charge requires the agency to show that an employee
failed to follow a proper instruction . . . .” Smith, 930 F.3d
at 1368 (citing Hamilton, 71 M.S.P.R. at 556).
The VA supported its October 6, 2020, charge of failure
to follow instructions with five specifications that describe
Mr. Grissom’s failure to provide information or complete
work as directed by his supervisor. We address the AJ’s
analysis of each specification in turn.
A
The first specification alleges that on April 2, 2020,
Dr. Whitaker instructed Mr. Grissom to collect infor-
mation relating to the previous Chief of Staff—including
which meetings to attend, what services fell under Spe-
cialty Care, who was in charge of each specific service, what
each service is currently able to deliver, what was the cur-
rent level of staffing for each area, and what preparations
were in place in the event of an influx of patients—but
Mr. Grissom failed to follow this instruction. Appx. 14.
Because it was undisputed that Mr. Grissom did not
complete Dr. Whitaker’s instruction, the AJ considered the
propriety of the instruction. The AJ relied on Dr. Whita-
ker’s testimony that because Dr. Whitaker was newly ap-
pointed, the requested information was important and
urgent. Appx. 49. Dr. Whitaker and Mr. Merkle both tes-
tified that the information should have been readily avail-
able to any administrative officer. Id. The AJ noted that
Mr. Grissom did not dispute that he failed to provide the
requested information. Instead, Mr. Grissom offered that
he was not privy to the prior Chief’s schedule; that he be-
lieved that Dr. Whitaker should have asked his supervisor
for the information; that an official organization chart had
not been approved for years; that the prior Chief told him
not to do any activities related to human resources; that
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8 GRISSOM v. DVA
the turnaround time for the request was unreasonable; and
that Dr. Whitaker’s supervisor would not release the infor-
mation. Appx. 50. The AJ found Mr. Grissom’s testimony
less than credible because it was confusing and because he
had previously made inconsistent statements.
Appx. 50–51.
Although Mr. Grissom offered testimony as to why the
instruction might not have been proper, the AJ found that
testimony not credible. Absent exceptional circumstances,
we do not review the AJ’s findings regarding credibility.
Chambers v. Dep’t of Interior, 515 F.3d 1362, 1370
(Fed. Cir. 2008) (holding the Board’s “credibility determi-
nations are ‘virtually unreviewable’ at this level”) (quoting
Hambsch v. Dep’t of Treasury, 796 F.2d 430, 436 (Fed. Cir.
1986)). In this case, the AJ determined that Mr. Grissom’s
testimony was less than credible. In view of the AJ’s cred-
ibility determination and Mr. Grissom’s admission that he
did not follow these instructions, we determine that sub-
stantial evidence supports the AJ’s finding that Mr. Gris-
som failed to follow a supervisor’s instruction for this first
specification.
B
The second specification alleges that on April 3, 2020,
Dr. Whitaker instructed Mr. Grissom to “clear outstanding
consults for Specialty Care by close of business (COB) on
April 3, 2020, or words to th[at] effect. However, all the
consults were not cleared.” Appx. 14.
In determining that the VA has proven Mr. Grissom
was given a proper instruction and failed to carry out that
instruction, the AJ relied on Dr. Whitaker’s testimony
that: he forwarded the instruction to Mr. Grissom;
Mr. Grissom should have been able to accomplish the task
in time; and there were over thirty outstanding consults
remaining on the Monday after the deadline. Appx. 51–52.
The AJ also relied on Mr. Merkle’s testimony that all of the
administrative officers were asked to complete medical
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GRISSOM v. DVA 9
consults and that the task was necessary to medical pro-
viders. Appx. 52. In addition to noting testimony that the
task was administrative, the AJ noted that Mr. Grissom
had been in the administrative officer position for approxi-
mately three years and, by Mr. Grissom’s description, the
task of clearing consults was administrative. Appx. 52–53.
The AJ considered Mr. Grissom’s explanation—that clear-
ing outstanding consults required medical determinations
that he was not qualified to give—but did not find Mr. Gris-
som’s testimony as credible as the testimony of Dr. Whita-
ker and Mr. Merkle. The AJ also considered evidence that
there appeared to be no formal training or licensure re-
quired to clear the consults. Id.Again here, we do not disturb the AJ’s findings regard-
ing the credibility of the witness’ testimonies. Chambers,
515 F.3d at 1370. In view of the evidence of record, we con-
clude that substantial evidence supports the Board’s find-
ing that Mr. Grissom failed to follow instructions for this
second specification.
C
The third specification alleges that on April 21, 2020,
Dr. Whitaker instructed Mr. Grissom to provide a weekly
report of accomplished tasks while teleworking by 2:00 pm
every Friday but Mr. Grissom failed to follow this instruc-
tion eleven times. Appx. 14.
The AJ noted that Mr. Grissom did not dispute this
specification at the hearing. Appx. 53. Additionally, the
AJ considered Dr. Whitaker’s email containing the instruc-
tions to provide a weekly report, as well as his testimony
that although Mr. Grissom sometimes submitted reports,
he did not provide them for the eleven dates charged in the
specification. Appx. 53–54. The AJ noted that Mr. Gris-
som provided an email dated April 28, 2020, requesting
that Dr. Whitaker approve remote access, but explained
that the existence of the email revealed that Mr. Grissom
had access to his email account and did nothing to explain
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10 GRISSOM v. DVA
why he was unable to provide reports in subsequent weeks.
Id.In view of Dr. Whitaker’s testimony and the evidence
of record, we conclude that substantial evidence supports
the Board’s finding that Mr. Grissom failed to follow in-
structions by not submitting weekly teleworking reports on
the eleven occasions charged in the third specification.
D
The fourth specification alleges that on April 29, 2020,
Dr. Whitaker instructed Mr. Grissom to: (1) order dental
chairs by April 30, 2020, (2) order dental x-rays by May 7,
2020, and (3) order a nail debriding drill by May 12, 2020;
but Mr. Grissom failed to do so. Appx. 15.
In considering the propriety of the instruction, the AJ
relied on Dr. Whitaker’s and Mr. Merkle’s testimony that
administrative officers oversee and manage equipment ac-
quisition for each clinic and Dr. Whitaker’s testimony that
the purchase of the dental chairs had already been ap-
proved. Appx. 54. The AJ also considered an email ex-
change between Dr. Whitaker and Mr. Grissom in which
Mr. Grissom stated he would order the dental chairs that
day and then turn to procuring the “dental radiology unit.”
Id. Mr. Grissom did not dispute that he failed to carry out
the instructions, but argued that the acquisitions were il-
legal; that he needed to perform further research and con-
sultation before obtaining the equipment; that his
necessary certification had expired and he therefore could
not perform any related tasks; that Dr. Whitaker was mis-
led and had unrealistic expectations; that Dr. Whitaker’s
priorities kept shifting; and that he would have been disci-
plined even if the task had been completed on time.
Appx. 54–55. The AJ found Mr. Grissom’s explanations to
be illogical or unsupported. Appx. 55.
In view of Dr. Whitaker and Mr. Merkle’s testimony
and the evidence of record, we conclude that substantial
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GRISSOM v. DVA 11
evidence supports the Board’s finding that Mr. Grissom
failed to follow instructions to procure equipment as
charged in the fourth specification.
E
The fifth specification alleges that on April 30, 2020,
Dr. Whitaker instructed Mr. Grissom to perform the fol-
lowing by May 8, 2020: (1) provide “an updated quote” for
service equipment, (2) provide “an updated checklist” relat-
ing to the service equipment, and (3) enter relevant “infor-
mation into [the] Strategic Equipment Planning Guide,”
but Mr. Grissom failed to follow these instructions.
Appx. 15.
The AJ noted that Mr. Grissom did not dispute that he
failed to complete the assigned tasks charged in the fifth
specification. Appx. 56–57. The AJ additionally consid-
ered Dr. Whitaker’s email to Mr. Grissom containing the
instruction, Dr. Whitaker’s testimony that equipment was
necessary for patients and that administrative officers are
responsible for procuring equipment, and a report from
Dr. Whitaker stating that Mr. Grissom failed to perform
the instruction. Appx. 56. The AJ explained that although
Mr. Grissom asserted that he could not perform the tasks
because he needed further consultation and offered emails
in support of his assertion, some of the emails were not rel-
evant and the others merely showed that Mr. Grissom was
still working on acquiring certain equipment as late as July
30, 2020, several months after the due date. Appx. 57.
In view of the testimony and the evidence of record, we
determine that the AJ’s determination that Mr. Grissom
failed to follow instructions as charged in the fifth specifi-
cation is supported by substantial evidence.
* * *
Substantial evidence therefore supports the Board’s
decision to sustain the VA’s charge of failure to follow in-
structions.
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12 GRISSOM v. DVA
II
We next address Mr. Grissom’s argument that the
Board did not properly assess his whistleblower defense
under the Carr factors. Because substantial evidence sup-
ports the Board’s determination that the VA showed inde-
pendent causation by clear and convincing evidence, we
affirm.
An employee who believes he was subjected to illegal
retaliation must prove by a preponderance of the evidence
that he made a protected disclosure that contributed to the
agency’s action against him. See Smith, 930 F.3d at 1365.
“If the employee establishes this prima facie case of re-
prisal for whistleblowing, the burden of persuasion shifts
to the agency to show by clear and convincing evidence that
it would have taken ‘the same personnel action in the ab-
sence of such disclosure.’” Whitmore v. Dep’t of Lab., 680
F.3d 1353, 1364 (Fed. Cir. 2012) (quoting 5 U.S.C.
§ 1221(e)). The AJ determined that the prima facie case
was made and that shifted the burden to the VA. Appx. 76;
see Appx. 59, 75. Mr. Grissom argues that clear and con-
vincing evidence did not support the AJ’s determination.
Appellant’s Br. 2 19.
In determining whether the VA has met its burden of
showing it would have taken the same action in the ab-
sence of the whistleblowing disclosure, we have instructed
the Board to consider three nonexclusive factors:
[1] the strength of the agency’s evidence in support
of its personnel action; [2] the existence and
strength of any motive to retaliate on the part of
the agency officials who were involved in the deci-
sion; and [3] any evidence that the agency takes
2 “Appellant’s Br. __” refers to pages in Mr. Gris-
som’s informal opening brief as numbered by operation of
an electronic file viewing system.
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GRISSOM v. DVA 13
similar actions against employees who are not
whistleblowers but who are otherwise similarly sit-
uated.
Carr, 185 F.3d at 1323.
Here, the first Carr factor—the strength of the agency’s
evidence in support of its action—requires an analysis of
the strength of the VA’s evidence purporting to show inde-
pendent cause for Mr. Grissom’s removal. Miller v. Dep’t of
Just., 842 F.3d 1252, 1259 (Fed. Cir. 2016). The AJ as-
serted that his decision was based on the “record as a
whole.” Appx. 77. Specifically, the AJ pointed to undis-
puted evidence that Mr. Grissom resisted following in-
structions from his supervisor and refused to recognize his
supervisor as his superior. Id.Mr. Grissom asserts that the Board’s finding “is with-
out merit” because the proceeding was “rushed” and be-
cause the AJ failed to consider evidence he had not been
allowed to present. Appellant’s Br. 21. 3 Mr. Grissom does
not, however, specify what evidence was not allowed. In
fact, the AJ approved two of Mr. Grissom’s witnesses (not
including himself) and his “prehearing exhibits were ad-
mitted without objection.” Appx. 43. Further, Mr. Grissom
does not dispute that he failed to follow instructions, as-
serting instead that “the instructions were illegal,
3 Relatedly, Mr. Grissom “respectfully asks for oral
argument to provide clarifications and new non-record evi-
dence.” Reply Br. 1. As a general matter, appellate courts
review only the record that was before the court or agency
from which an appeal was taken; they do not consider new
evidence presented for the first time after the record is
closed. See Moore U.S.A., Inc. v. Standard Reg. Co., 229
F.3d 1091, 1116 (Fed. Cir. 2000). Mr. Grissom has not
demonstrated why this evidence was not available when
the record closed.
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14 GRISSOM v. DVA
inappropriate, [and] were not possible due to the withhold-
ing [of] the official org[anizational] chart.” Appellant’s
Br. 21. As explained above, the evidence of record supports
the VA’s position, and Mr. Grissom does not point to any
contrary evidence that was not allowed by the AJ. We thus
find that substantial evidence supports the AJ’s finding
that this Carr factor favors the VA. See Smith, 930 F.3d at
1365.
For the second Carr factor—the existence and strength
of any motive to retaliate on the part of the VA officials in-
volved in the decision—the AJ found that Mr. Merkle, the
deciding official, had little or no motive to retaliate against
Mr. Grissom. In reaching this conclusion, the AJ noted
that Mr. Merkle and Dr. Whitaker were not directly impli-
cated in reports regarding radiology staffing issues at the
VA Medical Center; that the Tuscaloosa VA system was not
singled out in the disclosures; that although Mr. Merkle
was the Director of the Tuscaloosa VA, there was no indi-
cation that Mr. Merkle was fearful or angered by Mr. Gris-
som’s whistleblowing; and that Mr. Grissom named so
many VA officials as conspirators that they had become
“numb to it.” Appx. 78. The AJ also addressed the timing
of Mr. Grissom’s protected disclosures, noting that they “all
occurred in response to Dr. Whitaker’s emails documenting
the appellant’s failure to comply with [] instructions.” Id.
In other words, the AJ noted that the protected disclosures
“appear to have been made in response to efforts to docu-
ment the appellant’s conduct rather than vice versa, indi-
cating that the [agency’s] documentation was not
motivated by the disclosures.” Appx. 79.
While the second Carr factor is directed towards exam-
ination of the motives of “agency officials who were in-
volved in the decision” and not the employee, the Carr
factors are not exhaustive and we see no error in the AJ’s
consideration of the timing of Mr. Grissom’s disclosures.
See Carr, 185 F.3d at 1323. Even without this evidence,
however, the record contains sufficient evidence to support
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GRISSOM v. DVA 15
the AJ’s ultimate conclusion that the second Carr factor
weighs in favor of the VA. For example, Mr. Merkle testi-
fied that he had no reason to be concerned about Mr. Gris-
som’s whistleblowing activities, he and other officials were
represented by the U.S. Attorney’s Office, and Mr. Gris-
som’s failure to follow instructions hindered Dr. Whitaker’s
ability to provide safe and efficient care to veterans.
Appx. 83. Accordingly, the AJ’s conclusion that this factor
ultimately favors the VA is supported by substantial evi-
dence.
The AJ found that the third Carr factor—evidence that
the agency takes similar actions against employees who
are not whistleblowers but who are otherwise similarly sit-
uated—weighed in favor of the VA. The deciding official,
Mr. Merkle, testified that of the 15 to 20 disciplinary ac-
tions in which he served as the deciding official, “six remov-
als involved non-whistleblowers and that approximately
half of those involved charges of failure to follow instruc-
tions.” Appx. 79. The AJ found that the only evidence pro-
vided by Mr. Grissom—testimony from a fellow employee
who believed she was retaliated against for whistleblow-
ing—was not relevant to his case, in which the evidence
showed he repeatedly failed to follow instructions.
In this case, the evidence provided by the VA supported
the AJ’s finding that non-whistleblowing employees in
comparable situations, i.e., those who were charged with
failure to follow instructions, were similarly treated. Ac-
cordingly, the AJ’s conclusion that the third factor favors
the VA is also reasonable.
* * *
Substantial evidence thus supports the Board’s conclu-
sion that the VA met its clear and convincing burden of
showing it would have removed Mr. Grissom in the absence
of his whistleblowing disclosures, particularly “[v]iewing
the record as a whole.” Appx. 79. Accordingly, we affirm
the AJ’s determination that the VA demonstrated by clear
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16 GRISSOM v. DVA
and convincing evidence that it would have removed
Mr. Grissom notwithstanding his whistleblowing.
III
We turn next to Mr. Grissom’s argument that the
Board erred in its consideration of his RICO lawsuit de-
fense. Specifically, Mr. Grissom argues that because he
filed a RICO lawsuit against the Tuscaloosa VA, his re-
moval was unlawful. Appellant’s Br. 19.
The AJ found that filing a civil RICO lawsuit is not pro-
tected whistleblowing under the Whistleblower Protection
Enhancement Act but was instead protected under
5 U.S.C. § 2302(b)(9)(A)(ii), “which prohibits retaliation for
the exercise of any appeal, complaint or grievance right
‘other than with regard to remedying a violation of para-
graph (8).’” Appx. 80 (quoting § 2302(b)(9)(A)(ii)). The AJ
then considered whether Mr. Grissom demonstrated by a
preponderance of the evidence that: “(a) he engaged in pro-
tected activity; (b) the accused official knew of the pro-
tected activity; (c) the adverse employment action under
review could, under the circumstances, have been retalia-
tion; and (d) there was a genuine nexus between the retal-
iation and the adverse employment action.” Appx. 81
(citing Warren, 804 F.2d at 656). The AJ found that the
first three elements were met because Mr. Grissom filed a
civil RICO lawsuit; Dr. Whitaker and Mr. Merkle were
aware they were defendants to the lawsuit; and Mr. Gris-
som’s removal could have been retaliation for filing the
lawsuit. Appx. 81–83. Indeed, in the first removal letter,
Dr. Whitaker cited to “statements made by [Mr. Grissom]
concerning a pro se civil lawsuit filed by him against mul-
tiple agency officials alleging violations of the [RICO] Act.”
Appx. 47.
However, the AJ found for the VA on the fourth factor,
which requires a nexus between the retaliation and the ad-
verse employment action. Specifically, the AJ found that
Mr. Grissom “failed to show a genuine nexus between his
Case: 21-2124 Document: 64 Page: 17 Filed: 11/30/2022
GRISSOM v. DVA 17
removal and his civil RICO lawsuit.” Appx. 83–84. In sup-
port of this finding, the AJ cited (1) Mr. Merkle’s testimony
that he neither saw the first removal letter nor considered
it; (2) evidence that Mr. Merkle “was one of many agency
officials named”; and (3) the lack of evidence “that Mr.
Merkle was personally impacted by [the RICO lawsuit] or
fearful of it in any way.” Appx. 84. The AJ also considered
the “severity of [Mr. Grissom]’s misconduct against the in-
tensity of a motive to retaliate against him.” Appx. 83.
We review the Board’s factual findings for substantial
evidence. Smith, 930 F.3d at 1364. Here, the AJ found
that Mr. Grissom had not proved, by a preponderance of
the evidence, that “there was a genuine nexus between the
retaliation and the removal.” Warren, 804 F.2d at 656;
Appx. 83. That finding is supported by substantial evi-
dence, including Mr. Merkle’s testimony and the “severity
of [Mr. Grissom]’s misconduct.” Appx. 83–84. We thus af-
firm the Board’s finding on this issue.
IV
We next consider the Board’s decision that the VA
acted reasonably in removing Mr. Grissom. In determining
the reasonableness of the penalty imposed by the VA, we
have held that the VA and the Board must consider
whether the penalty represents a responsible balance of
the relevant Douglas factors. Douglas, 5 M.S.P.R. at 305–
06; Smith, 930 F.3d at 1369; Connor, 8 F.4th at 1326.
Mr. Grissom argues that the VA erred by failing to consider
the Douglas factors when selecting the penalty of removal.
Reply Br. 4 (citing SAppx. 4 1). We agree.
Mr. Merkle, the deciding officer, testified that he did
not believe he considered the Douglas factors when review-
ing Mr. Grissom’s charges, despite being “familiar with the
4 Citations to “SAppx.” refer to the audio files at-
tached to the appellant’s reply brief.
Case: 21-2124 Document: 64 Page: 18 Filed: 11/30/2022
18 GRISSOM v. DVA
Douglas analysis,” SAppx. 1 at 0:04. Although the AJ
noted that our court had not yet held “that the agency (or
the Board) must consider and apply Douglas factors to ac-
tions under section 714,” Appx. 84, our later decision in
Connor confirmed the VA’s and the Board’s enduring obli-
gations to do so. 8 F.4th at 1326 (explaining that the en-
actment of Ҥ 714 did not alter preexisting law, which
required the VA and the Board to apply the Douglas factors
to the selection and review of penalties in VA disciplinary
actions.”). In other words, “the VA and Board must con-
tinue to apply the relevant Douglas factors in considering
the reasonableness of the penalty.” Id.; see Bryant v. Dep’t
of Veterans Affs., 26 F.4th 1344, 1347 (Fed. Cir. 2022).
That the AJ considered the Douglas factors does not
cure the VA’s failure to do so. The AJ explained that alt-
hough “not required,” he found analysis of “the Douglas fac-
tors[] helpful here” and reviewed the reasonableness of the
VA’s penalty selection with respect to each of those factors.
Appx. 85. We conclude, however, that consistent with our
decision in Connor, the VA has an independent obligation
to consider the Douglas factors. Because the VA failed to
apply the Douglas factors in the first instance and the AJ
misunderstood the VA’s legal obligation to consider the
Douglas factors, the Board’s analysis was legally errone-
ous. We therefore vacate the penalty portion of the Board’s
decision pertaining to the Douglas factors and remand to
the Board to remand to the VA for a redetermination of the
penalty. Connor, 8 F.4th at 1326–27 (remanding to the
Board to remand to the VA); see Bryant, 26 F.4th at 1348
(vacating Board decision’s penalty portion under Connor).
Case: 21-2124 Document: 64 Page: 19 Filed: 11/30/2022
GRISSOM v. DVA 19
CONCLUSION
We have considered Mr. Grissom’s remaining argu-
ments and find them unpersuasive. 5 For the foregoing rea-
sons, we vacate the Board’s decision as to Mr. Grissom’s
underlying removal, affirm the Board’s decision as to
Mr. Grissom’s affirmative defense, and remand for further
proceedings consistent with this opinion.
AFFIRMED-IN-PART, VACATED-IN-PART, AND
REMANDED
COSTS
No costs.
5 We deny Mr. Grissom’s Motion for Sanctions, filed
on October 19, 2022.