Dennis T. Mangano v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DENNIS T. MANGANO, DOCKET NUMBER

Appellant, SF-1221-04-0234-B-9

v.

DEPARTMENT OF VETERANS DATE: October 31, 2014

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Barbara Ann T. Konno, Esquire, Palo Alto, California, for the agency.

Joseph V. Kaplan, Esquire, Washington, D.C., for the appellant.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

Vice Chairman Wagner issues a separate, dissenting opinion.

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

denied the appellant’s request for corrective action in this individual right of

action (IRA) appeal. Generally, we grant petitions such as this one only when:

the initial decision contains erroneous findings of material fact; the initial

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

decision is based on an erroneous interpretation of statute or regulation or the

erroneous application of the law to the facts of the case; the judge’s rulings

during either the course of the appeal or the initial decision were not consistent

with required procedures or involved an abuse of discretion, and the resulting

error affected the outcome of the case; or new and material evidence or legal

argument is available that, despite the petitioner’s due diligence, was not

available when the record closed. See Title 5 of the Code of Federal Regulations,

section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this

appeal, and based on the following points and authorities, we conclude that the

petitioner has not established any basis under section 1201.115 for granting the

petition for review. Therefore, we DENY the petition for review. We MODIFY

the initial decision to address some of the appellant’s arguments related to the

strength of the agency’s motive to retaliate and whether similarly-situated

nonwhistleblowers were treated differently than the appellant. We conclude,

however, that the administrative judge correctly found that the agency proved by

clear and convincing evidence that it would have terminated the appellant based

on the suspension of his faculty appointment in the absence of his whistleblowing

activity. Accordingly, we find that the appellant is not entitled to corrective

action.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant, a part-time Physician, Anesthesia Service, and a chapter 38

employee, was removed from his position based on two charges: (1) failure to

hold an active faculty position with the agency hospital’s affiliate, the University

of California, San Francisco (UCSF) Medical School, 2 which was required to

2

The appellant’s faculty appointment was initially suspended effective June 1, 1999,

and it was based on allegations of harassment and intimidation of colleagues, extensive

and unauthorized use of University resources to financially benefit a non-University

entity, misrepresentations to University officials, and the use of the appellant’s position

and the name of the University to commit fraud against certain corporate research

sponsors. MSPB Docket No. SF-1221-04-0234-W-1, Initial Appeal File (W-1 IAF),

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supervise and manage UCSF residents; and (2) misconduct towards other

employees. W-1 IAF, Tab 5, Subtab 4g. He filed an IRA appeal, claiming that

his May 25, 2001 termination, among other actions, was taken in retaliation for

his 1997 disclosure to the agency’s Medical Center Director that there was

potentially serious animal-to-human-infectious cross-contamination use of

surgical patient-care equipment in animals and re-use in patients. W-1 IAF,

Tab 1, Subtab L. This is the third time that this matter is before the Board. See

Mangano v. Department of Veterans Affairs, 109 M.S.P.R. 658 (2008); see also

Mangano v. Department of Veterans Affairs, 104 M.S.P.R. 316 (2006). In its

most recent remand order, the Board noted that further adjudication was required

on the issue of whether the agency proved by clear and convincing evidence that

it would have terminated the appellant based on the suspension of his faculty

appointment in the absence of his whistleblowing, and it directed the

administrative judge to allow the appellant to develop and present evidence

regarding the strength of the agency’s evidence and the strength of the motive to

retaliate by agency officials. Mangano, 109 M.S.P.R. 658, ¶¶ 46-47. The Board

noted that, if the agency did not prove by clear and convincing evidence that it

would have terminated the appellant for the suspension of his faculty appointment

in the absence of his whistleblowing, the administrative judge may decide the

remaining issues—including whether the agency proved that it would have

terminated the appellant based on the misconduct charge in the absence of his

whistleblowing—in the most efficient manner. Id., ¶ 48.

¶3 After holding a third hearing, see Hearing Transcript (HT) III, the newly

assigned administrative judge issued a 31-page initial decision, concluding that

the agency established by clear and convincing evidence that it would have

Tab 5, Subtab 4x. The suspension was stayed pending an appeal, and the California

trial court and court of appeals affirmed the suspension. See id., Subtabs 4k, 4s. The

appellant began serving the suspension on May 24, 2001, and his termination was

effected the following day. See id., Subtabs 4g-4h.

4

removed the appellant based on the suspension of his faculty appointment in the

absence of his whistleblowing disclosures. MSPB Docket No. SF-1221-04-0234-

B-9, Initial Appeal File (B-9 IAF), Tab 15, Initial Decision (ID). In accordance

with the Board’s remand order, the administrative judge did not address the

misconduct charge, and he denied the appellant’s request for corrective action.

See ID. 3 The appellant, with permission, filed a 59-page petition for review, the

agency filed a response, and the appellant filed a reply brief. Petition for Review

(PFR) File, Tabs 6, 8-9.

¶4 The issue before the Board is whether the administrative judge properly

determined that the agency proved that it would have terminated the appellant

based on the suspension of his faculty appointment in the absence of his

whistleblowing. In making this determination, the Board will consider the

following factors: the strength of the agency’s evidence in support of its action;

the existence and strength of any motive to retaliate on the part of the agency

officials who were involved in the decision; and 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). The administrative judge found that: (1) the

evidence relied upon by the agency to support the charge related to the

suspension of the appellant’s faculty appointment was “very strong”; (2) the

record contained “little or no evidence” that the agency’s decision to terminate

the appellant based on the suspension of the faculty appointment was motivated

by retaliatory animus; and (3) the appellant was not disparately treated compared

to similarly-situated nonwhistleblowers. ID at 11-31. On review, the appellant

3

The administrative judge also noted in the initial decision that the appellant indicated

that he was withdrawing his claim for consequential damages arising from any

previously rescinded agency actions. ID at 8; see HT III at 4; W-1 IAF, Tab 18,

Subtab I (notice of rescission).

5

essentially argues that the administrative judge improperly analyzed these

elements.

¶5 Regarding the strength of the agency’s evidence, we have considered the

appellant’s argument that the administrative judge ignored the Board’s prior

directives when he allowed the agency to present a new case-in-chief on the issue

of whether the suspension of the appellant’s faculty appointment made it

impractical to retain him. PFR File, Tab 6 at 11-14. The administrative judge

rejected this argument below. See B-9 IAF, Tab 10 at 4 n.1 (explaining that the

Board’s remand order set forth that “a full and proper evaluation of whether the

agency has met its burden . . . has never been made,” and, even if this were not

the case, a new and complete review of these questions was necessary because the

case was reassigned to a new administrative judge after remand).

¶6 It is a well-established rule that an administrative judge has broad discretion

to control the proceedings before him. Fritz v. Department of Health & Human

Services, 87 M.S.P.R. 287, ¶ 15 (2000); see 5 C.F.R. § 1201.41. Given the

totality of the circumstances, including the complicated and complex litigation

involved in this matter, the administrative judge’s recent reassignment of this

case, the fact that the agency ultimately bears the burden on the issue of whether

it still would have removed the appellant absent his whistleblowing activity, and

the lack of evidence that the Board intended to prohibit the agency from

presenting on remand, we find no abuse of discretion in this regard.

¶7 The appellant also asks the Board to adopt the rule that the post hoc

rationale offered by the agency is not entitled to consideration. PFR File, Tab 6

at 15-18; see Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 56

(1st Cir. 2000) (“Another method of establishing pretext is to show that

Centennial’s nondiscriminatory reasons were after-the-fact justifications,

provided subsequent to the beginning of legal action.”). He also requests that the

Board adopt and apply the rule that shifting explanations for personnel actions are

unworthy of belief and constitute illegal reprisal for whistleblowing. PFR File,

6

Tab 6 at 19-22; see, e.g., Hudson v. U.S. Postal Service, Appeal No. 0120093843,

2011 WL 2433178, at * 7 (E.E.O.C. June 6, 2011) (“The credibility of an

employer’s explanation can be called into question if it is unduly vague, appears

to be an after-the-fact explanation or appears otherwise fabricated (e.g., the

explanation shifts, or inconsistent reasons are given).”). The appellant asserts

that both of these rules are applied in the context of discrimination claims and

these rules should apply with equal force in the context of whistleblower claims.

PFR File, Tab 6 at 15-22. In response, the agency contends that, by applying a

rule regarding post hoc rationale, the Board would be limiting or prohibiting

testimony or evidence in violation of the U.S. Court of Appeals for the Federal

Circuit’s (Federal Circuit) holding in Whitmore v. Department of Labor, 680 F.3d

1353 (Fed. Cir. 2012). PFR File, Tab 8 at 15.

¶8 We agree with the agency that strictly applying the post hoc rationale rule

would be at odds with the Federal Circuit’s instruction in Whitmore that the

Board must “evaluate all of the pertinent evidence in determining whether an

element or a claim or defense has been proven adequately.” See Whitmore,

680 F.3d at 1368. 4 Moreover, a witness’s changing explanations are already a

factor to be considered by an administrative judge in assessing credibility. See

Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987) (explaining that

an administrative judge may consider a witness’s prior inconsistent statements in

resolving credibility issues).

¶9 We also are not persuaded by the appellant’s argument that the

administrative judge erroneously held that the agency proved by clear and

convincing evidence that it was impractical to retain the appellant after his

faculty appointment was suspended. PFR File, Tab 6 at 22-40. In this regard, the

4

The administrative judge considered and rejected the appellant’s argument that the

Medical Center Director’s post hoc rationale regarding the practicality of retaining the

appellant after his faculty appointment was suspended was unworthy of deference or

credence, ID at 14, and we discern no error with his analysis in this regard.

7

appellant asserts that the administrative judge erroneously found that:

(1) Dr. E.B., who held a locum tenens (or temporary) staff physician appointment,

was supervising residents; (2) it would be impractical to schedule the appellant

for surgeries; and (3) it would be impractical for the appellant to perform duties

other than surgery. Id. He also contends that the administrative judge failed to

consider that: (1) at least 50% of surgeries were performed without residents;

(2) the appellant had limited clinical hours, and thus, he would only need to be

scheduled for surgery less than 1 day per week; (3) surgery was only 40% of the

appellant’s duties of his part-time schedule; (4) Dr. B.C., the appellant’s

supervisor, and the individual against whom the appellant’s whistleblowing

disclosure was made, intentionally misled the Board about how many daily

surgeries were typically scheduled; and (5) Operating Room 7 was available for

the appellant’s surgeries. Id. The appellant also argues that the Board need not

give deference to the administrative judge’s credibility determinations because

they were based on logic, not witness demeanor. Id. at 22-23.

¶10 We disagree with the appellant’s assertion that the administrative judge did

not mention all of the cited evidence. To the contrary, the administrative judge

acknowledged that the appellant was a part-time physician, whose appointment

equated to approximately 30 hours per 2-week period. ID at 2, 20. The

administrative judge also noted the appellant’s testimony that more than half of

his time was spent working as a “researcher/administrative,” that he could

perform other duties, and that there was a seventh operating room in which he

could have worked. The administrative judge also discussed Dr. B.C.’s testimony

regarding how staffing patterns were scheduled. ID at 16-19. It is true that the

administrative judge did not specifically note that at least 50% of surgeries were

performed without residents, nor did he discuss how many daily surgeries were

typically scheduled, or that the appellant, by virtue of his part-time schedule and

his various other duties, would only need to be scheduled for surgery

approximately 1 day per week. We have considered this evidence, see Whitmore,

8

680 F.3d at 1368, but conclude that the administrative judge properly found that

the agency proved by clear and convincing evidence that it was impractical to

retain the appellant once his faculty appointment was suspended, ID at 11-16.

See, e.g., Simmons v. Department of Agriculture, 80 M.S.P.R. 380 ¶ 12 (1998)

(finding that the Board had no authority to order a university to maintain the

appellants in their university appointments, a prerequisite to their federal

appointments).

¶11 As the administrative judge noted in the initial decision, the record supports

a long-standing affiliation between the agency’s medical center and UCSF, and

that, pursuant to this affiliation, anesthesia physicians were jointly recruited and

were required to hold faculty appointments and supervise residents. See, e.g.,

W-1 IAF, Tab 5, Subtabs 4y, 4cc (affiliation agreements); MSPB Docket No.

SF-1221-04-0234-W-4, Initial Appeal File (W-4 IAF), Tab 15, Subtab W (the

appellant’s 1996 proficiency report, which rated him “high satisfactory” in the

category of educational competence, including effectiveness in teaching,

monitoring, and coordinating education activities); HT III at 49 (affiliation

agreement requires faculty members to teach residents), 213 (Chief of Staff

explained that the agency’s medical center and the University of California have a

“very close affiliation,” the affiliation agreement “probably began” in the 1960s,

and that as a result of this affiliation, the agency’s medical center and the

University jointly recruit physicians). The suspension of the appellant’s faculty

appointment rendered him unable to supervise residents, made him unable to

perform one of his duties, and led to his termination. See, e.g., W-1 IAF, Tab 5,

Subtab 4g (decision letter), Subtab 4v (the Chair of the Anesthesiology

Department, upon learning of the suspension of the appellant’s faculty

appointment, stated that “in accord with the affiliation agreement, [the appellant]

should no longer be allowed to participate in patient care teaching or research

activities”), Subtab 4w (the University’s notice to the medical center of the

suspension of the appellant’s faculty appointment stated that it was sharing the

9

information “so that appropriate staffing and other necessary administrative

decisions could be implemented”); see also HT III at 30 (Dr. B.C. testified that

there were no permanent staff anesthesiologists who did not have a faculty

appointment), 213 (Chief of Staff testified that the agency’s medical center

“agree[d] to supervise [the University’s] residents in a way that [the University]

require[s] for their accreditation of programs”), 288 (Medical Center Director

explained that, “[a]s a Staff Anesthesiologist, [the appellant] would need to be

involved in residency, training, supervision, and oversight, and [without his

faculty appointment,] he could no longer function in that capacity”). The record

also reflects the practical difficulty in assigning an anesthesiologist to perform

surgeries when that individual did not have a faculty appointment. See, e.g.,

HT III at 32-33 (Dr. B.C. explained that it would be an “onerous burden” because,

among other things, surgical assignments are revised during the day and it would

be “quite difficult” to prevent a physician without a faculty appointment from

having contact with residents), 226 (Chief of Staff stated that it would be “very,

very awkward to have one anesthesiologist who had to be treated differently from

all the others,” noting that such differential treatment might cause a “morale

problem” and describing how it would be “extremely hard to . . . keep [the

appellant] from having to supervise a resident or be on-call with a resident”).

¶12 The appellant correctly notes that the administrative judge did not make any

explicit demeanor-based credibility determinations. PFR File, Tab 6 at 22-23.

However, the administrative judge heard live testimony and his credibility

determinations must be implicitly based on witness demeanor. See Little v.

Department of Transportation, 112 M.S.P.R. 224, ¶ 4 (2009). The Board must

give deference to an administrative judge’s credibility determinations when they

are based, explicitly or implicitly, on the observation of the demeanor of

witnesses testifying at a hearing; the Board may overturn such determinations

only when it has “sufficiently sound” reasons for doing so. Haebe v. Department

of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) . The appellant has not identified

10

any sufficiently sound reasons for overturning the judge’s credibility

determinations. Moreover, we are not aware of any prohibition on using “logic”

to assist in the resolution of credibility issues. See, e.g., Confer v. Office of

Personnel Management, 111 M.S.P.R. 419, ¶ 17 (2009) (“[W]e do not find that

the appellant’s later statements about her general inability to function are

logically inconsistent with her ability to work as a home health care aide shortly

after her resignation, and these statements do not undermine her credibility.”);

Hillen, 35 M.S.P.R. at 458 (in resolving credibility disputes, an administrative

judge may consider the contradiction of the witness’s version of events by other

evidence or its consistency with other evidence and the inherent improbability of

the witness’s version of events).

¶13 The administrative judge considered the entire record before him as well as

the Board’s instruction in the remand order and he made findings and credibility

determinations based on that record. We discern no error with the administrative

judge’s conclusions regarding the strength of the agency’s evidence. See Crosby

v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to

disturb the administrative judge’s findings when the administrative judge

considered the evidence as a whole, drew appropriate inferences, and made

reasoned conclusions); see also Broughton v. Department of Health & Human

Services, 33 M.S.P.R. 357, 359 (1987) (same).

¶14 Regarding the existence and the strength of the agency’s motive to retaliate,

the Board previously found that Dr. B.C. was “involved” in the agency’s decision

to terminate the appellant, but that his “animosity and bitterness” towards the

appellant does not resolve the issue of whether that animosity was related to the

appellant’s whistleblowing, and remanded this issue for further development of

the record and adjudication. Mangano, 109 M.S.P.R. 658, ¶¶ 32, 34-35, 47. The

administrative judge noted, among other things, that Dr. B.C.’s involvement with

the faculty appointment suspension charge was “vanishingly small,” both

Dr. B.C. and the Medical Center Director testified that they did not speak to each

11

other regarding this charge, and the Medical Center Director said she did not

know the appellant; the administrative judge concluded that there was “little or no

evidence” that the agency’s decision to terminate the appellant for the suspension

of his faculty appointment was motivated by retaliatory animus. ID at 23-30.

¶15 On review, the appellant argues that the administrative judge “ignored” the

law of the case doctrine concerning Dr. B.C.’s involvement and contends that the

administrative judge violated the law when he found that the Medical Center

Director did not have a retaliatory motive. PFR File, Tab 6 at 40-48. Under the

law of the case doctrine, “a decision on an issue of law made at one stage of a

proceeding becomes a binding precedent to be followed in successive stages of

the same litigation.” King v. Department of the Air Force, 119 M.S.P.R. 663,

¶ 30 (2013); see Mangano, 109 M.S.P.R. 658, ¶ 24. The Board’s finding that

Dr. B.C. was “involved” in the agency’s decision to terminate the appellant does

not require a finding that Dr. B.C. had a strong motive to retaliate against the

appellant regarding the suspension of his faculty appointment. Indeed, the Board

stated in its remand order that it was unable to decide the strength of Dr. B.C.’s

motive to retaliate against the appellant for his whistleblowing based on the

existing record. Mangano, 109 M.S.P.R. 658, ¶ 35.

¶16 We discern no error with the administrative judge’s decision regarding the

strength of Dr. B.C.’s motive to retaliate against the appellant concerning the

suspension of his faculty appointment. Notably, there was no proposal notice,

and thus, the Medical Center Director was the “sole” decision-maker on the

termination. ID at 25. Based on the testimonial evidence in the record,

Dr. B.C.’s involvement in the decision to terminate the appellant due to the

suspension of his faculty appointment was at best de minimis, and thus, any

animosity that he held based on the appellant’s whistleblowing disclosure played

little, if any, role in the termination decision. Moreover, the appellant does not

allege on review, and the record does not reflect, that Dr. B.C. caused UCSF to

12

suspend the appellant’s faculty appointment or that UCSF’s suspension of his

faculty appointment was in any way related to his whistleblowing activity.

¶17 We modify the initial decision, however, because the appellant correctly

notes that the Board may find a retaliatory motive if an agency official, such as

the Medical Center Director, knew of the disclosures and the disclosures reflected

poorly on her. PFR File, Tab 6 at 43; see Whitmore, 680 F.3d at 1370-71 (“Those

responsible for the agency’s performance overall may well be motivated to

retaliate even if they are not directly implicated by the disclosures, and even if

they do not know the whistleblower personally, as the criticism reflects on them

in their capacities as managers and employees.”). Here, there is no dispute that

the Medical Center Director was aware of the appellant’s whistleblowing

disclosures, HT III (Medical Center Director) at 353-54, and, if the appellant’s

disclosure was made public, it is likely that such disclosures would reflect poorly

on her.

¶18 The appellant contends that the Medical Center Director’s actions,

including, among other things, refusing to meet with him to discuss his

whistleblowing allegations, barring him from the premises without obtaining

prior written notice, convening an Administrative Investigative Board (AIB) to

look into his alleged misconduct, and expanding the scope of the AIB constitute

strong evidence of retaliatory motive. PFR File, Tab 6 at 46; see, e.g., W-1 IAF,

Tab 5, Subtab 4p (bar notice); W-4 IAF, Tab 15, Subtab K (Medical Center

Director convened an AIB to investigate the April 24, 2000 incident), Subtab L

(clarification of the scope of the AIB). We note that the administrative judge

considered and rejected some of these allegations. See ID at 29-30. We are not

persuaded that the appellant’s allegations warrant a different conclusion regarding

the strength of the Medical Center Director’s motive to retaliate against the

appellant. Indeed, the Medical Center Director testified—credibly in our view—

that she regarded the suspension of the appellant’s faculty appointment as a “clear

cut” issue and that she did not have any discretion or a need for “extensive

13

conversations with the supervisor” to proceed with the appellant’s termination on

this charge. HT III (Medical Center Director) at 298-301, 369-70. Her actions

support this assertion. Indeed, upon learning that the appellant’s faculty

appointment was originally suspended in 1999, and before the incident that

formed the basis for the misconduct charge ever occurred, the Medical Center

Director immediately proceeded to terminate him. See W-1 IAF, Tab 5,

Subtab 4u (May 26, 1999 termination of appointment). 5 As for the other actions

identified by the appellant, one of the Medical Center Director’s duties was to

convene AIBs, HT III (Medical Center Director) at 305-06; indeed, she convened

an AIB to investigate the allegations that the appellant made against Dr. B.C., see

W-4 IAF, Tab 15, Subtab F. Moreover, as a result of an investigation into the

whistleblowing allegations that the appellant made against Dr. B.C., the Medical

Center Director issued a written admonishment or counseling to Dr. B.C. HT III

(Medical Center Director) at 349-51. Based on our review of the record, we

cannot conclude that these actions evince the Medical Center Director’s

retaliatory motive towards the appellant based on his whistleblowing. We

therefore affirm as modified the administrative judge’s analysis of this element,

and we agree that the strength of the agency’s motive to retaliate regarding the

suspension of the appellant’s faculty appointment was not very strong.

¶19 Finally, the appellant challenges the administrative judge’s findings

regarding alleged similarly-situated employees who were not whistleblowers.

PFR File, Tab 6 at 48-53. For instance, the appellant contends that the

administrative judge erroneously found that Drs. U.J. and G.F. were similarly

situated and that the administrative judge also erred when he found that Dr. E.B.

was not similarly situated. Id.; see ID at 30-31 (finding that, in every comparable

situation where a jointly-accredited physician like the appellant lost his faculty

appointment, the physician was notified that he would be terminated).

5

The termination was stayed pending a resolution in the California courts. See supra

n.2.

14

¶20 Regarding Dr. G.F., the appellant claims that the Medical Center Director’s

testimony, that she terminated Dr. G.F. after he lost his faculty appointment,

constituted “surprise and unsupported testimony.” PFR File, Tab 6 at 51; see id.

at 55-56 (the appellant’s affidavit). The appellant contends that the agency never

mentioned Dr. G.F.’s termination in any of its discovery responses, he did not

know Dr. G.F., and he was “totally unaware” that the agency would consider him

as a comparator. Id. at 51 & n.31. To that end, the appellant provides a

statement from Dr. G.F., made under penalty of perjury, which appears to

contradict the Medical Center Director’s testimony. See id. at 57-58.

¶21 Importantly, the appellant did not object to the Medical Center Director’s

testimony regarding Dr. G.F., HT III at 302-03, 336, nor did he seek additional

time to submit rebuttal evidence. Moreover, he did not raise the “surprise” issue

in his closing argument, which he submitted more than 1 month after the hearing.

See B-9 IAF, Tab 14. In fact, the appellant did not raise this issue at any time

prior to the initial decision being issued, nearly 8 months after the hearing; rather,

he only claimed surprise after the administrative judge issued an initial decision

finding Dr. G.F. to be similarly situated.

¶22 The Board has previously held that a rebuttal to “surprise” witness

testimony does not constitute new evidence when the appellant did not request an

extension of time in order to rebut the alleged surprise, and his posthearing brief

did not allude to any surprise. Wakeland v. National Transportation Safety

Board, 6 M.S.P.R. 37, 38-39 (1981). Similarly, we find that the appellant’s

statement from Dr. G.F. does not constitute new evidence. Moreover, evidence

offered merely to impeach a witness’s credibility is not generally considered new

and material. Bucci v. Department of Education, 42 M.S.P.R. 47, 55 (1989). For

these reasons, we do not consider Dr. G.F.’s statement on review.

¶23 The appellant also asserts that, contrary to Dr. B.C.’s testimony, Dr. U.J.

was never advised that he was required to have a faculty appointment in order to

maintain his position, and he refers to Dr. U.J.’s 2005 affidavit, which was in the

15

record below. PFR File, Tab 6 at 49-51. Dr. U.J. averred, in pertinent part, that

he held a faculty appointment from 1995-2001 when he worked as a Staff

Anesthesiologist, he was never advised that he was required to have a faculty

appointment as a condition or requirement of his employment, and he was

unaware of such a requirement. W-4 IAF, Tab 15, Subtab QQQ. The appellant

properly notes that the administrative judge did not discuss this evidence in the

initial decision. We have considered Dr. U.J.’s affidavit. Even if there were an

inconsistency about whether Dr. B.C. told Dr. U.J. that he needed to have a

faculty appointment to keep his position, there is no evidence that Dr. U.J. was

permitted to perform his services as an anesthesiologist at a time when he did not

have a faculty appointment.

¶24 Regarding Dr. E.B., the appellant contends that the administrative judge

incorrectly concluded that Dr. E.B. was mistakenly allowed to supervise

residents, and he focuses on the testimonial evidence purportedly showing that

Dr. E.B. performed surgeries in which he did not supervise residents. PFR File,

Tab 6 at 52-53 (referring to his argument at id. at 23-27). As the administrative

judge correctly noted, Dr. E.B. was hired on a temporary basis because the

agency had a “great clinical need,” and he was not jointly recruited by the agency

and the University. ID at 30-31; see HT III (B.C.) at 23. We therefore agree with

the administrative judge that Dr. E.B. was not similarly situated to the appellant.

¶25 Our reviewing court, in Whitmore, 680 F.3d at 1373, noted that “similarly

situated” does not mean “identically situated” to the whistleblower. In Whitmore,

the court concluded that the two purported comparators, who each had

supervisory positions within the same branch of the same department and

operated within the same chain of command, were similarly situated to

Mr. Whitmore “from an employment position and responsibility perspective.”

Here, however, the temporary nature of Dr. E.B.’s locum tenens appointment,

coupled with the fact that he was hired through a private company, meant that he

did not hold a faculty appointment and he was not subject to the same supervision

16

responsibilities as other physicians, including the appellant, who had held such an

appointment. For these reasons, we conclude that Dr. E.B. was not similarly

situated to the appellant.

¶26 For these reasons, we affirm the initial decision as modified herein.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to

request the United States Court of Appeals for the Federal Circuit to review this

final decision.

The court must receive your request for review no later than 60 calendar

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.

27, 2012). If you choose to file, be very careful to file on time. The court has

held that normally it does not have the authority to waive this statutory deadline

and that filings that do not comply with the deadline must be dismissed. See

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you want to request review of the Board’s decision concerning your

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge

the Board’s disposition of any other claims of prohibited personnel practices, you

may request review of this final decision by the United States Court of Appeals

for the Federal Circuit or any court of appeals of competent jurisdiction. The

court of appeals must receive your petition for review within 60 days after the

date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If

you choose to file, be very careful to file on time. You may choose to request

review of the Board’s decision in the United States Court of Appeals for the

Federal Circuit or any other court of appeals of competent jurisdiction, but not

both. Once you choose to seek review in one court of appeals, you may be

precluded from seeking review in any other court.

17

If you need further information about your right to appeal this decision to

court, you should refer to the federal law that gives you this right. It is found in

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.

Dec. 27, 2012). You may read this law as well as other sections of the United

States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.

Additional information about the United States 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, and 11.

Additional information about other courts of appeals can be found at their

respective websites, which can be accessed through

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

If you are interested in securing pro bono representation for an appeal to

the United States Court of Appeals for the Federal Circuit, you may visit our

website at http://www.mspb.gov/probono for a list of attorneys who have

expressed interest in providing pro bono representation for Merit Systems

Protection Board appellants before the Federal Circuit. The Merit Systems

Protection Board neither endorses the services provided by any attorney nor

warrants that any attorney will accept representation in a given case.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.

DISSENTING OPINION OF ANNE M. WAGNER

in

Dennis T. Mangano v. Department of Veterans Affairs

MSPB Docket No. SF-1221-04-0234-B-9

¶1 I respectfully dissent and would remand this appeal for a determination as

to whether the involvement of agency personnel in the faculty suspension process

at the University of California, San Francisco (UCFS) constituted a personnel

action (i.e., a threat to an appointment) within the meaning of the Whistleblower

Protection Act (WPA) under Mattil v. Department of State, 118 M.S.P.R. 662

(2012), and Dorney v. Department of the Army, 117 M.S.P.R. 480 (2012).

¶2 This is the third time that this individual right of action (IRA) appeal has

been before the Board on petition for review. See Mangano v. Department of

Veterans Affairs, 109 M.S.P.R. 658 (2008); see also Mangano v. Department of

Veterans Affairs, 104 M.S.P.R. 316 (2006). The agency removed the appellant, a

part-time staff physician appointed under Title 38, effective May 25, 2001, after

22 years of service with the San Francisco Veterans Affairs Medical Center, San

Francisco, based on two charges: (1) failure to hold a faculty position with the

agency’s hospital affiliate, UCSF Medical School; and (2) misconduct toward

other employees. Mangano v. Department of Veterans Affairs, MSPB Docket No.

SF-1221-04-0234-W-1, Initial Appeal File (W-1 IAF), Tab 5, Subtab 4g. The

appellant claimed that the agency removed him in retaliation for his

September 1997 disclosures that his supervisor, Dr. B.C., engaged in potentially

dangerous animal-human infectious cross-contamination by using surgical

equipment in animals and re-use in human patients. W-1 IAF, Tab 1, Subtab H at

4, Subtab I at 5. The appellant also alleged that agency officials further retaliated

against him by, inter alia, testifying against him and recruiting other colleagues

to testify against him in the UCSF’s administrative hearing before its Committee

on Privilege and Tenure. Id., Subtab H at 5-6, Subtab I at 7-8.

2

¶3 In the latest remand decision, the administrative judge found that the

appellant established that he made a protected disclosure and that the disclosure

was a contributing factor in his removal. He concluded, however, that the agency

established by clear and convincing evidence that it would have removed the

appellant based on the suspension of his faculty appointment from the UCSF in

the absence of his whistleblowing and, consequently, denied the appellant’s

request for corrective action. MSPB Docket No. SF-1221-14-0234-B-9, Initial

Appeal File, Tab 15, Initial Decision (ID) at 9-31. While finding retaliatory

animus on the part of Dr. B.C. against the appellant, the administrative judge

nevertheless concluded that the agency’s decision to remove the appellant was

unaffected by it because the suspension of his faculty appointment alone justified

the action. ID at 27-30.

¶4 However, in light of evidence of Dr. B.C.’s alleged retaliatory campaign to

“blacklist” the appellant from future employment with the agency, as well as the

involvement of Dr. B.C. and other agency personnel in the UCSF’s suspension

action against the appellant, it cannot be assumed that the suspension was a

completely independent and intervening action unaffected by the retaliatory

animus. See Mattil, 118 M.S.P.R. 662, ¶ 17 (2012) (although “blacklisting” per

se is not an enumerated personnel action under the WPA, broadly construed, it

could constitute a failure to appoint). Thus, under a cat’s paw theory, the

deciding official’s removal decision may well have been tainted by unlawful

retaliatory animus. See Dorney, 117 M.S.P.R. 480, ¶¶ 11-13. I would therefore

remand this appeal for further development of the record as to the agency’s

involvement with the UCSF suspension action.

______________________________

Anne M. Wagner

Vice Chairman