The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AGNES C. COLLIER, DOCKET NUMBER
Appellant, CH-1221-14-0520-W-1
v.
DEPARTMENT OF VETERANS DATE: November 30, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Denise M. DeBelle, Esquire, and Tim Huizenga, Chicago, Illinois, for the
appellant.
Robert Vega, Esquire, Hines, Illinois, 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
denied her request for corrective action. 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
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
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regulation or the erroneous application of the law to the facts of the case; the
administrative 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. 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, 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).
BACKGROUND
¶2 The appellant, a Certified Nursing Assistant (CNA) at the agency’s
Jesse Brown Medical Center, alleged in this individual right of action (IRA)
appeal that the agency terminated her on July 5, 2012, during her 1-year
probationary period, in retaliation for making protected whistleblowing
disclosures regarding a patient. Initial Appeal File (IAF), Tab 1. As set forth in
the initial decision, on March 6, 2012, the patient underwent a Chronic Total
Occlusion Recanalization procedure, which involved the insertion of catheters in
his right radial and femoral arteries, after which he was reported as fully awa ke,
alert, and oriented. IAF, Tab 44, Initial Decision (ID) at 2; IAF, Tab 35 at 32, 34,
38. Because of the need to limit his movement, he was transferred to the
telemetry unit around 3:15 p.m. in the same sheets and gown used in the
procedure. ID at 3; IAF, Tab 36 at 31-32. As a result, there was dried blood on
him when he arrived. ID at 3; IAF, Tab 42, Nov. 20, 2014 Hearing Transcript
(HT-1) at 19-20, Tab 43, Nov. 21, 2014 Hearing Transcript (HT-2) at 475-76. A
Registered Nurse (RN) who assumed the patient’s care at that point also reported
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that the patient was awake, alert, oriented, and had no bleeding or hematoma at
the site of either catheterization as of 4:12 p.m. ID at 3; IAF, Tab 36 at 32-34.
¶3 The appellant also was assigned to the telemetry unit and had begun her
duty there at 3:30 p.m. that day. HT-1 at 16. A shift change occurred soon
afterwards and a different RN, who was a nursing preceptor accompanied by a
student nurse, took over responsibility for the patient’s care. HT-2 at 468,
506‑08; IAF Tab 36 at 36. Under that RN’s guidance, the student nurse
documented the patient’s status and progress, noting that he remained stable,
alert, and oriented, and reporting that he had experienced no pain or hematoma at
the catheterization sites as of 4:43 p.m. IAF, Tab 36 at 35-37.
¶4 The patient experienced some bleeding in the early evening hours, around
the time that a third RN took over the patient’s car e in the telemetry unit. ID
at 4-5; HT-1 at 19; HT-2 at 368, 370-71, 382-83. Although the administrative
judge noted that the parties did not agree on who discovered the bleeding or even
who provided the medical care to address it, notes entered by that third RN
indicate that she successfully addressed the condition, applying pressure to the
site to stop the moderate bleeding, notifying the doctor, and keeping close
observation of the site of the bleeding. ID at 4-5 & n.4; IAF, Tab 30 at 93; HT-1
at 19, 22-23; HT-2 at 381-87. The patient was released the next day in stable
condition with no complaints of pain or discomfort. ID at 5; IAF, Tab 30 at 94.
On March 8, 2012, the appellant gave her superior a VA Form 119, Report of
Contact (ROC) alleging that she reported to a nurse on March 6, that the patient
“was left in dried blood.” IAF, Tab 29 at 10. The nurse reportedly responded
that “nothing [would] be done about it.” Id.
¶5 After holding a hearing, the administrative judge issued an initial decision
in which he denied corrective action, explaining his decision with a
comprehensive review of both the testimonial and documentary evidence before
him. ID. He found that the appellant nonfrivolously alleged that she made a
protected disclosure when she purportedly told her supervisor that she had
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discovered a patient unattended and bleeding from an incision to his femoral
artery, and that she reasonably believed that the failure of an RN on duty to
provide any medical care constituted a substantial and specific danger to that
patient’s health and safety. ID at 13. He further found that the appellant
nonfrivolously alleged that her disclosure was a contributing factor in the
agency’s decision to terminate her less than 5 months into her 1-year probationary
period, and also found that she had exhausted her administrative remedies before
the Office of Special Counsel (OSC) as to that disclosure and personnel action,
establishing jurisdiction over her IRA appeal. ID at 10, 13-14.
¶6 However, the administrative judge found that the appellant failed to
establish by preponderant evidence that a disinterested observer, with knowledge
of the essential facts known to and readily ascertainable by the appellant, could
reasonably conclude that her disclosure that a patient was left in dried-up blood
following a cardiac catheterization, and that an RN on duty refused to help and
told her not to complain because nothing would be done, revealed a substantial
and specific danger to public health and safety within the meaning of 5 U.S.C.
§ 2302(b)(8)(A)(ii). ID at 15-25.
¶7 In her petition for review, the appellant asserts that the administrative judge
improperly overlooked disclosures she allegedly made on March 6 and 8, 2012,
regarding the patient’s care, analyzing only the March 8 ROC. Petition for
Review (PFR) File, Tab 1 at 7-9; IAF, Tab 31 at 13-16. She also contends that
the administrative judge should have examined these disclosures together with the
March 8 ROC because disclosures like these “could come in separate pieces
rather than one tidy package” and asserting that such a disclosure should be
sufficient if the pieces, taken together, serve to apprise the agency of a substantial
and specific danger to public safety. PFR File, Tab 1 at 9‑10. The appellant
further asserts that the patient did not receive the care required by agency
protocols and that, under such circumstances, she had a reasonable belief of a
substantial and specific danger to that patient. Id. at 10-15. In similar fashion,
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she argues that her assertion that an RN allegedly refused to care for the patient
because the patient was not his responsibility also established a substantial and
specific danger. Id. at 12-13. She insists that the patient was not just lying in
dried blood and smoothly recovering from his cardiac catheterization, but was
instead actively bleeding, and she argues that under a proper recitation of the
facts, her disclosures were protected. Id. at 15-17. The agency responds in
opposition to the appellant’s petition for revie w. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶8 Federal agencies are prohibited from taking, failing to take, or threatening
to take or fail to take, any personnel action against an employee in a covered
position because of the disclosure of information that the employee reasonably
believes to be evidence of a violation of law, rule, or regulation, gross
mismanagement, a gross waste of funds, an abuse of authority, or a substantial
and specific danger to public health and safety. 5 U.S.C. § 2302(a)(2), (b)(8). To
establish a prima facie case of whistleblower reprisal, the employee must prove,
by preponderant evidence, that she made a protected disclosure and that the
disclosure was a contributing factor in a personnel action taken against her.
5 U.S.C. § 1221(e)(1); Mastrullo v. Department of Labor, 123 M.S.P.R. 110,
¶ 12 (2015).
¶9 The proper test for determining if an employee had a reasonable belief her
disclosure revealed misconduct described in 5 U.S.C. § 2302(b)(8) is whether a
disinterested observer with knowledge of the essential facts known to and r eadily
ascertainable by the employee could reasonably co nclude that the actions of the
Government evidenced wrongdoing as defined by the Whistleblower Protection
Act (WPA). Chambers v. Department of the Interior, 602 F.3d 1370, 1379 n.7
(Fed. Cir. 2010). Here, the appellant alleged that her disclosures were of a danger
to public health and safety. IAF, Tab 5 at 17. The inquiry into whether an
appellant disclosed danger that is sufficiently substantial and specific to warrant
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finding that it is protected whistleblowing “is guided by several factors, among
these: (1) the likelihood of harm resulting from the danger; (2) when the alleged
harm may occur; and (3) the nature of the harm, i.e., the potential consequences.”
Chambers, 602 F.3d at 1376.
The appellant established jurisdiction over her IRA appeal but f ailed to prove her
claim on the merits.
¶10 In an IRA appeal, the standard for establishing jurisdiction and the right to
a hearing is an assertion of a nonfrivolous allegation, while the standard for
establishing a prima facie case is that of preponderant evidence. Langer v.
Department of the Treasury, 265 F.3d 1259, 1265 (Fed. Cir. 2001). We agree
with the administrative judge that the appellant proved OSC exhaustion and made
the requisite nonfrivolous allegations to establish jurisdiction over her IRA
appeal, which involved potentially serious issues of patient neglect, which
warranted a hearing on her whistleblowing claims. 2 ID at 8-14. As discussed
below, we also agree with his ultimate conclusion that, based on the evidence of
record and the testimony before him, it was not credible that a disinterested
observer in the appellant’s position, a seasoned health care professional with
16 years of experience as a CNA, would consider the fact that this patient was
lying in dried blood following a cardiac catheterization constituted a substantial
and specific danger to the patient’s health and safety. ID at 24-25. The record
reflects that the patient required complete immobilization following the
catheterization procedure, precluding a change in his blood-stained gown and
sheets, and that the RNs charged with the patient’s care at the time of the
appellant’s observation fulfilled their obligations, resulting in the patient’s
discharge the next day with no complaints of pain or discomfort. After our
2
The administrative judge found that the appellant failed to establish jurisdiction over
any additional alleged disclosures. ID at 10 n.9, 12-13. The parties do not challenge
those findings on review, and we decline to disturb them.
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thorough review of this evidence, we affirm the administrative judge’s
well‑reasoned decision to deny the appellant’s request for corrective action.
The administrative judge made a proper credibility-based factual finding that the
appellant’s March 8, 2012 Report of Contact was the most credible iteration of
her disclosure.
¶11 In the initial decision, the administrative judge provided a comprehensive
summary of the record pertaining to the appellant’s disclosure s, including her
March 6, 2012 conversation with an RN regarding the patient, her March 8
conversation with her superior, and the March 8 ROC. ID at 17-20. Based on the
documentary evidence in the record and hearing testimony, he found that the
March 8, 2012 ROC, in which the appellant disclosed to her supervisor that a
patient had been left in dried blood and an RN had told her not to complain about
it because nothing would be done, represented the extent of her disclosure, and he
properly gave it significant weight. ID at 17-18, 21-24; IAF, Tab 32 at 10; see
Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987) (discussing the
factors to be considered by an administrative judge in resolving credibility
issues). By contrast, he found no probative value in the appellant’s two purported
prior disclosures. ID at 21-24. He observed that the record contained little
evidence to support her testimony that she had left a written report regarding the
patient under her supervisor’s door on March 6, in large part because the
appellant herself apparently destroyed the document, and her “vague, generalized
assertions” failed to show that she had made a disclosure when speaking with her
supervisor on March 8. ID at 17-19, 21; HT-1 at 26, 160-61. He also accorded
little weight to the appellant’s subsequent characterizations of her disclosures,
finding them neither reliable nor probative, noting the vast difference between her
post-hoc statements and the ROC, and citing her incentive to over-dramatize
those later statements in order to invoke the protections of the WPA. ID at 22-23.
¶12 The Board must defer to an administrative judge’s credibility
determinations when, as here, they are based on the observation of the demeanor
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of witnesses testifying at a hearing. Haebe v. Department of Justice, 288 F.3d
1288, 1301 (Fed. Cir. 2002) . Thus, we defer to the administrative judge’s finding
that the appellant’s characterization in the March 8, 2012 ROC, in which she
described the patient as “left in dried up blood,” was more credible than the later
iteration set forth in her September 19, 2012 OSC complaint that the patient was
instead “bleeding profusely.” IAF, Tab 5 at 17, 20, Tab 29 at 10. Contrary to the
appellant’s assertions on review, the administrative jud ge explicitly considered
the appellant’s alleged disclosures on March 6 and 8, 2012, but found her
testimony insufficient to establish that she had made a disclosure therein. PFR
File, Tab 1 at 7-10; ID at 17-19, 21. The ROC was entitled to significant weight,
in large part because of its contemporaneous nature. ID at 22‑23; see Hillen,
35 M.S.P.R. at 458. Thus, not only does the record reflect that the administrative
judge gave each of the appellant’s asserted disclosures its proper consideration,
the initial decision also reflects that he considered her allegations as a whole,
noting the change of the tone of her assertions over time and drawing his
conclusions from the entirety of the record. Most importantly, this finding is
consistent with the evidence and testimony before the administrative judge, which
established that the patient was laying in dried blood due to the critical need for
him to remain still to control his bleeding following the catheterization
procedure. Thus, as the following discussion indicates, we reject the appellant’s
post-hoc characterization, which she repeats on review, that the patient was
actually in danger. PFR File, Tab 1 at 15-17.
The record reflects that, contrary to the appellant’s contentions, the patient
received proper care under the circumstances.
¶13 The appellant also alleges that the agency violated its own protocols when
the patient’s vital signs were not taken for 4 hours on March 6, 2012. PFR File,
Tab 1 at 10-12; see 5 U.S.C. § 2302(b)(8)(A)(i) (designating disclosures of
violations of law, rule, or regulation as protected). However, the record reflects
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that the patient who was the subject of the appellant’ s purported disclosures
received care consistent with the agency’s standard of care. ID at 2-5.
¶14 The agency presented evidence that it was appropriate for the patient to be
lying in dried blood following a cardiac catheterization due to the obvious and
acute need to leave him in place following the procedure to minimize further
bleeding from the catheterization sites. In addition, the patient’s progress notes
show that the agency continuously monitored him and that the one period of
subsequent bleeding he experienced was properly addressed by the RN who was
responsible for his care when it occurred. ID at 3-5; IAF, Tab 30 at 93, Tab 35
at 6-11, Tab 36 at 32-52. Under that circumstance, the refusal of a different RN
to take responsibility for the patient’s care does not seem unreasonable.
Moreover, regardless of who discovered that the patient was bleeding, the
documentary evidence confirms the RN’s testimony that she stanched the
bleeding and continued to observe the patient until his vital signs and blood
pressure returned to normal and everything was stable. HT-2 at 381; IAF, Tab 30
at 93. As noted above, the record confirms that the patient was released the next
day in stable condition with no complaints of pain or discomfort. IAF, Tab 30
at 94.
¶15 Accordingly, we affirm the administrative judge’s decision to deny
corrective action in this matter.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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
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deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U .S. 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 U.S. 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 U.S. 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 the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
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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 provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.