Opinion

Terrance Miguel Peterson v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jul 31, 2015
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 34.9%

“The essential requirements of due process … are notice and an opportunity to respond.”

How later courts described this case

“The essential requirements of due process … are notice and an opportunity to respond.”
the whistleblower protection rules are not meant to protect employees from their own misconduct
“It is error for the MSPB to not evaluate all the pertinent evidence in determining whether an element of a claim or defense has been proven adequately.”
the Board’s jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TERRANCE MIGUEL PETERSON, DOCKET NUMBERS

Appellant, PH-0752-14-0706-I-1

PH-1221-14-0618-W-1

DEPARTMENT OF VETERANS

AFFAIRS, DATE: July 31, 2015

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Terrance Miguel Peterson, Newark, Delaware, pro se.

Marcus S. Graham, Esquire, Pittsburgh, Pennsylvania, 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:

(1) sustained both charges, found that he did not prove any of his affirmative

defenses, and affirmed the removal action; and (2) denied his request for

corrective action in the individual right of action (IRA) appeal concerning his

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

10-day suspension. 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 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: (1) address the appellant’s argument regarding the administrative

judge’s allegedly improper consideration of hearsay evidence from Patient A;

(2) discuss the appellant’s potential claims pursuant to the Veterans Employment

Opportunities Act of 1998 (VEOA) and/or the Uniformed Services Employment

and Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333)

(USERRA); and (3) supplement the administrative judge’s analysis of the

appellant’s claims of whistleblower reprisal and harmful procedural error. We

find that the appellant’s arguments on review do not warrant a different outcome.

Except as expressly modified by this Final Order, we AFFIRM the

initial decision.

BACKGROUND

¶2 The appellant, a Health Technician, filed an appeal challenging the

agency’s decision to remove him based on a charges of performing work outside

the scope of his position (three specifications) and conduct unbecoming a Federal

employee (three specifications). Peterson v. Department of Veterans Affairs,

MSPB Docket No. PH-0752-14-0706-I-1, Initial Appeal File (0706 IAF), Tab 1,

Tab 6 at 22, 46-48. The appellant also filed an IRA appeal, alleging that his

earlier 10-day suspension was in reprisal for protected whistleblowing activity.

Peterson v. Department of Veterans Affairs, MSPB Docket No. PH-1221-14-

0618-I-1, Initial Appeal File (0618 IAF), Tab 1. The administrative judge joined

these appeals. 0706 IAF, Tab 3.

¶3 The appellant filed various motions, including to compel discovery, for

certification of an interlocutory appeal, for sanctions, and for the administrative

judge to recuse himself, and he also filed a request to stay the proposed removal.

See, e.g., 0706 IAF, Tabs 11, 17, 23, 27, 32, 40; 0618 IAF, Tab 9; see also

Peterson v. Department of Veterans Affairs, PH-1221-14-0618-S-1, Stay Request

File (0618 SRF), Tab 1. The administrative judge denied these motions. See

0706 IAF, Tab 51; see also 0618 SRF, Tab 4. The appellant waived his right to a

hearing in the chapter 75 appeal and the IRA appeal. See 0706 IAF, Tab 33.

¶4 The administrative judge issued a lengthy initial decision. 0706 IAF,

Tab 60, Initial Decision (ID). Regarding the IRA appeal, the administrative judge

determined that the appellant proved that his disclosures were protected but that

he failed to establish that his disclosures were a contributing factor in the

agency’s decision to suspend him for 10 days. ID at 11-14. The administrative

judge also determined that, even if the appellant had established that the

disclosures were a contributing factor in his suspension, the agency proved by

clear and convincing evidence that it would have suspended him absent the

protected activity. ID at 14-16. In the chapter 75 appeal, the administrative

judge sustained both charges and all of the specifications alleged therein. See ID

at 17-22. The administrative judge further found that the appellant did not prove

his affirmative defenses of reprisal for whistleblowing activity, reprisal for

protected equal employment opportunity (EEO) activity, race and disability

discrimination, a hostile working environment, and harmful procedural error. ID

at 22-35. He also found that the removal penalty was reasonable and promoted

the efficiency of the service. ID at 36-37.

¶5 The appellant has filed a petition for review and five supplemental

submissions. Petition for Review (PFR) File, Tabs 1-6. The agency has filed a

response to the petition for review, and the appellant has filed a reply and a

supplemental reply. PFR File, Tabs 8-10. The appellant also has filed a request

to file an additional pleading. 2 See PFR File, Tab 14.

¶6 After the parties filed their submissions on review, the Office of the Clerk

of the Board issued an order that: (1) acknowledged the appellant’s assertion

below that he was entitled to veterans’ preference and that the agency

discriminated against him based on his veteran status; (2) noted that the

administrative judge did not give the appellant notice of his burdens pursuant to

VEOA or USERRA; (3) provided such notice to the appellant; and (4) ordered the

appellant to clarify the nature of his claims and to submit evidence in support of

those claims. PFR File, Tab 16. Subsequently, the appellant filed three

submissions, and the agency filed a response. See PFR File, Tabs 17-20.

DISCUSSION OF ARGUMENTS ON REVIEW

¶7 On review, the appellant asserts that the administrative judge failed to

properly weigh Patient A’s hearsay evidence, improperly analyzed his

whistleblowing, disability discrimination, and harmful procedural error claims,

and failed to adjudicate his claims regarding veterans’ preference. He also

appears to be alleging certain procedural errors, including the denial of his stay

request, discovery rulings, and the denial of his requests for interlocutory appeal

certification. He appears, moreover, to assert administrative judge bias.

We DENY this request because the appellant does not identify or describe any new

evidence nor does he explain how this new evidence warrants a different outcome.

We modify the initial decision to supplement the administrative judge’s analysis

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

who were involved in the decision to suspend the appellant, but we conclude that

the administrative judge properly denied the appellant’s request for corrective

action in the IRA appeal. 3

¶8 In an IRA appeal, after establishing the Board’s jurisdiction, the appellant

then must establish a prima facie case of whistleblower retaliation by proving by

preponderant evidence that: (1) he made a disclosure described under 5 U.S.C.

§ 2302(b)(8) or engaged in protected activity described under 5 U.S.C.

§ 2302(b)(9)(A)(i), (B), (C), or (D); and (2) the disclosure or protected activity

was a contributing factor in the agency’s decision to take or fail to take a

personnel action as defined by 5 U.S.C. § 2302(a). 5 U.S.C. § 1221(e)(1);

Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 6 (2015). If the

appellant meets that burden, the Board shall order such corrective action as it

considers appropriate unless the agency shows by clear and convincing evidence

that it would have taken the same personnel action in the absence of the protected

disclosure. 5 U.S.C. § 1221(e)(1)-(2); Chambers v. Department of the

Interior, 116 M.S.P.R. 17, ¶ 12 (2011).

¶9 Here, the appellant does not appear to challenge the administrative judge’s

finding that he failed to establish a prima facie case of whistleblower retaliation.

Rather, he argues that the administrative judge incorrectly analyzed the

connection between the Administrative Investigation Board (AIB) and the

agency’s action. In this regard, he appears to allege that the director that ordered

the AIB was “directly aware of the [d]isclosures,” and “the charged conduct

[would] not have occurred” without the AIB’s decision to order anger

management. PFR File, Tab 3 at 3. We interpret these arguments as relating to

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

The agency did not file a petition for review challenging the administrative judge’s

conclusion that the appellant made protected disclosures regarding improper handling

of medical instruments, a delay in the arrival of hearing aids, safety concerns in the

dialysis unit, and dirty medical instruments, ID at 12, and we affirm these findings.

officials who were involved in the decision. See Carr v. Social Security

Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). 4 Because the appellant

raised these arguments below in the context of the suspension, see 0706 IAF,

Tab 49 at 3, the administrative judge did not address them in the initial decision,

and the appellant withdrew his request for a hearing, see 0706 IAF, Tab 33, we

may resolve these issues on the current record. See Whitmore v. Department of

Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012) (“It is error for the MSPB to not

evaluate all the pertinent evidence in determining whether an element of a claim

or defense has been proven adequately.”).

¶10 The record reflects that D.H., the then-Director, initiated the AIB in April

2013 to investigate allegations of safety concerns and concerns about procedures

being followed in the Ear, Nose and Throat Specialty Clinic where the appellant

worked. See 0618 IAF, Tab 18 at 16; see also 0706 IAF, Tab 30 at 21-26. The

record also reflects that D.H. was aware of some of the appellant’s disclosures.

See, e.g., 0706 IAF, Tab 12 at 21. Even if we were to conclude, solely for the

purposes of our analysis, that D.H.’s decision to initiate the AIB was in

retaliation for the appellant’s disclosures, there is no evidence whatsoever that

D.H. unduly influenced any of the members of the AIB, A.M., 5 or the proposing

or deciding officials in the suspension. See Aquino v. Department of Homeland

Security, 121 M.S.P.R. 35, ¶ 23 (2014) (an appellant can demonstrate that a

prohibited animus toward a whistleblower was a contributing factor in a

Regarding the other Carr factors, the appellant does not appear to challenge the

administrative judge’s assessment of the strength of the agency’s evidence regarding

the conduct unbecoming charge or its two specifications, ID at 15-16, and we affirm

this portion of the initial decision. Although the administrative judge did not discuss

the third element, evidence that the agency takes similar actions against employees who

are not whistleblowers but who are otherwise similarly situated, the appellant does not

raise any error in this regard on review.

A.M. was the Program Director of the anger management facility to which the

appellant was referred as a result of the AIB, and whose contact with the appellant led

to specification 2 in the conduct unbecoming charge. See, e.g., 0706 IAF, Tab 43

at 32-33; 0618 IAF, Tab 1 at 2.

personnel action by showing by preponderant evidence that an individual with

knowledge of the appellant’s protected disclosure influenced the deciding official

accused of taking the personnel action). Nor is there any evidence that any

members of the AIB or A.M. acted in retaliation for the appellant’s

whistleblowing activity. See, e.g., 0706 IAF Tab 30 at 21-26, Tab 43 at 25-26,

32-33. It appears true that the appellant would not have been ordered to attend

anger management absent the results of the AIB, which found, among other

things, that he “has demonstrated disruptive and inappropriate behavior” and his

actions “are perceived as threats of physical violence, harassment, intimidation,

and other threatening behaviors.” 0706 IAF, Tab 30 at 18, 21-26. However, this

chronology does not create a causal connection between the appellant’s

disclosures and the charged misconduct described in specification 2 of the

conduct unbecoming charge. See, e.g., Carr, 185 F.3d at 1326 (the whistleblower

protection rules are not meant to protect employees from their own misconduct).

We are therefore not persuaded by these arguments.

¶11 We further modify the initial decision to supplement the administrative

judge’s conclusion that none of the appellant’s disclosures were directed against

the proposing and deciding officials and neither official had actual or constructive

knowledge of the disclosures. See ID at 16. It appears that the proposing

official, Associate Chief Nurse for Ambulatory Care R.W., and the deciding

official, Associate Director M.A.J., had some knowledge of the appellant’s

various complaints to the Office of the Inspector General (OIG) and his EEO

complaints. See, e.g., 0706 IAF, Tab 43 at 34-35, 38. The appellant’s

disclosures, even if not directed at R.W. or M.A.J., could reflect poorly on them

in their respective supervisory positions and, thus, could be evidence of a

retaliatory motive. See, e.g., Whitmore, 680 F.3d at 1370 (“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.”). We note, however, that both R.W. and M.A.J.

declared that the appellant’s protected activity and/or his disclosures did not play

any part in their respective decisions to propose or effect the suspension. See

0706 IAF, Tab 43 at 35, 37.

¶12 Based on our supplemental analysis of the agency’s motive to retaliate and

the appellant’s evidence and argument in this regard, we conclude that the agency

demonstrated by clear and convincing evidence that it would have suspended the

appellant even absent his whistleblowing activity. We therefore agree with the

administrative judge’s decision to deny corrective action in the IRA appeal.

We modify the initial decision to address the appellant’s arguments regarding the

probative value of Patient A’s hearsay evidence and his claims regarding his

affirmative defenses of reprisal for whistleblowing activity and harmful

procedural error, but these arguments do not warrant a different outcome in the

removal appeal.

¶13 We have considered the appellant’s assertion that the administrative judge

improperly evaluated Patient A’s hearsay evidence. See PFR File, Tab 1 at 5.

We understand this argument to relate only to specifications 1 and 3 of charge 1,

performing work outside the scope of his position. 6 It is well settled that relevant

hearsay is admissible in administrative proceedings. See, e.g., Shannon v.

Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 15 (2014); Borninkhof v.

Department of Justice, 5 M.S.P.R. 77, 83 (1981). An assessment of the probative

value of hearsay evidence necessarily depends on the circumstances of each case.

In specification 2, the agency charged the appellant with documenting in Patient A’s

Progress Note that there were “alternative methods [for managing the buildup of wax in

Patient A’s ears] by consulting the local pharmacy for over-the-counter methods.”

0706 IAF, Tab 6 at 46. The appellant’s argument regarding the administrative judge’s

consideration of Patient A’s hearsay evidence does not appear to implicate

specification 2. Moreover, the appellant does not dispute that he made this entry in

Patient A’s electronic record, and it does not appear that this work was within the scope

of the appellant’s assigned duties. See 0706 IAF, Tab 6 at 64; see also 0706 IAF,

Tab 30 at 35-42, 44-94. In the absence of any challenge to the administrative judge’s

decision to sustain specification 2, we affirm the administrative judge’s decision to

sustain this specification.

Borninkhof, 5 M.S.P.R. at 83-87. The Board evaluates the probative value of

hearsay under the following factors, among others: the availability of persons

with firsthand knowledge to testify at the hearing; whether the out-of-court

statements were sworn; the consistency of the out-of-court statements with other

statements and evidence; the consistency of declarants’ accounts with other

information in the case, internal consistency, and their consistency with each

other; and whether corroboration for the statements can otherwise be found in the

agency record. Id. at 87.

¶14 Specification 1 charged the appellant with removing wax from Patient A’s

ears on October 25, 2013. 0706 IAF, Tab 6 at 46. Specification 3 charged the

appellant with cleaning Patient A’s ears “[o]n more than one occasion.” Id. To

support these specifications, the agency relied on declarations, made under

penalty of perjury, from Medical Support Assistant B.R. and R.W. who observed

and/or talked to Patient A regarding these allegations. B.R. stated in her

declaration that Patient A came to the medical center on October 25, 2013, he

complained to her about wax build up in his ears, he specifically asked for the

appellant by name, and he told her that the appellant had removed wax from his

ears previously and that he would like to see him again. 0706 IAF, Tab 43 at 39.

B.R. further stated in her declaration that she filled out a walk-in sheet for

Patient A, the appellant retrieved the sheet, and he called Patient A into an

examination room, where they stayed for 15 minutes. Id. B.R. stated that she

did not observe any other individuals enter the room. Id. Upon exiting the

examination room, Patient A told B.R. that his ears felt much better. Id. In her

declaration, R.W. stated that she spoke with Patient A on the telephone on

March 10, 2014, and he stated, among other things, that the appellant did an

“excellent job” cleaning his ears and that the appellant cleans his ears “all the

time,” including in the last few months. 0706 IAF, Tab 43 at 34-35; see

0706 IAF, Tab 6 at 60-61. The appellant denied cleaning Patient A’s ears on

October 25, 2013. See, e.g., 0706 IAF, Tab 6 at 27.

¶15 Although the administrative judge did not analyze the Borninkhof factors in

his assessment of the hearsay evidence related to charge 1, we do so now because

the record is fully developed below. It is immaterial whether Patient A was

available to testify because the appellant withdrew his request for a hearing.

Weighing against the probative value of Patient A’s hearsay evidence is the fact

that the agency did not provide a sworn statement from Patient A, and it offered

no explanation for why it was unable to do so. See Wallace v. Department of

Health & Human Services, 89 M.S.P.R. 178, ¶ 7 (2001). We find, however, that

an assessment of the remaining relevant Borninkhof factors weighs in favor of the

probative value of Patient A’s hearsay evidence. Significantly, B.R.’s

conversation with Patient A on October 25, 2013, and her observations of

Patient A and the appellant on this date, are corroborated by the appellant’s entry

in Patient A’s electronic medical record that Patient A complained about “wax in

his ears” and R.W.’s later conversation with Patient A. See 0706 IAF, Tab 6

at 64, Tab 43 at 34-35. Moreover, there was no evidence that any doctor or other

authorized professional saw Patient A on October 25, 2013. We conclude that

Patient A’s hearsay evidence has probative value, and it is more likely than not

that the appellant cleaned Patient A’s ears on this date. The appellant does not

appear to challenge that such work only may be performed under the supervision

of an audiologist or physician, see 0706 IAF, Tab 30, and we find that the agency

proved specification 1 by preponderant evidence.

¶16 Because our decision to sustain specifications 1 and 2 is sufficient to

support a finding that the agency proved charge 1, we need not resolve whether

the probative value of Patient A’s hearsay evidence supports a finding that the

agency proved specification 3. See, e.g., Burroughs v. Department of the

Army, 918 F.2d 170, 172 (Fed. Cir. 1990) (where more than one event or factual

specification supports a single charge, proof of one or more, but not all, of the

supporting specifications is sufficient to sustain the charge).

¶17 The appellant does not appear to challenge on review the administrative

judge’s decision to sustain any of the three specifications of the conduct

unbecoming a Federal employee charge, which included allegations that the

appellant: (1) “threatened to cut [a doctor] up like a [t]urkey”; (2) stated to

another agency employee that he was “going to hurt someone”; and (3) while on

duty time, contacted A.M. and threatened to sue him based on what he said in an

email to the appellant’s supervisor. 0706 IAF, Tab 6 at 46-47. In the absence of

any challenge to the administrative judge’s decision to sustain the charge and

corresponding specifications, we affirm the initial decision in this regard. See,

e.g., 0706 IAF, Tab 43 at 32-33, 42-45.

¶18 Regarding the appellant’s defense of reprisal for whistleblowing activity, he

does not challenge the administrative judge’s decision to assume that he made

protected disclosures based on his EEO complaints and his complaints to OIG,

Congress, the Office of Special Counsel (OSC), the Department of Health and

Human Services, and the Delaware Board of Professional Regulations. See ID

at 22-23, 25. Rather, the appellant appears to challenge the administrative

judge’s conclusion that the agency proved by clear and convincing evidence that

it would have removed the appellant absent his whistleblowing activity. See PFR

File, Tab 3 at 3 (arguing that the agency retaliated against him by initiating an

investigation into the allegations involving Patient A nearly 5 months after the

alleged events). We understand the appellant’s argument to relate to the motive

to retaliate element discussed in Carr. 7

Regarding the strength of the agency’s evidence, the administrative judge did not

specifically discuss the appellant’s response to the notice of proposed removal. See

0706 IAF, Tab 6 at 26-29. We modify the initial decision to consider the appellant’s

response per Whitmore, but we agree with the administrative judge that the agency’s

evidence is strong. See, e.g., 0706 IAF, Tab 43 at 32-35, 39, 42-45; see also 0706 IAF,

Tab 6 at 64. The appellant also does not appear to challenge the administrative judge’s

conclusion that there was “no evidence that any employee who was not a whistleblower

was allowed to stay on the agency’s rolls after committing misconduct of the

magnitude” that he sustained in this matter. ID at 25.

¶19 An investigation is not generally a personnel action under 5 U.S.C.

§ 2302(a)(2)(A); however, it is appropriate to consider evidence regarding an

investigation if it is so closely related to a personnel action that it could have

been a pretext for gathering information to retaliate for whistleblowing.

Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 22 n.12 (2013). Here,

the results of the investigation into the appellant’s interactions with Patient A

resulted in one of the charges (performing work outside the scope of his position)

that ultimately led to his removal, which is a personnel action under 5 U.S.C.

§ 2302(a)(2)(A)(iii). See Shibuya, 119 M.S.P.R. 537, ¶ 22 n.12. The record

reflects that R.W. contacted Patient A in March 2014. See 0706 IAF, Tab 6

at 59-60, Tab 43 at 35. The record also reflects that R.W. and proposing official

M.A.J. had some knowledge of some of the appellant’s disclosures but that

deciding official Director R.A-W. did not. See 0706 IAF, Tab 43 at 34-38, 46-47.

Even if we conclude, solely for the purposes of our analysis, that the appellant’s

disclosures were a contributing factor in R.W.’s decision to initiate an

investigation into the appellant’s contacts with Patient A, the appellant has

identified no persuasive evidence upon which we could conclude that deciding

official R.A-W. had constructive knowledge of the disclosures based on R.W.’s

influence over the personnel action. See Aquino, 121 M.S.P.R. 35, ¶¶ 18-24.

¶20 We further modify the initial decision to supplement the administrative

judge’s analysis of the motive to retaliate element in his Carr analysis. In the

initial decision, the administrative judge concluded that neither M.A.J. nor

R.A-W. had a motive to retaliate against the appellant because M.A.J. did not

consider his complaints and R.A-W. had no knowledge of any of his complaints.

See ID at 24-25. The administrative judge failed to acknowledge that the

appellant’s disclosures, even if not directly made against proposing official

M.A.J., could reflect negatively on her and could be indicative of a motive to

retaliate. See Whitmore, 680 F.3d at 1370.

¶21 Notwithstanding our supplemental analysis, we conclude that the agency

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

appellant absent his whistleblowing activity. See, e.g., Carr, 185 F.3d at 1326

(the whistleblower protection rules are not meant to protect employees from their

own misconduct).

¶22 The appellant asserts that the agency failed to follow its own procedures in

the manner that it obtained evidence from Patient A. PFR File, Tab 1 at 5. The

appellant raised this argument below, see 0706 IAF, Tab 36 at 5, but the

administrative judge did not discuss it in his harmful procedural error analysis,

see ID at 33-35. We therefore modify the initial decision to supplement the

administrative judge’s analysis of this issue. Even if we assume that the agency

violated its procedures in the manner in which it obtained evidence from

Patient A, the appellant has not persuaded us that any such error was likely to

have caused the agency to reach a conclusion different from the one it would have

reached in the absence or cure of the error. See Stephen v. Department of the

Air Force, 47 M.S.P.R. 672, 681, 685 (1991).

¶23 Regarding the appellant’s failure to accommodate claim, the administrative

judge found, among other things, that the appellant presented “scant evidence” of

the nature of his disability other than to claim that he suffered from depression,

and there was no evidence that he specifically asked his supervisors for an

accommodation. See ID at 31-33. 8 The appellant states briefly that the agency

denied his request for an accommodation, and he asserts that the “proposing

official of the suspension and the deciding official were aware of the Appellant’s

history of depression.” PFR File, Tab 1 at 5. Even if these arguments were true,

the appellant does not explain how the administrative judge erred in his analysis

of this claim.

In his reasonable accommodation request, the appellant asked “to be supervised by

another supervisor” because of a “hostile work environment.” 0706 IAF, Tab 30 at 43.

We cannot discern to whom this request was given.

¶24 The appellant does not appear to challenge the administrative judge’s

assessment of his affirmative defenses of reprisal for protected EEO activity, race

discrimination, and/or a hostile working environment. We therefore affirm the

administrative judge’s conclusions in this regard.

¶25 The Board will review an agency-imposed penalty only to determine if the

agency considered all the relevant factors and exercised management discretion

within tolerable limits of reasonableness. Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 306 (1981). We conclude that the removal

penalty is reasonable for the sustained misconduct, and we affirm the removal. 9

¶26 To the extent that the appellant makes any additional arguments on review

that relate to the IRA appeal or the chapter 75 appeal, we find that these

arguments are without merit.

We modify the initial decision to discuss the appellant’s assertions involving

VEOA and USERRA, but we conclude that he has not proven either of these

affirmative defenses.

¶27 In response to the order from the Office of the Clerk of the Board, the

appellant states, in relevant part, 10 that the agency “treated [him] differently as a

preference eligible veteran” and discriminated against him based on his status as

a veteran. PFR File, Tab 17 at 4. He appears to allege that this discrimination is

Even if we did not sustain specification 3 of charge 1, see supra ¶ 15, we still

conclude that the removal penalty is reasonable. See Payne v. U.S. Postal Service,

72 M.S.P.R. 646, 650 (1996) (when all of the agency’s charges are sustained, but some

of the underlying specifications are not sustained, the agency’s penalty determination is

entitled to deference and should be reviewed only to determine whether it is within the

parameters of reasonableness).

In his three responsive submissions, the appellant includes many allegations that

do not appear related to any claims involving his veterans’ preference and/or his status

as a veteran. See, e.g., PFR File, Tab 17 (discussing allegations of a due process

violation, Privacy Act violations, failure to train, administrative judge bias, and other

legal issues related to his claim of reprisal for whistleblowing activity). Because the

record on review was only open for clarification regarding his claims involving

veterans’ preference and/or discrimination based on his status as a veteran, we do not

consider the other allegations in these submissions.

evidenced by the agency’s April 2013 investigation of him and its decision to put

a flag on his patient file in June 2014. Id. He also includes a list of “comparator

employees,” both veteran and nonveteran, whom he claims “were either treated

similarly” or “more favorabl[y]” than him. Id. at 9-10. In response to the request

for information regarding whether he received a closing letter from the

Department of Labor, the appellant includes correspondence from the Department

of Labor acknowledging that he had filed a USERRA complaint. PFR File,

Tab 18 at 4-5. The appellant further states that his USERRA complaint was

forwarded to OSC’s USERRA unit, and he includes a close-out letter from OSC.

PFR File, Tab 17 at 10, Tab 18 at 6. The OSC close-out letter reveals that the

appellant alleged that the agency discriminated against him based on his status as

a veteran when it “improperly placed a ‘behavioral flag’ on [his] patient medical

record while [he was] employed there as a Health Technician” and that this flag

made it difficult for him to obtain subsequent Federal employment. PFR File,

Tab 18 at 6. The record reflects that the agency placed a behavioral restriction

flag on the appellant’s patient file in June 2014, nearly 2 months after his removal

was effected. See 0706 IAF, Tab 10 at 168.

¶28 Based on these assertions, we conclude that the appellant has not proven by

preponderant evidence that his military status was a motivating or substantial

factor in the removal action. See, e.g., Sheehan v. Department of the

Navy, 240 F.3d 1009, 1013-15 (Fed. Cir. 2001). To the extent that the appellant

is alleging that the agency’s decision to initiate the AIB and/or to place a

behavioral restriction flag on his patient file led to or is otherwise connected to

the removal action, we find that he has not demonstrated that his military status

was a motivating or substantial factor in either of these actions. Even if we were

to conclude that the appellant met his burden in this regard, the agency has

proven by preponderant evidence that its actions would have been taken for a

valid reason despite the protected status. See id.; see also 0706 IAF, Tab 6 at 46-

47 (describing the allegations of misconduct in the removal appeal), Tab 10

at 168 (explaining that the flag was placed on the appellant’s patient file because

of his history of personal attacks towards staff, violent and threatening behavior,

and documentation of unpredictable and violent behavior at the facility), Tab 30

at 21-26 (AIB report of investigation). We also conclude that the appellant

has not alleged any facts to show that he went to the Department of Labor for a

VEOA issue or that he was even raising a VEOA issue in connection with his

removal. See Loggins v. U.S. Postal Service, 112 M.S.P.R. 471, ¶ 15 (2009)

(stating that veterans’ preference rules appear only to apply to hiring and

retention during a reduction in force). Thus, we find that the appellant has not

proven either of these affirmative defenses in the removal action. 11

¶29 To the extent that the appellant may be alleging that the agency violated

USERRA and/or VEOA concerning the 10-day suspension in the IRA appeal,

Congress did not give the Board general jurisdiction to decide the merits of the

underlying personnel action except where they are relevant to the allegations of

reprisal for whistleblowing activity. See Marren v. Department of

Justice, 51 M.S.P.R. 632, 638 (1991), aff’d, 980 F.2d 745 (Fed. Cir. 1992)

(Table), and modified on other grounds by Robinson v. U.S. Postal

Service, 63 M.S.P.R. 307, 323 n.13 (1994). We have considered the appellant’s

allegations, but they do not change our analysis of the IRA appeal.

We discern no error with the administrative judge’s rulings on the

appellant’s motions.

¶30 On review, the appellant asserts that he “was not afforded due process of

the results of the AIB” and that the administrative judge erred when he denied the

appellant’s discovery requests regarding the AIB. PFR File, Tab 3 at 3. We note

that the agency included a copy of the AIB results and recommendation in its

To the extent that the appellant alleged below that any prior nonselections violated

his veterans’ preference rights, see 0706 IAF, Tab 30 at 32, he may file a separate

VEOA appeal. The Board takes no position on whether it would have jurisdiction over

such an appeal.

submissions, and it appears that the appellant obtained portions of the witness

testimony during the AIB pursuant to a Freedom of Information Act request. See

0706 IAF, Tab 28 at 14-109, Tab 30 at 21-26. The AIB was not charged with

investigating any of the allegations of misconduct for which the appellant was

charged in either appeal, and we are not persuaded that any requested information

regarding the AIB was reasonably calculated to lead to the discovery of

admissible evidence in either the IRA appeal or the removal appeal. See 5 C.F.R.

§ 1201.72(a). We therefore discern no error with the administrative judge’s

decision to deny the appellant’s motions to compel for this reason. See 0706 IAF,

Tab 51.

¶31 Regarding the appellant’s assertion that his due process rights were

violated, the Board lacks jurisdiction to adjudicate the merits of such a claim in

the context of an IRA appeal, and his assertion in this regard, even accepted as

true, is not of sufficient weight to change our analysis of the IRA appeal

concerning the 10-day suspension. See Parikh v. Department of Veterans

Affairs, 116 M.S.P.R. 197, ¶ 34 (2011); Marren, 51 M.S.P.R. at 638. We also

conclude that the appellant received all the due process to which he was entitled

in the removal action. See, e.g., Cleveland Board of Education v.

Loudermill, 470 U.S. 532, 546 (1985) (“The essential requirements of due

process … are notice and an opportunity to respond.”); 5 C.F.R. § 752.404(b).

¶32 To the extent that the appellant challenges the administrative judge’s

decision to deny his multiple requests to certify an interlocutory appeal, we agree

with the administrative judge’s conclusion that the appellant did not prove that an

immediate Board ruling is necessary or that the issues presented involved an

important question of law about which there is substantial ground for

disagreement. 0706 IAF, Tab 51; see 0618 IAF, Tab 19; 0706 IAF, Tabs 17, 27;