The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JOSEPH G. PRICE, DOCKET NUMBER
Appellant, SF-0752-23-0195-I-1
v.
DEPARTMENT OF VETERANS DATE: October 18, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Joseph G. Price , Tacoma, Washington, pro se.
Jennifer A. Brewer and Burke Josslin , Seattle, Washington, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal for unacceptable conduct. For the reasons discussed below,
we GRANT the appellant’s petition for review. We AFFIRM the initial decision
to the extent that the administrative judge determined that the agency proved the
charge of unacceptable conduct as MODIFIED to correct the misstatement that
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 appellant “waived” his request for a hearing. We VACATE the initial
decision to the extent that the administrative judge found that the appellant did
not raise any affirmative defenses, determined that the agency proved nexus, and
sustained the penalty of removal and REMAND the case to the regional office for
further adjudication of the appellant’s whistleblower reprisal claim in accordance
with this Remand Order.
BACKGROUND
¶2 The appellant was employed by the agency as a GS-5 Nursing Assistant,
assigned to the agency’s American Lake Community Living Center (CLC) in
Takoma, Washington. Initial Appeal File (IAF), Tab 1 at 1, Tab 6 at 9, 11. In
this position, he was responsible for providing direct patient care to veterans at
the CLC. IAF, Tab 6 at 275.
¶3 According to the agency, on September 16, 2021, the appellant “subjected a
[v]eteran patient who has a mental/physical impairment and inability to
adequately provide care for himself to humiliation by lifting his gown in the
common area in the [presence] of other employees . . . and stated ‘you[’re] full of
piss’ . . . instead of following standard protocol.” Id. at 260. After receiving
email complaints from other employees about the incident, the Nurse Manager of
CLC’s Patient Care Services conducted a fact-finding investigation and
recommended that the appellant be removed from the CLC. IAF, Tab 6
at 189-191. Subsequently, an Administrative Investigation Board (AIB)
conducted an investigation and concluded that the appellant had subjected the
patient to humiliating treatment. IAF, Tab 6 at 11-14, 187-88. Based on the
September 16, 2021 incident, the agency removed the appellant effective
January 10, 2023, for unacceptable conduct. IAF, Tab 6 at 271-74, Tab 6 at 8.
¶4 The appellant filed an appeal of his removal with the Board. IAF, Tab 1
at 2. He appeared to initially raise a claim that he was terminated for reporting a
patient safety concern to the agency. IAF, Tab 1 at 6, Tab 9 at 3. On March 28,
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2023, the administrative judge issued an order in which she acknowledged this
potential whistleblower reprisal claim and advised the parties of their respective
burdens regarding such a claim. IAF, Tab 9 at 3-6. She instructed the parties to
respond regarding any whistleblower reprisal claim by May 2, 2023. Id. at 6. On
April 18, 2023, the appellant submitted a pleading titled “Statement,” in which he
asserted that, in conjunction with the incident in question, he reported to the
agency that the patient was being neglected and a lack of concern by those
present. IAF, Tab 15 at 5-6. Notwithstanding this submission, the administrative
judge later concluded that the appellant was not asserting an affirmative defense.
IAF, Tab 27 at 2-3.
¶5 The administrative judge scheduled the appellant’s requested hearing. IAF,
Tab 1 at 2, Tab 27 at 4. She later canceled the hearing as a sanction after the
appellant neither appeared nor showed good cause for his absence. IAF, Tabs 35,
37-38. The administrative judge issued an initial decision affirming the
appellant’s removal on the written record. IAF, Tab 43, Initial Decision (ID)
at 1-2, 11. She determined that the agency proved its charge, nexus, and the
reasonableness of the penalty of removal. ID at 6-10.
¶6 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has responded to the petition for review. PFR File,
Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
We modify the initial decision to clarify the administrative judge’s misstatement
that the appellant waived his request for a hearing.
¶7 The initial decision indicated that the appellant had waived his right to a
hearing. ID at 1. The record reflects that the administrative judge canceled the
hearing after the appellant failed to attend the hearing without good cause. IAF,
Tab 34 at 1, Tab 38 at 1-2. It is well established that an appellant may forfeit the
opportunity to a hearing by failing to attend without good cause. Callahan v.
4
Department of the Navy, 748 F.2d 1556, 1557-59 (Fed. Cir. 1984); Social Security
Administration v. Dantoni, 77 M.S.P.R. 516, 520, aff’d per curiam, 173 F.3d 435
(Fed. Cir. 1998) (Table). In accordance with the Merit Systems Protection Board
Judges Handbook (Judges Handbook), the regional office contacted the appellant,
provided the video connection information, and then waited a reasonable amount
of time for the appellant to join the hearing. IAF, Tab 34; see Judges Handbook,
ch. 4(13)(a). After the appellant did not attend the hearing, the administrative
judge issued a show cause order providing the appellant with an opportunity to
demonstrate good cause for his absence, to which the appellant responded and
cited computer issues. IAF, Tab 34 at 1, Tab 37 at 3; see Judges Handbook,
ch. 4(13)(a). He did not explain why he did not call the regional office to report
his difficulties. IAF, Tab 37. The administrative judge issued a second order
finding that the appellant failed to show good cause, that he had forfeited his right
to a hearing, and that the appeal would be adjudicated on the written record only.
IAF, Tab 38 at 1-2.
¶8 We discern no error in the administrative judge’s finding that the appellant
failed to establish good cause for his failure to attend the hearing, and the parties
have not challenged the cancelation of the hearing on review. Nonetheless, for
purposes of clarity, we modify the initial decision to reflect that the appellant
forfeited, rather than waived, his hearing right.
The administrative judge properly found that the agency met its burden to prove
its unacceptable conduct charge.
¶9 On review, the appellant disagrees with the administrative judge’s decision
not to credit the appellant’s statements denying the alleged misconduct. PFR
File, Tab 1 at 4; ID at 6-8. We affirm the administrative judge’s findings. A
charge of unacceptable conduct has no specific elements of proof; the agency
establishes the charge by proving that the appellant committed the acts alleged
and that the conduct was improper, unsuitable, or detracted from the appellant’s
character or reputation. Canada v. Department of Homeland Security,
5
113 M.S.P.R. 509, ¶ 9 (2010); Miles v. Department of the Army, 55 M.S.P.R. 633,
637 (1992).
¶10 In support of its charge, the agency alleged that, on September 16, 2021, the
appellant humiliated a patient with dementia by lifting his gown in a common
area in the presence of others and told the patient he was “full of piss” or words
to that effect. IAF, Tab 4 at 2. The administrative judge concluded that the
agency proved the specified conduct and that the appellant’s actions were
unacceptable. ID at 6-8. We discern no basis to disturb the administrative
judge’s findings.
¶11 The appellant’s petition disagrees with the administrative judge’s findings
that he engaged in the alleged misconduct by stating that his version of events
should have been credited because, as a veteran, he does not lie. PFR File, Tab 1
at 4. We find this assertion unavailing. When, as here, an administrative judge’s
findings are based on the written record and not based on the observation of
witnesses’ demeanor, the Board is free to reweigh the evidence and substitute its
own judgment on credibility issues. Haebe v. Department of Justice, 288 F.3d
1288, 1298-1302 (Fed. Cir. 2002). However, the appellant provides no
significant reason in his petition for review for the Board to do so. PFR File,
Tab 1 at 4. Ultimately, the initial decision reflects that the administrative judge
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions on the issue of credibility. ID at 6-8; see, e.g., Crosby v.
U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997); Broughton v. Department of
Health and Human Services, 33 M.S.P.R. 357, 359 (1987).
¶12 The administrative judge credited the eyewitness accounts of two nurses
that the patient was sleeping on the evening in question when the appellant
touched the patient, startling him, over the appellant’s statement that the veteran
was wide awake and asked for the appellant’s help, and that the appellant did not
have physical contact with the patient. ID at 6-7. The administrative judge
acknowledged the appellant’s claim that the nurses fabricated their accounts but
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was not persuaded. ID at 7-8; IAF, Tab 1 at 6, Tab 41. In crediting the agency’s
eyewitness accounts, the administrative judge considered and applied the factors
set forth in Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83-84 (1981); ID
at 2, 7-8. In Borninkhof, 5 M.S.P.R. at 83-84, the Board identified factors
affecting the weight to be accorded to hearsay evidence. Most relevant to the
administrative judge’s assessment, these factors include the consistency of
witnesses’ accounts with each other and their own prior statements and whether
the witnesses were disinterested. Id. at 87. Here, the record contains emails,
statements from the fact-finding investigation, and transcripts of interviews from
the AIB investigation, which all support the nurses’ account of the incident. ID
at 6-8; IAF, Tab 6 at 98-101, 123, 126-28, 162, 165 -68, 198-209, 216-18. The
administrative judge observed that, while their accounts were similar, they were
not identical, and they were “consistent with each other in most material aspects”
and consistent with the statements of two nursing assistants who witnessed
portions of the incident. ID at 7. The two nurses described the patient as
sleeping in a wheelchair across from the nurses’ station and stated that the
appellant touched or startled the patient awake, lifted up his gown, and remarked
on how wet he was due to incontinence. ID at 7-8; IAF, Tab 6 at 100, 199,
126-28, 203, 228. In contrast, the appellant alleged that “[t]he patient was awake,
partially dressed, no pants, in a wheelchair, a large puddle of urine under the
patient extending beyond the wheelchair, the patient [was] in an agitated state
yelling for help.” IAF, Tab 6 at 48, 55-59, 77, 194-97, Tab 15 at 4. The
appellant has consistently denied his own misconduct, but his denials are not
corroborated by other witnesses. Thus, the administrative judge properly found
that the nurses’ accounts were more credible than the appellant’s. ID at 7-8.
We remand the appellant’s whistleblower reprisal claim for adjudication.
¶13 On review, the appellant argues that the agency removed him in reprisal for
his disclosures that agency staff violated patient confidentiality and the standard
of patient care. PFR File, Tab 1 at 4. The appellant raised this affirmative
7
defense below. IAF, Tab 1 at 6, Tab 15. However, the administrative judge
stated in her initial decision that the appellant “raised no affirmative defenses.”
ID at 2.
¶14 When an administrative judge has not addressed an affirmative defense, the
Board has set forth a nonexhaustive list of factors to be considered in determining
whether the appellant demonstrated his intent to continue pursuing his affirmative
defense such that remand is necessary. See Thurman v. U.S. Postal Service,
2022 MSPB 21, ¶¶ 17-18, 28. These factors include: (1) the thoroughness and
clarity with which the appellant raised an affirmative defense; (2) the degree to
which the appellant continued to pursue the affirmative defense in the
proceedings below after initially raising it; (3) whether the appellant objected to a
summary of the issues to be decided that failed to include the potential
affirmative defense when specifically afforded an opportunity to object and the
consequences of the failure were made clear; (4) whether the appellant raised the
affirmative defense or the administrative judge’s processing of the affirmative
defense claim in the petition for review; (5) whether the appellant was
represented during the course of the appeal before the administrative judge and on
petition for review, and if not, the level of knowledge of Board proceedings
possessed by the appellant; and (6) the likelihood that the presumptive
abandonment of the affirmative defense was the product of confusion, or
misleading or incorrect information provided by the agency or the Board. Id.,
¶ 18. Applying these factors, we find that remand is necessary for adjudication of
the appellant’s affirmative defense.
¶15 Applying the first factor, we conclude that the appellant clearly raised his
whistleblower reprisal claim. He stated in his initial appeal that the alleged
“incident” on September 16, 2021, which led to his removal, was “fabricat[ed]” in
retaliation for his reports of patient neglect. IAF, Tab 1 at 6; see Melnick v.
Department of Housing and Urban Development, 42 M.S.P.R. 93, 97 (1989)
(finding that pro se appellants are not required to plead the issues with the
8
precision required of an attorney in a judicial proceeding), aff’d, 899 F.2d 1228
(Fed. Cir. 1990) (Table). The administrative judge held a telephonic status
conference, which both parties attended. IAF, Tab 9 at 1. In the March 28, 2023
summary of this conference, the administrative judge indicated that the appellant
“explained that he reported an issue of patient safety to his chain of command and
was terminated in retaliation for reporting the issue.” Id. at 3. She ordered him
to provide specific information regarding his whistleblower reprisal claim. Id.
at 6.
¶16 Further, despite stating in the initial decision that the appellant did not raise
a whistleblower reprisal affirmative defense, the administrative judge recognized
in the initial decision that the appellant alleged that he reported to management
that a nurse fabricated the appellant’s misconduct “in retaliation for the appellant
reporting her for neglecting a . . . patient.” ID at 4. The administrative judge
cited to an email in the record in which the appellant alleged that he reported a
patient in a state of neglect to a supervisor on September 16, 2021, apparently
referring to the same patient incident that led to his removal. Id. (citing IAF, Tab
6 at 223). In sustaining the charge, the administrative judge concluded that “even
if the evening shift should have been more attentive to the patient’s incontinence,
as the appellant argues, this simply deflects from his own degrading interaction
with the patient.” ID at 8. Therefore, we conclude that the appellant clearly
raised his whistleblower reprisal affirmative defense.
¶17 Applying the second factor, the degree to which the appellant continued to
pursue his affirmative defense in the proceedings below after initially raising it,
we note that after raising his claim in his initial appeal, the appellant again raised
it at the March 28, 2023 telephonic status conference. IAF, Tab 1 at 6, Tab 9 at 6.
He also filed a timely response to the administrative judge’s order of the same
date, providing some of the information that she requested in connection with this
defense. IAF, Tab 1 at 6, Tab 9 at 6, Tab 15. Specifically, he responded that he
encountered “a patient in a neglected state and requiring immediate care” and that
9
he reported the condition in which he found the patient to a supervisor and two
nurses that same evening. IAF, Tab 15 at 5-6.
¶18 The third Thurman factor, whether the appellant objected to a summary of
the issues to be decided that failed to include the potential affirmative defense
when specifically afforded an opportunity to object and the consequences of the
failure were made clear, is less favorable to the appellant. On May 5, 2023, the
administrative judge held a prehearing conference. IAF, Tab 27 at 1. She
subsequently issued an order summarizing the issues to be adjudicated. Id. at 5.
In the order, the administrative judge stated that she inquired with the appellant as
to whether he was asserting any claims, other than his disagreement with the
charged misconduct, and he did not identify any. Id. at 2. She provided the
parties with an opportunity to object and warned that if they failed to do so, any
objection “will be deemed waived.” Id. at 7. Neither party objected.
¶19 Applying the fourth factor, whether the appellant raised his affirmative
defense in his petition for review, we find that he did so. PFR File, Tab 1 at 4.
Regarding the fifth factor, we observe that the appellant has been pro se
throughout the Board proceedings, and there is no reason to believe he is
particularly knowledgeable about Board procedures.
¶20 Concerning the sixth factor, the administrative judge and the agency did not
provide misleading or incorrect information. However, the administrative judge’s
determination that the appellant abandoned his whistleblower reprisal claim was
exacerbated by his pro se status and the administrative judge’s failure to
recognize his response to her instructions regarding his affirmative defenses and
to acknowledge that he had previously provided information responsive to the
agency’s discovery. See Thurman, 2022 MSPB 21, ¶¶ 25-26 (recognizing that the
Board has granted leniency to appellants in circumstances in which they
obviously were confused or mistaken about the Board’s instructions, which may
be especially true if the appellant is proceeding pro se). In particular, the record
reflects that the agency and the administrative judge attempted to solicit
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information about the date, substance, and recipients of the appellant’s
disclosures that the appellant had provided on April 18, 2023. Compare IAF,
Tab 9 at 6, Tab 17 at 17, Tab 23 at 2, Tab 24 at 3, Tab 26 at 4-5, with IAF, Tab 15
at 5-6. Further, the administrative judge granted the agency’s motion to compel
discovery in part. IAF, Tab 23 at 1. As relevant here, she ordered the appellant
to respond to the agency’s interrogatory no. 11. Id. at 2-3. In response, the
appellant declined to “make changes or modifications” to his prior answer that he
had “no statement,” expressing his belief that he had “already responded.” IAF,
Tab 17 at 17, Tab 24 at 3, Tab 26 at 5. The record includes responsive statements
and emails by the appellant identifying his reports of alleged neglect of the
patient on September 16, 2023, and thereafter; to whom he made his claims of
neglect; when he made them; and why he believed his reports led to his removal.
IAF, Tab 1 at 6 at 51-55, 65-66, 69, 80, 220, 222-25, 228, 231, 233, Tab 15
at 5-6. 2 Considering all of the factors above, we conclude that this pro se
appellant did not waive or abandon his whistleblower reprisal claim. He clearly
raised and pursued his defense both below and on review, responded to the
administrative judge’s order seeking details concerning his claim, and appears to
have been confused regarding how to preserve his claim. Accordingly, on remand
the administrative judge shall adjudicate this affirmative defense.
¶21 The administrative judge should remind the parties of their burdens and
elements of proof in connection with a whistleblower reprisal claim and provide
them with an opportunity to submit relevant argument and evidence. IAF, Tab 9
at 3-6; see Guzman v. Department of Veterans Affairs , 114 M.S.P.R. 566, ¶¶ 19,
21 (2010). When whistleblower retaliation claims are made in the context of an
2
The agency moved for sanctions for the appellant’s failure to provide information
regarding his affirmative defense. IAF, Tab 26 at 4-5. However, the administrative
judge found that sanctions were not appropriate because the appellant was not asserting
an affirmative defense. IAF, Tab 27 at 2-3. In light of our determination that the
appellant has preserved his whistleblower reprisal claim, the administrative judge
should set a date for the agency to renew its motion for sanctions regarding
interrogatory no. 11, if it so desires. The agency must identify in any such renewed
motion specifically what information the appellant has thus far failed to provide.
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otherwise appealable action, as here, the appellant must prove by preponderant
evidence that he made a protected disclosure or engaged in protected activity and
that the disclosure or activity was a contributing factor in the personnel action at
issue. 5 U.S.C. § 1221(e)(1); Pridgen v. Office of Management and Budget,
2022 MSPB 31, ¶ 49. If the appellant makes this showing, the burden shifts to
the agency to prove by clear and convincing evidence that it would have taken the
personnel action absent the protected disclosure or activity. 5 U.S.C. § 1221(e)
(2); Pridgen, 2022 MSPB 31, ¶ 49.
¶22 The administrative judge concluded in the initial decision that the
appellant’s reports of patient neglect were an attempt to avoid responsibility for
his own misconduct. ID at 9. However, protected whistleblowing occurs when an
appellant makes a disclosure that he reasonably believes evidences a violation of
law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public health and safety.
5 U.S.C. § 2302(b)(8); Pridgen, 2022 MSPB 31, ¶ 52. While motive may be
relevant to the determination of a reasonable belief, a disclosure is not excluded
from protection based on an appellant’s motive in making it. Ayers v. Department
of the Army, 123 M.S.P.R. 11, ¶ 20 (2015). On remand, the administrative judge
should provide the parties with an opportunity to present additional evidence and
argument on the appellant’s whistleblower reprisal claim and make findings as to
that claim under the standards discussed above.
¶23 The parties have not challenged the administrative judge’s determination
that the agency proved that its adverse action promoted the efficiency of the
service and that the penalty of removal was within the tolerable limits of
reasonableness. ID at 9-10. If the appellant does not prevail on his affirmative
defense on remand, the administrative judge may incorporate into the new initial
decision her original findings as to the charge, nexus, and the reasonableness of
the penalty, as appropriate, taking into consideration any new testimony or other
evidence that the parties introduce. See Guzman, 114 M.S.P.R. 566, ¶ 21.
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ORDER
¶24 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.