Elliott E. Fisher v. Department of Health and Human Services

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ELLIOTT E. FISHER, DOCKET NUMBER

Appellant, DE-0752-12-0268-I-2

v.

DEPARTMENT OF HEALTH AND DATE: June 25, 2015

HUMAN SERVICES,

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Elliott E. Fisher, Apache Junction, Arizona, pro se.

Moira McCarthy, Phoenix, Arizona, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

sustained his removal. Generally, we grant petitions such as this one only when:

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

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

1

A nonprecedential order is one that the Board has determined does not add

sign ificantly 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 Parties may cite nonprecedential orders,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

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 and AFFIRM

the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

¶2 The appellant served as a GS-6 Psychiatric Licensed Practical Nurse (LPN)

at a coed residential treatment center providing Native American youth with

culturally relevant behavioral health treatment for addictive lifestyles including

chemical dependency, as well as various psychiatric and psychological

conditions. Fisher v. Department of Health & Human Services, MSPB Docket

No. DE-0752-12-0268-I-1 (I-1), Initial Appeal File (IAF), Tab 13 at 107. On

January 25, 2012, the agency proposed to suspend him for 14 days based on

charges that he engaged in inappropriate conduct toward adolescent clients and

management officials. Id. at 89-93. Prior to its issuing a decision upholding the

proposed suspension, id. at 64-67, the agency’s Acting Executive Officer notified

the appellant directly and via his union steward that he would be detailed to an

LPN position in another facility within the same commuting area, effective

February 8, 2012, and that his refusal to comply with the detail assignment could

result in his removal from the federal service, id. at 82-84. The Acting

Workforce Relations Division Director also notified the appellant of this detail.

Id. at 81. The appellant challenged its legitimacy and the agency’s authority to

impose it, and he did not report.

3

¶3 As a result, the Chief Nursing Officer at the facility to which the appellant

had been detailed proposed his removal for: (1) failure to comply with

instructions to report to a detail; (2) failure to comply with leave-requesting

procedures; and (3) absence without leave (AWOL) from February 8-23, 2012.

Id. at 59-63. In proposing the action, the Chief Nursing Officer considered that

the appellant had recently been issued a decision letter suspending him for 14

days. Id. In response, the appellant argued that the detail was in reprisal for his

whistleblowing; that is, for his having disclosed to the Chief Executive Officer

that his immediate supervisor failed to assess a suicidal client in 2009. Id. at 54.

The deciding official found that the charges were sustained, warranting the

appellant’s removal to promote the efficiency of the service. Id. at 27.

¶4 On appeal, the appellant again challenged the detail and argued that it and

his removal were in reprisal for his whistleblowing activity. 2 Id., Tab 1. He

requested a hearing. 3 Id. at 2. Thereafter, the administrative judge issued an

2

The appellant subsequently filed an individual right of action (IRA) appeal in which

he alleged that the agency had taken action against him in reprisal for h is protected

whistleblowing activity. The admin istrative judge d ismissed that appeal as untimely

filed, Fisher v. Department of Health & Human Services, MSPB Docket No. DE-1221-

13-0094-W-1, Initial Decision at 1, 6 (Mar. 25, 2013), and the initial decision became

the Board’s final decision on April 29, 2013, when neither party filed a petition for

review. The appellant also filed a second IRA appeal in which he alleged that, based on

the same protected disclosure at issue in the instant appeal, the agency, including its

Office of Inspector General, took other actions against him. The administrative judge

dismissed that appeal for lack of jurisdiction, Fisher v. Department of Health & Human

Services, MSPB Docket No. DE-1221-13-0778-W-1, Initial Decision at 1, 8 (May 8,

2014), and the Board denied the appellant’s petition for review of that decision, Fisher

v. Department of Health & Human Services, MSPB Docket No. DE-1221-13-0778-W-1,

Final Order at 2 (Dec. 12, 2014).

3

The administrative judge denied the appellant’s request that his removal be stayed

based on his claim that it was in reprisal for his whistleblowing. Fisher v. Department

of Health & Human Services, MSPB Docket No. SE-0752-12-0268-S-1, Order Denying

Stay Request at 1, 5 (Apr. 19, 2012). During adjudication, the administrative judge also

denied the appellant’s request for a protective order on behalf of four of h is coworkers,

alleging harassment by the agency. Fisher v. Department of Health & Human Services,

MSPB Docket No. DE-0752-12-0268-D-1, Order Denying Request for Protective Order

at 2 (Aug. 3, 2012).

4

initial decision affirming the agency’s action. 4 Fisher v. Department of Health &

Human Services, MSPB Docket No. DE-0752-12-0269-I-2 (I-2), IAF, Tab 9,

Initial Decision (ID) at 2, 27. She first found that charge (1), failure to follow

instructions to report to a detail, was sustained. ID at 10-12. She next found that

charge (2), failure to follow leave-requesting procedures, must be merged into

charge (3), AWOL, because both charges were based on the same days of absence

and the same set of facts. ID at 8; see McNab v. Department of the Army,

121 M.S.P.R. 661, ¶ 4 n.3 (2014) (citing Westmoreland v. Department of Veterans

Affairs, 83 M.S.P.R. 625, ¶ 6 (1999), aff’d, 19 F. App’x 868 (Fed. Cir 2001),

overruled on other grounds as recognized in Pickett v. Department of

Agriculture, 116 M.S.P.R. 439, ¶ 11 (2011)). The administrative judge then

found charge (3), AWOL, sustained. ID at 12-14. She next considered, but found

unsupported, the appellant’s affirmative defense of reprisal for whistleblowing.

ID at 16-23. Finally the administrative judge found that there was a nexus

between the sustained charge and the efficiency of the service. ID at 23-24, and

that removal was a reasonable penalty. ID at 24-26.

¶5 The appellant has filed a petition for review, I-2, Petition for Review (PFR)

File, Tab 1, the agency has filed a response, id., Tab 3, and the appellant has

replied thereto, id., Tab 4.

4

The administrative judge had previously d ismissed the appeal without prejudice,

pending the Board’s ruling on the issue of the retroactivity of the Whistleblower

Protection Enhancement Act of 2012 (WPEA). Fisher v. Department of Health &

Human Services, MSPB Docket No. DE-0752-12-0269-I-1, Initial Decision I-1 at 1, 3

(Jan. 3, 2013). The appeal was refiled sua sponte following the admin istrative judge’s

determination that the appellant’s protected activities and the allegedly retaliatory

personnel action occurred prior to the effective date of the WPEA. Fisher v.

Department of Health & Human Services, MSPB Docket No. DE-0752-12-0269-I-2,

IAF, Tab 9, Initial Decision at 14; see King v. Department of the Air Force,

119 M.S.P.R. 663, ¶¶ 17-18 (2013 (finding that the damages provisions of the WPEA

did not apply where the appellant’s protected disclosures and the agency’s retaliatory

personnel actions took place before the effective date of the WPEA).

5

¶6 The appellant first challenges the administrative judge’s finding sustaining

charge (1), failure to comply with directions to report to detail. Citing 5 U.S.C.

§ 3341(a), the administrative judge found that the agency had the discretion to

detail the appellant to another position without a loss of grade or pay. ID at 11.

The appellant argues, however, as he did below, that his situation falls under the

exception provided for at § 3341(a); that is, where employees are required by law

to be exclusively engaged on some specific work. Specifically, the appellant

argues that, because he was a Psychiatric LPN, the agency did not have the

discretion to detail him to a general LPN position. PFR File, Tab 1 at 2-3. In

support, he has submitted a one-page assessment form that he purportedly

received “upon hire” setting forth the knowledge, skills, and abilities necessary

for a Psychiatric LPN, which include providing care for mentally ill patients. Id.

at 27. Because this document was not a part of the record below, the Board will

not consider it because the appellant has not shown that it was unavailable prior

to the close of the record below despite his due diligence. 5 Avansino v. U.S.

Postal Service, 3 M.S.P.R. 211, 214 (1980). In any event, the appellant has failed

to demonstrate error in the administrative judge’s finding that there is no

evidence that the appellant’s position was the type of position Congress intended

to except from detail, i.e., a position “required by law” to be exclusively engaged

on some specific work. To the extent that the appellant challenges the agency’s

basis for the detail, the administrative judge correctly found that the Board lacks

jurisdiction to review an agency’s decision to detail an employee where, as here,

there is no reduction in pay. ID at 11; see Bowen v. Department of Justice,

38 M.S.P.R. 332, 334 (1988). In sum, the appellant has not shown error in the

administrative judge’s finding that the agency proved charge (1), failure to

5

We reject the appellant’s argument that it was the administrative judge’s responsibility

to subpoena this document. If the appellant thought the assessment form was relevant

to his claim, he should have submitted it below.

6

comply with directions to report to detail, because the agency properly made the

order and the appellant, by his own admission, failed to comply.

¶7 Notwithstanding the appellant’s claim that “[t]his is not a case about

AWOL,” PFR File, Tab 4 at 5, the agency charged him with AWOL and the

administrative judge found that the agency proved that he was AWOL from

February 8 to February 23, 2012, because he was scheduled to work, did not

report to duty, and did not request leave, ID at 12-14; see Rojas v. U.S. Postal

Service, 74 M.S.P.R. 544, 548 (1997), aff’d, 152 F.3d 940 (Fed. Cir. 1998)

(Table). We see no basis upon which to reweigh the evidence or substitute our

assessment of the record evidence for that of the administrative judge as to her

well-reasoned findings in this matter. Crosby v. U.S. Postal Service, 74 M.S.P.R.

98, 105-06 (1997).

¶8 As to the appellant’s claim of retaliation for whistleblowing, the

administrative judge found that the appellant did make a protected disclosure

regarding his immediate supervisor’s failure to assess a suicidal patient in 2009.

The administrative judge found that the appellant made the disclosure in

November 2011 when he filed a complaint regarding the incident with the

licensing Board of Psychology, 6 and not on October 12, 2011, as he urged. ID at

16-21. The administrative judge further found, based on the knowledge and

timing test, specifically, the appellant’s written statement in reply to the proposed

removal, that she established that the November 2011 disclosure was a

contributing factor to the removal action, ID at 21-22, but that the agency showed

by clear and convincing evidence that it would have removed the appellant even

absent his protected disclosure, ID at 22-23.

¶9 On review, the appellant argues, as he did below, that he first disclosed the

matter regarding his immediate supervisor’s alleged improprieties at a meeting on

October 12, 2011. PFR File, Tab 1 at 7-9. In finding that he did not, the

6

After a hearing at which the appellant’s testified, the licensing Board dismissed the

complaint. Hearing Transcript at 234, 257, 294.

7

administrative judge made credibility determinations, applying the factors set

forth by the Board in Hillen v. Department of the Army, 35 M.S.P.R. 453, 458

(1987) (to resolve credibility issues, an administrative judge must identify the

factual questions in dispute, summarize the evidence on each disputed question,

state which version he believes, and explain in detail why he found the chosen

version more credible, considering such factors as: (1) the witness’s opportunity

and capacity to observe the event or act in question; (2) the witness’s character;

(3) any prior inconsistent statement by the witness; (4) a witness’s bias, or lack of

bias; (5) the contradiction of the witness’s version of events by other evidence or

its consistency with other evidence; (6) the inherent improbability of the

witness’s version of events; and (7) the witness’s demeanor). ID at 16-20. The

administrative judge concluded that the Medical Director’s testimony was “the

most reliable” regarding what transpired at the October 12, 2011 meeting and that

the appellant did not make any disclosure of wrongdoing by his immediate

supervisor at that time, 2 years earlier. In reaching that conclusion, the

administrative judge specifically considered the professional, calm, and

straightforward manner in which the Medical Director testified. ID at 18.

Although the appellant disputes the administrative judge’s credibility

determinations, PFR File, Tab 1 at 9-10, we discern no reason to reweigh the

evidence or substitute our assessment of the record evidence for that of the

administrative judge, Crosby, 74 M.S.P.R. at 105-06; Broughton v. Department of

Health & Human Services, 33 M.S.P.R. 357, 359 (1987); see Haebe v.

Department of Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002) (the Board may

overturn credibility determinations only when it has “sufficiently sound” reasons

for doing so).

¶10 In any event, as noted, the administrative judge found that the appellant did

make a protected disclosure, albeit in November 2011, that was a contributing

factor to his removal, but that the agency proved by clear and convincing

evidence that it would have removed him, even absent that disclosure. ID at

8

19-23. In so finding, the administrative judge considered the factors set out by

our reviewing court in Carr v. Social Security Administration, 185 F.3d 1318,

1323 (Fed. Cir. 1999), specifically: (1) the strength of the agency’s evidence in

support of its action; (2) the existence and strength of any motive to retaliate on

the part of the agency officials who were involved in the decision; and (3) any

evidence that the agency takes similar actions against employees who are not

whistleblowers but who are otherwise similarly situated. She found that the

agency’s evidence in support of removal was strong, that there was no evidence

of any retaliatory motive on the part of the agency officials who were involved in

the decision to remove, or of any other similarly situated employees, and that,

based on the strength of the evidence supporting the agency’s decision and the

weakness of the evidence supporting a retaliatory motive, she was left with a firm

belief that the agency would have taken the action in the absence of the

disclosure. 7 ID at 22-23.

¶11 In finding the penalty of removal reasonable in this case, the administrative

judge noted that the deciding official considered the appellant’s past record

consisting of the prior 14-day suspension for unrelated conduct, specifically,

inappropriate conduct toward adolescent clients and management officials. ID at

25. On review, the appellant challenges the merits of that charge and argues that,

as to it, the administrative judge failed to make any credibility determinations,

PFR File, Tab 1 at 11-14, or consider the factors set forth in Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 305-06 (1981), PFR File, Tab 4 at 5. The

administrative judge correctly found, however, that the Board’s review of a prior

disciplinary action is limited to determining whether that action is clearly

erroneous, if the employee was informed of the action in writing, the action is a

matter of record, and the employee was permitted to dispute the charges before a

7

To the extent that the appellant challenges these findings, he does so in the context of

what he describes as new and material evidence, a matter we discuss elsewhere in th is

decision.

9

higher level of authority than the one that imposed the discipline. Bolling v.

Department of the Air Force, 9 M.S.P.R. 335, 339-40 (1981). Finding that the

14-day suspension in this case met the Bolling criteria, the administrative judge

properly found that it was not clearly erroneous. ID at 5 n.3. The appellant has

not shown that any further analysis of the 14-day suspension was required under

law, regulation, or Board case law.

¶12 In addition to the appellant’s past record, the administrative judge found

that the deciding official also considered, as aggravating factors, the fact that the

appellant’s conduct was serious, repeated, and intentional, that it was inconsistent

with the agency’s mission, that she had lost confidence in him, that his conduct

had an adverse impact on the agency’s operation, that his 3-year tenure with the

agency was relatively short, and that he had not established his claim of disparate

penalties. ID at 25-26. Given that the charges were sustained, we agree with the

administrative judge that, in imposing removal in this case, the agency considered

all the relevant factors and exercised management discretion with the tolerable

limits of reasonableness. See Woebcke v. Department of Homeland Security,

114 M.S.P.R. 100, ¶ 7 (2010).

¶13 On review, the appellant argues that the administrative judge made a

number of adjudicatory errors. For example, he argues that the delay in

processing the appeal from hearing to issuance of the initial decision adversely

affected the administrative judge’s memory. PFR File, Tab 1 at 1-2, 26. Given

that the administrative judge had access to all of the record evidence as well as

the hearing transcript, we find that the appellant has not shown that any delay

constituted an adjudicatory error that prejudiced his substantive rights. Panter v.

Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).

¶14 The appellant also argues that the administrative judge’s witness rulings

adversely affected the outcome of the case. PFR File, Tab 1 at 3. Specifically,

the appellant contends that unnamed individuals in the “nursing department” and

“many others” would have supported his protected disclosure. Id. The record

10

reflects that the appellant requested six witnesses, I-1, IAF, Tab 32 at 8, and that

the administrative judge approved four of them, 8 Id., Tab 37 (compact disc of the

prehearing conference). In summarizing the prehearing conference, the

administrative judge stated that she had approved several witnesses for the

appellant “over the agency’s objection” given that he had not provided the Board

or the agency with a statement of their expected testimony. Id. (written summary

of the prehearing conference). The administrative judge did not indicate that the

appellant objected to her ruling denying two of the six witnesses he requested,

and the record does not otherwise reflect that he objected below to that ruling.

His failure to do so then precludes his doing so now on review. Tarpley v. U.S.

Postal Service, 37 M.S.P.R. 579, 581 (1988).

¶15 The appellant also argues that the administrative judge ignored the

testimony of those of his witnesses that she did allow, specifically, J.Z. PFR File,

Tab 1 at 4. The appellant refers to testimony by J.Z. that appears to support the

appellant’s claim that he made a protected disclosure in October 2011,

notwithstanding the administrative judge’s finding that the protected disclosure

occurred in November 2011. Id. First, the 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. Marques v. Department of Health & Human Services,

22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).

Second, because the dispositive issue in this case turned on the agency’s showing

that it would have removed the appellant, even absent his protected disclosure, he

has not shown any prejudice to his substantive rights concerning this issue.

Panter, 22 M.S.P.R. at 282. Finally, the appellant argues that J.Z. allegedly “won

an Award in Arbitration” against an agency official involved in his own appeal,

PFR File, Tab 1 at 4, but the appellant has not submitted any such document or

8

An affidavit from one of the two remaining requested witnesses was a part of the

written record below. I-1, IAF, Tab 21 at 11.

11

otherwise shown that it constitutes new and material evidence in this case, 9

Avansino, 3 M.S.P.R. at 214; Russo v. Veterans Administration, 3 M.S.P.R. 345,

349 (1980).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS 10

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),

9

On review, the appellant submitted a number of documents that he describes as new

and material evidence. Apart from those we have already addressed, they consist of a

January 17, 2012 Letter of Expectations he received regarding his performance, PFR

File, Tab 1 at 28, and an August 5, 2013 Superior Court of Arizona decision reversing a

judgment by the trial court, which continued in place an injunction him by the Clinical

Director of the facility where he was employed at the time of his detail, id. at 29-31.

The appellant has not shown that these documents are new or material to the dispositive

issues in this case, Avansino, 3 M.S.P.R. at 214; Russo, 3 M.S.P.R. at 349; and we

therefore have not considered them. The appellant also contends that a Wikipedia entry

shows that the Director of the facility at which he worked prior to h is detail previously

worked where he was detailed, and he posits that the Chief Executive Officer did so as

well. PFR File, Tab 1 at 15. He also suggests that these two individuals had

“checkered employment practices.” I d. at 16. Evidence that others besides those who

ordered the appellant’s removal may have had a motive to retaliate against him and may

have influenced the decision to remove could be relevant in determining if the agency

showed by clear and convincing evidence that it would have removed the appellant,

even absent his whistleblowing. Carr, 185 F.3d at 1326. However, because this

proffered “evidence” is not new, Avansino, 3 M.S.P.R. at 214, and is, at best,

speculative, we have not considered it.

12

(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.

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 your appeal to

the 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

13

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.