The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2015 MSPB 38
Docket No. CH-1221-11-0498-B-1
Francis A. Mithen,
Appellant,
v.
Department of Veterans Affairs,
Agency.
May 28, 2015
Kurt Cummiskey, Esquire, Saint Louis, Missouri, for the appellant.
Paul Petraborg, Esquire, Saint Louis, Missouri, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in a remanded individual right of action
(IRA) appeal. For the following reasons, we GRANT the petition for review,
VACATE the finding on an abandoned claim, REVERSE the finding that the
appellant did not make a protected disclosure, FIND that the agency has proven
by clear and convincing evidence that it would have taken the same action absent
his protected disclosure, and DENY the appellant’s request for corrective action.
2
BACKGROUND
¶2 The appellant is alleging that the agency indefinitely detailed him from the
Program Manager of Neurology position at the Saint Louis Veterans
Administration Medical Center (VAMC) to a Staff Neurologist position in
reprisal for whistleblowing. Mithen v. Department of Veterans Affairs, MSPB
Docket No. CH-1221-11-0498-W-1, Initial Appeal File (IAF), Tabs 1, 7. The
VAMC is affiliated with Saint Louis University (SLU). Hearing Transcript (HT)
at 11. The appellant has been a full-time employee at the VAMC and affiliated
with SLU since July 1, 1983. IAF, Tab 31 at 5. The appellant also had been the
VAMC Residency Program Coordinator, supervising medical residents from SLU
who worked in the Neurology Department. IAF, Tab 1, Attachment 1. In early
September 2010, prior to the appellant’s disclosure, the Chairman of Neurology
and Psychiatry at SLU (SLU Chairman) informed the VAMC that several
residents had complained about the appellant’s conduct. IAF, Tab 12 at 17-19.
On or about September 13, 2010, the agency convened an Administrative
Investigative Board (AIB) to investigate the complaints. Id. at 93-95. During the
AIB investigation, the appellant, at the agency’s direction, abstained from his
collateral duties as the VAMC Residency Program Coordinator for Neurology but
continued as the Program Manager for Neurology. IAF, Tab 31 at 6. The AIB
issued a report on January 24, 2011, which concluded as follows:
(1) communications and interactions between the appellant and some of the
residents were generally poor during the SLU rotations at the VAMC; (2) in some
instances, the appellant had unreasonable expectations of some trainees; (3) poor
customer service was a concern in some instances; and (4) unprofessional conduct
also was a concern. IAF, Tab 12 at 181-83.
¶3 On March 2, 2011, the VAMC Executive Board approved a reorganization
which dissolved Specialty Care, including the Neurology Program. Id. at 187,
191-92. The reorganization created new positions, including the Chief of
Neurology, the Chief of Psychiatry, and the Chief of Anesthesiology, reporting
3
directly to the Chief of Staff. Id. The new Chief of Neurology position
encompassed the appellant’s duties as VAMC Residency Program Coordinator for
Neurology and his duties as Program Manager for Neurology. Id. The new Chief
of Neurology position was going to be advertised for applicants. IAF, Tab 31
at 6-7.
¶4 On March 24, 2011, the VAMC Acting Chief of Staff (Acting Chief) and
Specialty Care Associate Chief of Staff, the appellant’s supervisor, met with the
appellant to discuss the AIB’s recommendations. HT at 110. During this
meeting, the Acting Chief told the appellant that the VAMC would undergo a
reorganization that would include advertising a Chief of Neurology position, for
which the appellant could apply, and that SLU would collaborate with the VAMC
in the selection decision. HT at 115-23, 186-89. The appellant alleges that,
during this meeting, the Acting Chief told him that the SLU Chairman held “veto
power” over the selection of a new Chief of Neurology. IAF, Tab 7 at 2, Exhibit
(Ex.) A. During the meeting, the appellant was told to continue having no
interaction with the residents and medical students. IAF, Tab 33, Subtab O.
¶5 On March 25, 2011, the appellant sent a memorandum entitled “Improper
Influence” to the Human Resources Manager, Acting Chief of Staff, and Director
of the VAMC. IAF, Tab 7, Ex. A. In the memorandum, the appellant asserted
that the SLU Chairman: (1) caused an unsubstantiated investigation of the
appellant; and (2) had “veto power” over the selection for the Chief of Neurology
position at the VAMC. Id. The appellant has alleged that this March 25, 2011
memorandum is his protected whistleblowing disclosure. IAF, Tab 7 at 2.
¶6 On March 28, 2011, the SLU Chairman memorialized a discussion with the
Acting Chief from the previous day informing her that SLU was restricting its
residents’ activities at the VAMC Neurology Department. IAF, Tab 33,
Subtab G. By memorandum dated April 5, 2011, the VAMC Director informed
the appellant that, effective April 6, 2011, he would be detailed to a Staff
Neurology position and relieved of any responsibility related to the Neurology
4
Residency Program. IAF, Tab 1, Attachment 2. After seeking corrective action
through the Office of Special Counsel, the appellant filed this IRA appeal. IAF,
Tab 1.
¶7 The administrative judge found that the Board had jurisdiction over the
appellant’s IRA appeal. IAF, Tab 30 at 3. Following a hearing, the
administrative judge issued an initial decision finding that the appellant failed to
show that he made a protected disclosure. IAF, Tab 37, Initial Decision (ID)
at 5-9. The administrative judge also found that, assuming the appellant had
made a protected disclosure, he met his burden of showing that the disclosure was
a contributing factor in the agency’s actions by satisfying the knowledge/timing
test. ID at 10. The administrative judge found, however, that the agency showed
by clear and convincing evidence that it would have detailed the appellant even
absent the disclosure. ID at 11-14. The appellant filed a petition for review of
this initial decision, which the Board granted. Mithen v. Department of Veterans
Affairs, 119 M.S.P.R. 215, ¶ 1 (2013).
¶8 The Board issued a remand order affirming the initial decision’s finding
concerning contributing factor but stating that the administrative jud ge should
make appropriate credibility determinations in deciding whether the appellant
proved by preponderant evidence that he made a protected disclosure and whether
the agency proved by clear and convincing evidence that it would have detailed
the appellant from his position even absent his disclosure. Id., ¶¶ 23-24. The
remand order also stated that the administrative judge was to apply the guidance
provided by the court in Whitmore v. Department of Labor, 680 F.3d 1353 (Fed.
Cir. 2012), in determining whether the agency proved by clear and convincing
evidence that it would have detailed the appellant from his position in the absence
of the disclosures contained in his March 25, 2011 memorandum.
Mithen, 119 M.S.P.R. 215, ¶¶ 19, 24.
¶9 On remand, the administrative judge gave both parties an opportunity to
file additional briefs addressing the issues identified in the Board’s remand order.
5
Mithen v. Department of Veterans Affairs, MSPB Docket No. CH-1221-11-0498-
B-1, Remand Appeal File (RAF), Tab 9. After receiving both parties’ briefs, the
administrative judge issued an initial decision denying the appellant’s request for
corrective action. RAF, Tab 14, Remand Initial Decision (RID). The
administrative judge found that the appellant failed to show that he reasonably
believed his disclosure evidenced an abuse of authority. RID at 4-16. The
appellant has filed a petition for review arguing that the administrative judge
failed to make the credibility determinations required by the remand order and in
accordance with the Board’s precedent. Mithen v. Department of Veterans
Affairs, MSPB Docket No. CH-1221-11-0498-B-1, Remand Petition for Review
(RPFR) File, Tab 1.
ANALYSIS
¶10 As a preliminary matter, the Board found in its decision on the appellant’s
first petition for review that he had not contested the administrative judge’s
finding that his disclosure concerning the investigation was not a protected
disclosure. Mithen, 119 M.S.P.R. 215, ¶ 14 n.10. The Board did not consider
this issue on review and did not remand this issue to the administrative judge. Id.
We agree with the appellant that this issue was abandoned, RPFR File, Tab 1 at 5,
and we VACATE the initial decision’s findings on this matter.
The administrative judge properly applied the Hillen factors in making the
required credibility determinations.
¶11 On review, the appellant argues that the administrative judge erred in her
credibility determinations. RPFR File, Tab 1 at 6. Specifically, he argues that
the credibility determinations are incomplete because, although the administrative
judge cites to the factors articulated in Hillen v. Department of the
Army, 35 M.S.P.R. 453 (1987), the initial decision does not contain a detailed
explanation as to why she found the agency’s version of events more credible
than the appellant’s. RPFR File, Tab 1 at 6-7. The appellant also argues that
several relevant Hillen factors were not considered. Id. at 11-14. Finally, the
6
appellant argues that, in applying several Hillen factors, the administrative judge
erred in analyzing the relevant evidence. Id. at 15-18.
¶12 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. Haebe v. Department of
Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant appears to argue
that the administrative judge could not properly assess demeanor because the
hearing was held via video conference. RPFR File, Tab 1 at 7. The appellant did
not object to the hearing being held via video conference. Moreover, the
appellant has not identified any problem with the video conference that would
undermine the administrative judge’s ability to assess the witnesses’ demeanor.
See, e.g., Vicente v. Department of the Army, 87 M.S.P.R. 80, ¶ 8 (2000) (the
video conference was interrupted throughout with technical difficulties); Perez v.
Department of the Navy, 86 M.S.P.R. 168, ¶ 7 (2000) (the administrative judge’s
view was primarily of the back of the witnesses’ heads and sometimes a profile
view). In this appeal, the administrative judge appears to have taken particular
care to ensure that she could fully observe each witness as they testified. See,
e.g., HT at 6-7, 65, 68, 110. We find no error in the administrative judge’s citing
to demeanor in her credibility analysis. E.g., ID at 14-15.
¶13 The appellant cites to Frey v. Department of Labor, 359 F.3d 1355 (Fed.
Cir. 2004), for the proposition that a conclusory citation to demeanor as the
deciding factor in a credibility determination should not be granted deference.
RPFR File, Tab 1 at 7. We do not agree with the appellant’s interpretation of the
Frey decision. The court in Frey stated that the evaluation of witness credibility
is a matter within the administrative judge’s discretion and is “virtually
unreviewable.” Frey, 359 F.3d at 1361. Even if we were to apply the appellant’s
interpretation of Frey, there is no indication in the initial decision that the
administrative judge relied on demeanor as the “deciding factor” in making her
credibility determination. The Board has stated that an administrative judge’s
7
credibility determination is not owed deference where the findings are
incomplete, inconsistent with the weight of the evidence, and do not reflect the
record as a whole. Faucher v. Department of the Air Force, 96 M.S.P.R. 203, ¶ 8
(2004). After a thorough review of the record, we find that the administrative
judge’s credibility determinations are complete, consistent with the weight of the
evidence, and supported by the record.
¶14 The appellant argues that the administrative judge’s findings are
incomplete because she failed to consider relevant Hillen factors. RPFR File,
Tab 1 at 6-14. Specifically, the appellant argues that the administrative judge
failed to consider the appellant’s character, the consistency of his version of
events and the record evidence, his opportunity and capacity to observe the event
in question, and the inconsistency of the Acting Chief’s statements about whether
the agency could have handled the recommendations of the AIB differently, why
she consulted with agency counsel, and whether she told the appellant that the
SLU Chairman held “veto power” over the selection for the new Chief of
Neurology. Id. An administrative judge’s failure to mention all of the evidence
of record does not mean that she did not consider it in reaching her decision.
Diggs v. Department of Housing & Urban Development, 114 M.S.P.R. 464, ¶ 8
(2010). Not specifically discussing every evidentiary matter or Hillen factor does
not mean that an administrative judge failed to consider them. See Neff v.
Department of the Treasury, 39 M.S.P.R. 142, 145 (1988), aff’d, 884 F.2d 1398
(Fed. Cir. 1989).
¶15 Both the appellant and the Acting Chief had equal opportunity and capacity
to observe the March 24, 2011 meeting when the Acting Chief allegedly told the
appellant that the SLU Chairman could exercise “veto power” in the selection of
the new Chief of Neurology, so this particular Hillen factor does not suggest that
either version of what occurred during the meeting is more credible than the
other. Similarly, there is no evidence in the record that the character of the
appellant, or any of the witnesses who testified at the hearing, renders that person
8
more prone to testify untruthfully. See Hillen, 35 M.S.P.R at 459. The facts that
the appellant relies on to impeach the Acting Chief’s character, such as the
Acting Chief’s holding the Acting Chief of Staff position when the appellant
made his disclosures, but holding the presumably lower position, Deputy Chief of
Staff, at the time of the hearing, RPFR File, Tab 1 at 12, are not relevant in
assessing her character.
¶16 The appellant argues that his nonselection for the Chief of Neurology
position proves that the SLU Chairman exercised “veto power” in the selection
process, and therefore his version of events is more credible. Id. at 7-9. The
appellant claims that he sought to offer evidence on remand that had not been
available at the prior hearing concerning his nonselection for the Chief of
Neurology position, but the administrative judge concluded that she needed no
further evidence. Id. at 7-8. The record reflects that the parties participated in a
discovery conference call with the administrative judge during which the
appellant’s request for the “promotion package” for the Chief of Neurology
position was discussed. IAF, Tab 7. The administrative judge instructed the
appellant to file a motion for any disputed discovery requests. Id. The appellant
did not file a motion to compel discovery. The record does not contain evidence
about who participated in the selection for the Chief of Neurology position. The
appellant’s nonselection is insufficient evidence to prove that the SLU Chairman
exercised “veto power” during the selection process, and we find it immaterial to
the credibility determination.
¶17 On review, the appellant has cited three statements by the Acting Chief that
he argues show inconsistencies in her testimony. RPFR File, Tab 1 at 13-14. The
first statement comes from the parties’ joint stipulations. The parties jointly
stipulated that the Acting Chief told the appellant during a meeting on March 24,
2011, that, “although she and the Director ‘could have handled the matter
differently,’ there would be no disciplinary action against Appellant as a result of
the AIB investigation.” IAF, Tab 31 at 6. During the hearing, the Acting Chief
9
was asked whether she told the appellant the matter “could” be handled
differently. HT at 109-10. In the same question she also was asked whether she
told the appellant the matter “should” be handled differently. Id. She responded
“that’s something I don’t recall saying—I did not say that.” Id. We find the
Acting Chief’s testimony at the hearing is not inconsistent with the parties’ joint
stipulation because the compound form of the question the Acting Chief was
asked means she could have been answering either of the two questions posed.
¶18 The appellant also alleges that the Acting Chief provided inconsistent
testimony about her reason for consulting with agency counsel. RPFR File, Tab 1
at 13. Having reviewed the two statements cited by the appellant, we find these
statements are not inconsistent. Compare HT at 114, with HT at 143. Based on
our review of the record, we find that the Acting Chief provided consistent
testimony concerning the material facts as found by the administrative judge.
RID at 15.
¶19 Further, the appellant argues that the Acting Chief provided inconsistent
testimony regarding whether she told the appellant that the SLU Chairman had
“veto power” in the selection process. RPFR File, Tab 1 at 13. The appellant
compares the Acting Chief’s testimony that she did not recall referring
specifically to the SLU Chairman during the March 24, 2011 meeting but did
recall discussing the collaborative approach between the VAMC and SLU, HT at
122, to her later testimony that she did not tell the appellant that the SLU
Chairman had “veto power” over the selection decision, HT at 123, and argues
that these statements are inconsistent with each other. Again, we find these
statements are not inconsistent. The implication of the term “veto power” is that
the SLU Chairman could overrule the selection decision made by the agency.
The Acting Chief testified consistently that the VAMC and SLU operated in a
cooperative manner; SLU would provide input into the selection decision, but the
ultimate selection decision would be made by the VAMC. HT at 122-23, 144.
Her testimony was corroborated by several witnesses. HT at 15-17, 48, 84-88.
10
As found by the administrative judge, the Acting Chief’s testimony is also
corroborated by the appellant’s own understanding of the VAMC’s standard
operating procedures for the Residency Program. RID at 12.
¶20 The appellant argues that the administrative judge required him to
demonstrate bias on the part of the Acting Chief on an irrelevant subject and then
faulted him for not proving it. RPFR File, Tab 1 at 15. Specifically, the
administrative judge stated, “the appellant did not show bias on the part of the
Acting Chief in regards to his job performance or qualifications to become the
Chief of Neurology.” RID at 14. We find no error in the administrative judge’s
analysis of bias. Bias refers to a witness’s relationships, influences, and
experiences which might consciously or unconsciously affect her ability to testify
impartially. Hillen, 35 M.S.P.R. at 459-60. The administrative judge did not
require the appellant to show bias on the part of the Acting Chief in any
particular area but appropriately examined circumstances or experiences between
the appellant and the Acting Chief that might have reflected bias. RID at 14-15.
¶21 The appellant argues that the Acting Chief did not dispute the content of
his “Improper Influence” memorandum until the appellant filed his appeal and did
not initiate disciplinary action against the appellant for writing and distributing
the memorandum, which are facts consistent with the appellant’s version of
events. RPFR File, Tab 1 at 9-10. The appellant raised this same argument
before the administrative judge. RAF, Tab 11 at 16; RID at 14. We find these
facts immaterial in determining whether the Acting Chief told the appellant that
the SLU Chairman would exercise “veto power” in the selection of the new Chief
of Neurology.
¶22 We have considered all of the arguments the appellant raised on review
regarding the credibility determinations made by the administrative judge. The
appellant’s assertions constitute mere disagreement with the administrative
judge’s credibility determinations and fact findings. See Diggs, 114 M.S.P.R.
11
464, ¶ 8. We find no basis to disturb the administrative judge’s credibility
determinations.
The appellant has proven by preponderant evidence that he reasonably believed
he was disclosing an abuse of authority.
¶23 Having resolved the credibility issues and determined that the Acting Chief
did not tell the appellant that the SLU Chairman had “veto power” in the
selection decision, the administrative judge concluded that the appellant failed to
prove by preponderant evidence that he made a protected disclosure. RID at 16.
For the following reasons, we REVERSE and find that the appellant reasonably
believed he was disclosing an abuse of authority.
¶24 An individual making a disclosure may be protected from retaliation for
whistleblowing based on his reasonable belief that his disclosure evidenced one
or more of the categories of wrongdoing listed in 5 U.S.C. § 2302(b)(8), even
when his belief is mistaken. See Drake v. Agency for International
Development, 543 F.3d 1377, 1382 (Fed. Cir. 2008). The test for determining
whether an employee’s belief regarding the disclosed matter is reasonable is
whether a disinterested observer with knowledge of the essential facts known to
and readily ascertainable by the employee could reasonably conclude that the
actions of the agency evidence the wrongdoing disclosed. Lachance v.
White, 174 F.3d 1378, 1381 (Fed. Cir. 1999). We agree with the administrative
judge’s finding that the Acting Chief did not explicitly tell the appellant that the
SLU Chairman had “veto power” in the selection decision. 1 However, we find
1
The appellant argues that the administrative judge’s finding that the appellant’s
disclosure was made in anticipation of litigation was “pure speculation” and improper.
RPFR File, Tab 1 at 16. The appellant’s May 25, 2011 memorandum states, in part,
that, if he were not selected for the Chief of Neurology position, he “intend[ed] to file a
complaint with the Merit Systems Protection Board for the demotion from Chief of
Neurology to mere staff neurologist.” IAF, Tab 29, Ex. R. The administrative judge’s
findin g that the memorandum was written in anticipation of litigation is reasonable
considering this language.
12
that the appellant’s belief that the SLU Chairman would have a dispositive role in
the selection was reasonable.
¶25 On March 24, 2011, the Acting Chief and the appellant discussed the AIB
report on residents’ complaints concerning his conduct. HT at 110. Those
complaints were brought to the attention of the VAMC by the SLU Chairman.
IAF, Tab 31 at 6. The appellant was told that, based on the conclusions of the
AIB, the agency would formulate a plan to help the appellant improve his
communication skills and would review a sample of his consult requests to see if
there were any irregularities. HT at 115, 186-87. In that same meeting, the
Acting Chief explained to the appellant that the VAMC was going to undergo a
reorganization that would include abolishing the appellant’s current position,
advertising a new position that would perform many of his current duties, and
that SLU, as the VAMC’s affiliate, would collaborate with the VAMC in the
selection decision. HT at 115-23, 186-89. The discussion of the investigation,
the reorganization, and the selection of the new Chief of Neurology in the same
meeting could reasonably lead to the conclusion that these issues were
interrelated.
¶26 It was reasonable for the appellant to conclude that SLU could veto the
VAMC’s choice for the Chief of Neurology position, as the Director of the
VAMC testified that an affiliate like SLU plays “a significant role” in selections,
and that both the affiliate and the VAMC had to agree on the selectee. HT
at 84-86. It is undisputed that the designation of a Residency Program
Coordinator had to be made with the concurrence of the affiliate. IAF, Tab 1,
Attachment 31-3 at 6. It is also undisputed that the Chief of Neurology position
included the Residency Program Coordinator duties. Id. at 34-38. It seems
reasonable to conclude that the VAMC would not select a Chief of Neurology
without SLU’s concurrence. Although this may not be “veto power” per se, it
could reasonably have been interpreted as the equivalent.
13
¶27 For the purposes of the Whistleblower Protection Act, an abuse of authority
occurs when there is an arbitrary or capricious exercise of power by a federal
official or employee that adversely affects the rights of any person or that results
in personal gain or advantage to himself or to preferred other persons. Linder v.
Department of Justice, 122 M.S.P.R. 14, ¶ 15 (2014). The disclosure that a
nonfederal employee exercised what was the equivalent to “veto power” over the
selection of an individual for a federal position would constitute a protected
disclosure of an abuse of authority. Mithen, 119 M.S.P.R. 215, ¶ 15. Therefore,
we conclude that, although the appellant’s disclosure that the SLU Chairman
would exercise “veto power” in the selection was not true, his belief that SLU
would have a dispositive role in the selection of the Chief of Neurology was
reasonable and therefore he established by preponderant evidence that he made a
protected disclosure of an abuse of authority.
The agency has proven by clear and convincing evidence that it would have
detailed the appellant from his position in the absence of his protected
disclosure. 2
¶28 The Board will order corrective action in an IRA appeal where an appellant
shows by preponderant evidence that he engaged in whistleblowing and that the
whistleblowing was a contributing factor 3 in the decision to take a personnel
2
The administrative judge, having found that the appellant did not make a protected
disclosure, did not determine on remand whether the agency had proven by clear and
convincin g evidence that it would have detailed the appellant absent his protected
disclosure. However, the administrative judge’s first initial decision contains her
analysis of this issue. The appellant has requested that the Board decide whether the
agency met its burden rather than remanding the appeal to the administrative judge for
further adjudication on this issue. RPFR File, Tab 1 at 18-19. We agree that the record
has been sufficiently developed on this issue and that remand is unnecessary. The
appellant requested that the Board consider his arguments from his first petition for
review in rendering our decision. I d.
3
We find no basis to disturb the administrative judge’s determination that the appellant
showed via the knowledge/timing test that his disclosure was a contributing factor in
the decision to detail him. See ID at 10.
14
action unless the agency shows by clear and convincing evidence that it would
have taken the personnel action even absent the whistleblowing. Wadhwa v.
Department of Veterans Affairs, 110 M.S.P.R. 615, ¶ 14, aff’d, 353 F. App’x 435
(Fed. Cir. 2009). Clear and convincing evidence is that measure or degree of
proof that produces in the mind of the trier of fact a firm belief as to the
allegations sought to be established; it is a higher standard than preponderant
evidence. 5 C.F.R. § 1209.4(e). In determining whether the agency has shown
by clear and convincing evidence that it would have taken the same personnel
action in the absence of whistleblowing, the Board considers 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).
¶29 The agency has proven by clear and convincing evidence that it would have
detailed the appellant from his position even absent any protected disclosure.
The Director of the VAMC testified that she made the decision to detail the
appellant when SLU stated that it was going to withdraw its residents from the
VAMC’s Neurology Department. HT at 78-79, 89-90. A Senior Associate Dean
of SLU confirmed that SLU was no longer going to rotate its residents through
the Neurology Department because of problems with the learning environment.
HT at 32-33. He also testified that it was not acceptable to SLU for the appellant
to remain a supervisory medical staff member, nor was it acceptable to SLU for
the appellant to make clinical assignments because of accusations that, in the
past, he had given assignments to residents as punishment or in reprisal. HT at
44. The Acting Chief testified that the decision to detail the appellant was in
response to SLU’s decision to curtail significantly the rotation of residents
through the Neurology Department. HT at 145-46. The record also contains
contemporaneous correspondence between the VAMC and SLU corroborating this
15
testimony. IAF, Tab 12 at 199-201, 210-12. SLU retracted its decision regarding
the changes to the residency program after the appellant was detailed out of his
position. HT at 80. We acknowledge that the testimony concerning the changes
SLU intended to make to the residency program varies from the complete
withdrawal of residents from the program, HT at 78-80, to a significant
curtailment in the residents’ participation in the program, HT at 126, but those
variations are explained by the varying degrees to which each of the witnesses
was involved in the program.
¶30 The appellant argues that he had not been told the reason he was being
detailed from his position until the hearing. Mithen v. Department of Veterans
Affairs, MSPB Docket No. CH-1221-11-0498-W-1, Petition for Review (W-1
PFR) File, Tab 1 at 34-35, 39-40. However, the appellant testified that, when he
was first told about the detail, he asked the Acting Chief why he was being
detailed and she responded that SLU had informed the VAMC that it would
remove all of their residents unless the appellant was removed as the Program
Manager for Neurology. HT at 193. We find that, in the aggregate, this is very
strong evidence that the agency’s motive for detailing the appellant out of his
position was to preserve the existing program with SLU for rotating residents in
the VAMC Neurology Department.
¶31 The appellant argues that the AIB investigation did not identify any
significant conduct or performance issues that would justify detailing him from
his position. W-1 PFR File, Tab 1 at 37. We do not agree. Although the agency
did not discipline the appellant as a result of the AIB investigation, the
investigation noted several concerns that support the agency’s decision to detail
the appellant from his position. Specifically, the investigation concludes that the
appellant had poor communication, not only between himself and the residents,
but also between the neurology staff and other providers, that the appellant had
unreasonable expectations of some trainees in some instances, that poor customer
16
service was a concern in some instances, and that the appellant’s unprofessional
conduct was also a concern. IAF, Tab 33, Attachment D at 8-10.
¶32 The appellant also argues that the agency decided to detail him after
already instructing him to have no interaction with the residents, and therefore
the detail was unnecessary. W-1 PFR File, Tab 1 at 38. This presumes that
SLU’s decision to withdraw the residents was based solely on the appellant’s
direct interaction with the residents. However, the Senior Associate Dean from
SLU testified that there were other concerns about the working environment
being provided for the residents, including the work hours they were being
assigned and fears of retribution. HT at 25. The email from VAMC to SLU at
the time of the appellant’s detail includes an offer that he not only would have no
contact with the residents but would have no involvement with anything related to
the residents in an effort to persuade SLU to retain the residency program as it
existed. IAF, Tab 12 at 199.
¶33 We find that the Acting Chief had little motive to retaliate against the
appellant because SLU’s involvement in the selection identified in the appellant’s
disclosure was already well known and was in fact set out in the agency’s own
procedures. RID at 11-12. The involvement of SLU in the selection was required
by SLU’s accrediting organization and is also stated in the VAMC’s Standard
Operating Procedure for resident supervision. RID at 11-12. The appellant tried
to explain the distinction between a selection requiring SLU’s concurrence, as
described in the agency’s Standard Operating Procedure, and a selection that SLU
could veto, as described in his protected disclosure, HT at 212-13, but we find
this too fine a distinction to create a strong motive to retaliate.
¶34 In contrast, we find that the VAMC’s motive to maintain its affiliation
arrangement with SLU was very strong. The Director of the VAMC testified that
having the affiliation with SLU allowed the VAMC to provide the latest and
greatest care for its patients. HT at 99. She testified that having students and
residents rotate through the VAMC helped the agency to evolve and improve its
17
services and develop its research program. HT at 100. She testified that the loss
of residents would cause temporary delays in care for the patients while the
VAMC recruited physicians to perform the duties that had been performed by the
residents. HT at 102. She also testified about the financial impact on the VAMC
that the loss of the residents would create. HT at 102-03. The Acting Chief
testified that a significant curtailment of the involvement of residents in the
Neurology Department would have had a significant impact on patient care. HT
at 126-27, 150-52. She testified that the mission of the Neurology Department
was “intricately tied” to the residency program. HT at 133.
¶35 The appellant argues that the Acting Chief exaggerated and/or
misrepresented these reasons for detailing him out of his position. W-1 PFR File,
Tab 1 at 38-42. The appellant believes that the agency has exaggerated its
reasons for detailing him because the Acting Chief stated that SLU had a report
from its accrediting organization attributing the creation of a hostile work
environment to the appellant, but the documentation from the accrediting
organization does not reference the appellant or a hostile work environment
specifically. Id. at 38-39. The appellant’s summation of the Acting Chief’s
statement is not accurate. The Acting Chief stated that the accrediting
organization’s report indicated that a hostile work environment existed and that
SLU assessed that this was related to the appellant. IAF, Tab 12 at 213. This is
consistent with the testimony of the Senior Associate Dean that no single
document led to SLU’s conclusion that the appellant was contributing to a hostile
environment for the residents, but the residents’ surveys, the letters from SLU’s
accrediting organization, and the SLU Chairman’s investigation, considered
together, led to that conclusion. HT at 26-31.
¶36 The appellant asserts that the agency’s failure to present evidence about
whether it takes similar actions against employees who are not whistleblowers,
but who are otherwise similarly situated, supports a finding that the agency failed
to prove by clear and convincing evidence that it would have taken the same
18
action against the appellant in the absence of his protected disclosure. W-1 PFR
File, Tab 1 at 42. The Board does not view the Carr factors as discrete elements,
each of which the agency must prove by clear and convincing evidence, but will
weigh the factors together to determine whether the evidence is clear and
convincing as a whole. McCarthy v. International Boundary & Water
Commission, 116 M.S.P.R. 594, ¶ 44 (2011), aff’d, 497 F. App’x 4 (Fed. Cir.
2012), cert. denied, 134 S. Ct. 386 (2013). The Board has found under certain
circumstances that an agency’s failure to present evidence showing it took similar
action against employees who were not whistleblowers, but who were otherwise
similar to an appellant, supports a finding that the agency failed to prove by clear
and convincing evidence that it would have taken the same action against an
appellant in the absence of the protected disclosure. See, e.g., Chambers v.
Department of the Interior, 116 M.S.P.R. 17, ¶ 70 (2011). However, those cases
include other indicia of retaliation not found here. See, e.g., id., ¶ 71. Given the
strength of the agency’s evidence regarding its reason for detailing the appellant
and the very weak motive to retaliate, we find that the lack of evidence
concerning similar employees who are not whistleblowers does not undermine the
agency’s clear and convincing evidence supporting its reason for detailing the
appellant.
¶37 The appellant argues that the agency treated him differently than similar
employees who had not made protected disclosures. W-1 PFR File, Tab 1 at 43.
Specifically, the Residency Program Coordinator duties were added to the Chief
of Neurology position, but were not added to the other Program Manager
positions, so that SLU was required to provide input in the selection of the Chief
of Neurology. Id. The vacancy announcements for these positions corroborate
the appellant’s argument. IAF, Tab 1, Attachment 31-3 at 23-38. However, the
appellant testified that, for years, he simultaneously performed the duties
identified in the vacancy announcement for the Chief of Neurology/Program
Manager of Neurology position and the Residency Coordinator for Neurology.
19
HT at 177, 187-88. He also testified that his predecessor had done the same. Id.
The consolidation of these duties into one position thus formalized what had
already been the practice at the VAMC.
¶38 Although we have found that the appellant made a protected disclosure, for
the reasons discussed above, we find that the agency has proven by clear and
convincing evidence that it would have detailed the appellant from his position
even in the absence of this disclosure. Therefore, the appellant’s request for
corrective action is DENIED.
ORDER
¶39 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit.
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 the United States Court of Appeals for the Federal Circuit or any
court of appeals of competent jurisdiction to review this final decision. The court
20
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.
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 information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
21
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.