noting that the whistleblower protection statutes are not meant to protect employees from their own misconduct
How later courts described this case
- noting that the whistleblower protection statutes are not meant to protect employees from their own misconduct
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RAJ BATRA, DOCKET NUMBER
Appellant, SF-1221-15-0674-W-1
v.
DEPARTMENT OF VETERANS DATE: January 11, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Raj Batra, Beverly Hills, California, pro se.
Maureen Ney, Esquire, Los Angeles, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his request for corrective action in this individual right of action (IRA)
appeal. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 jud ges 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
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 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. We MODIFY the initial decision to
clarify the appropriate legal standard by which to evaluate the appellant’s
communications with the Office of the Inspector General (OIG) and to
supplement the administrative judge’s contributing factor analysis. We further
MODIFY the initial decision to supplement the administrative judge’s analysis of
whether the agency proved by clear and convincing evidence that it would have
suspended the appellant in 2013 and 2015 absent his whistleblowing disclosures
and protected activity. We find that the administrative judge correctly
determined that the agency met its burden in this regard and properly denied the
appellant’s request for corrective action. Except as expressly MODIFIED by this
Final Order, we AFFIRM the initial decision.
BACKGROUND
¶2 The relevant background information, as recited in the initial decision, is
generally undisputed. Initial Appeal File (IAF), Tab 30, Initial Decision (ID).
The appellant began working for the agency in January 1998 as a staff physician.
ID at 2. In this capacity, he divided his time performing clinical work (seeing
patients) and conducting research. Id. The appellant also split his time between
the agency and the University of California at Los Angeles (UCLA), whose
3
receipt of Federal grant funds partially paid his salary. Id. When the appellant
began working at the agency, he was mentored by Dr. S.D. Id.
¶3 Since approximately 2003-2004, the appellant was no longer identified on
the Federal grant awarded to UCLA, and he was no longer paid the UCLA portion
of his original salary. ID at 3. The appellant believed that Dr. S.D. stole his
research identity by usurping research for which the appellant was responsible
and receiving millions of dollars of grant funds based on that research. Id. The
appellant made a hotline call to the agency’s OIG in June 2011 concerning
improper funding allocation, among other things. ID at 3 (citing IAF, Tab 1
at 27).
¶4 The appellant also complained to various agency management officials
about his concerns. ID at 5. For instance, in August 2012, the appellant
complained to the Associate Chief of Staff-Research Service that Dr. S.D.’s
UCLA salary is “complemented” with his agency salary. ID at 5; IAF, Tab 1
at 23-25. He also complained to the agency’s Office of Research Oversight
(ORO) regarding the “usurpation of [his] work” and the corruption of the “peer
review process,” but ORO indicated that such complaints were against UCLA
personnel and did not constitute research misconduct. ID at 5; IAF, Tab 1 at 26.
¶5 In May 2013, the Chief of the Medicine Service proposed to suspend the
appellant for 14 days based on charges of inappropriate conduct
(three specifications), disrespectful conduct (two specifications), and failure to
follow instructions (one specification). ID at 6; IAF, Tab 4 at 152-54. The
individual who heard the appellant’s oral reply, the Assistant Director of the West
Los Angeles office, recommended to the deciding official that the suspension be
imposed and that the appellant be required to participate in anger management
training. ID at 6; IAF, Tab 22 at 10. The Director suspended the appellant for
14 days, effective July 1, 2013. ID at 6; IAF, Tab 4 at 150-51.
¶6 On November 19, 2013, UCLA issued the appellant a notice of exclusion,
which barred him from entering or being on campus based on allegations of
4
“disruptive and aggressive behavior.” ID at 6; IAF, Tab 4 at 144-45. On
January 22, 2014, UCLA lifted the notice of exclusion after the appellant
participated in a threat assessment and met with one of the UCLA deans. ID at 6;
IAF, Tab 4 at 123.
¶7 On or around July 2014, the agency convened an Administrative Board of
Investigation (ABI) to investigate allegations that led to the appellant’s exclusion
from UCLA’s campus. ID at 6; IAF, Tab 4 at 131-34. On July 22, 2014, the ABI
issued a report, which made the following findings: (1) the appellant called
Dr. S.D. a “c---sucker”; (2) he called various UCLA personnel “c---suckers”;
(3) he made inappropriate physical contact with Dr. H.H.; (4) he verbally
threatened Dr. R.R.; and (5) he falsely accused Dr. P.F. without prior
clarification. ID at 6; IAF, Tab 4 at 131-34. On July 23, 2014, the appellant sent
an email to the agency OIG hotline, in which he appeared to be following up on
his 2011 complaint. ID at 10; IAF, Tab 1 at 31-32.
¶8 On or around October 9, 2014, the Chief of Staff concurred with the ABI’s
findings and forwarded the report to the Chief of the Medicine Service for
consideration of possible discipline. ID at 6; IAF, Tab 4 at 130. On November 7,
2014, the Chief of the Medicine Service proposed to suspend the appellant for
14 days based on the five specifications of inappropriate conduct that were
sustained by the ABI. ID at 6; IAF, Tab 4 at 127-29. 2 The Associate Director for
Administration/Operations concurred with the suspension and recommended that
the suspension be imposed. ID at 6-7; IAF, Tab 4 at 60-61. The Acting Director
suspended the appellant for 14 days, effective March 1, 2015. ID at 7; IAF, Tab 4
at 58-59.
¶9 On March 6, 2015, the appellant filed a complaint with the Office of Special
Counsel (OSC), alleging that the agency suspended him in 2013 and 2015 in
retaliation for his complaints to agency management officials and OIG. ID at 7;
2
The same Chief of the Medicine Service served as the proposing official on the 2013
and 2015 suspensions.
5
IAF, Tab 1 at 14-32. OSC closed its investigation of his complaint, and he timely
filed a Board appeal. ID at 7; IAF, Tab 1 at 35-36. The administrative judge
found that the appellant established jurisdiction and held a hearing. IAF, Tab 19;
Hearing Transcript (HT).
¶10 In the initial decision, the administrative judge found that the appellant’s
disclosures to OIG in 2011 and 2014 constituted protected activity as defined in
5 U.S.C. § 2309(b)(9)(C). ID at 7-8, 10-11; IAF, Tab 1 at 27-29, 31-32. She also
determined that his disclosures to agency management officials, regarding the
theft of his research identity 3 and Dr. S.D. being paid by the agency for work
when he was not present and working elsewhere, constituted disclosures of a
violation of law, but his remaining disclosures to agency managers lacked
specificity and detail. ID at 11-14. The administrative judge further found that
the appellant proved that his correspondence with OIG was a contributing factor
in the 2013 suspension but not the 2015 suspension. ID at 15-17. She also
concluded that the appellant’s whistleblowing disclosures to agency management
officials were a contributing factor in the 2013 and 2015 suspensions. ID
at 17-18. The administrative judge found, however, that the agency proved by
clear and convincing evidence that it would have suspended the appellant in 2013
and 2015 even if he “had not engaged in whistleblowing.” ID at 18-24. 4 She
therefore denied his request for corrective action. ID at 24.
¶11 The appellant has filed a 30-page petition for review with more than
300 pages of attachments. Petition for Review (PFR) File, Tab 4. The agency
has not filed a response. On review, the appellant essentially challenges the
administrative judge’s findings and conclusions. Id. at 6-35. He also appears to
3
The administrative judge reasonably characterized this assertion a s a theft of
intellectual property. ID at 12.
4
For clarity and consistency in this order, we refer to the appellant’s correspondence to
OIG as protected activity and his disclosures to agency management officials as
whistleblowing disclosures.
6
allege that the agency discriminated against him because of his race. Id.
at 11, 30.
¶12 The appellant also has filed a motion to submit an additional pleading. PFR
File, Tab 6. He proposes to submit the following materials, among other s, to
assist the Board: (1) the UCLA definition of the “In Resident” Joint
Appointment; (2) a copy of the “cooperative agreement” between the agency and
UCLA; and (3) “a dialog [sic] that features how the University and [agency]
research systems are functionally [intertwined] in a manner that creates inherent
conflicts of interest for the [agency] researchers who are not considered part of
the University.” Id. at 3. We deny the motion because we are not persuaded that
such additional documentation will assist us in resolving the legal issues that the
appellant raised on review. See 5 C.F.R. § 1201.115.
DISCUSSION OF ARGUMENTS ON REVIEW
¶13 The appellant may establish a prima facie case of retaliation for
whistleblowing disclosures and/or protected activity by proving by preponderant
evidence 5 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), 6 and (2) the whistleblowing disclosure or protected activity was a
contributing factor in the agency’s decision to take a personnel action against
him. 5 U.S.C. § 1221(e)(1); Webb v. Department of the Interior, 122 M.S.P.R.
248, ¶ 6 (2015). If the appellant establishes a prima facie case, then the agency is
given an opportunity to prove, by clear and convincing evidence, 7 that it would
have taken the same personnel actions in the absence of the whistleblowing
5
Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
6
Section 2302(b)(9)(A), (B), and (D) are not implicated by the facts of this appeal.
7
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.”
5 C.F.R. § 1209.4(e).
7
disclosure or protected activity. 5 U.S.C. § 1221(e)(1)-(2); Webb, 122 M.S.P.R.
248, ¶ 16.
We agree with the administrative judge that the appellant made whistleblowing
disclosures and engaged in protected activity.
¶14 The appellant does not challenge the administrative judge’s conclusion that
he engaged in protected activity when he communicated with OIG and he made
whistleblowing disclosures to agency management officials regarding the theft of
his research identity and Dr. S.D. being paid by the agency for work when he
was not present and working elsewhere. We affirm those conclusions herein.
¶15 The appellant challenges on review the administrative judge’s conclusion
that the following three disclosures to agency management officials lacked
specificity and detail and were not protected under 5 U.S.C. § 2302(b)(8):
(1) that agency funds and benefits were being diverted to UCLA; (2) that Dr. S.D.
was diverting agency resources to UCLA; and (3) that Dr. S.D. was taking credit
at UCLA for work performed at the agency. PFR File, Tab 4 at 14-19; ID
at 11-13. In reaching this conclusion, the administrative judge noted, among
other things, that the appellant failed to provide sufficient factual context for
these allegations, the agency and UCLA have an arrangement to share resources,
and the appellant did not identify any law, rule, or regulation that the agency
violated, nor did these allegations clearly implicate an identifiable violation of
law, rule, or regulation. ID at 12-13. She further found that these allegations
did not constitute preponderant evidence of an abuse of authority, gross
mismanagement, or a gross waste of funds by agency officials. ID at 13. 8
8
In the initial decision, the administrative judge made two references to the appellant’s
burden to make nonfrivolous allegations. ID at 8-9, 13-14. We assume that these
references were misstatements because she previously determined that the appellant
satisfied his burden to make nonfrivolous allegations of Board jurisdiction and a
hearing was held, IAF, Tab 19, and she correctly noted the proper burden of proof at the
merits stage, ID at 9; see, e.g., Panter v. Department of the Air Force, 22 M.S.P.R. 281,
282 (1984) (explaining that an adjudicatory error that is not prejudicial to the
appellant’s substantive rights provides no basis for reversal of the initial decision).
8
¶16 To remedy these deficiencies, the appellant discusses on review his research
expertise, the nature of the cooperative research agreement between the agency
and UCLA, and the impact of the agency’s decision to exclude him from various
funding applications (including the disparity of salary support between him and
Dr. S.D. and the professional opportunities that he was denied). PFR File, Tab 4
at 14-18. We have considered this information as well as his assertion that
because Dr. S.D. was on various “regulatory panels with falsified credentials (that
belonged to [the appellant]),” he was able to steer “many additional hundreds of
millions of dollars . . . towards dead-end medical research projects, and/or killed
others (like [the appellant’s]) that . . . had significant promise,” which in turn
“harmed the American public.” Id. at 18. However, we are not persuaded that
this additional information provides sufficient detail to constitute a disclosure of
a violation of law, rule, or regulation or any other category protected by 5 U.S.C.
§ 2302(b)(8). Therefore, we affirm the administrative judge’s conclusion th at
these disclosures are not protected.
¶17 Although not raised by the appellant on review, we modify the initial
decision to clarify the proper analytical standard by which to evaluate the
appellant’s communications with OIG. The administrative judge acknowledged
that the appellant’s communications to OIG are covered by 5 U.S.C.
§ 2302(b)(9)(C), which makes it a prohibited personnel practice to take or fail to
take a personnel action against an employee because of “disclosing information to
the Inspector General of an agency.” ID at 10-11. However, in the initial
decision, she also referenced the standard for general retaliation claims. ID
at 7-8, 10-11 (citing Murry v. General Services Administration, 93 M.S.P.R. 560,
¶ 6 (2003), for the proposition that the appellant must show that he engaged in
protected activity, the accused official knew of the protected activity, the adverse
employment action could have been retaliation under the circumstances, and there
was a genuine nexus between the alleged retaliation and the adverse employment
action). In Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 15 (2015), the
9
Board clarified that the standard for general retaliation claims is inapplicable to
claims that are subject to the burden-shifting framework set forth in 5 U.S.C.
§ 1221(e). As noted above, the appellant’s communications to OIG are covered
by 5 U.S.C. § 2302(b)(9)(C), and they are subject to the burden-shifting
framework set forth in 5 U.S.C. § 1221(e). See 5 U.S.C. § 1221(e)(1)-(2). We
therefore modify the administrative judge’s analysis, and we find that the
appellant’s communications with OIG in 2011 and 2014 constitute protected
activity under section 2302(b)(9)(C). 9
We modify the administrative judge’s contributing factor analysis , but we agree
with her conclusion that the appellant proved by preponderant evidence that his
whistleblowing disclosures and/or protected activity was a contributing factor in
the agency’s decision to suspend him in 2013 and 2015.
¶18 One way of proving that the appellant’s whistleblowing disclosure s and/or
protected activity was a contributing factor in the personnel action is the
“knowledge/timing test.” Alarid, 122 M.S.P.R. 600, ¶ 13 (citing Shibuya v.
Department of Agriculture, 119 M.S.P.R. 537, ¶ 22 (2013)). The
knowledge/timing test allows an employee to demonstrate that the whistleblowing
disclosure and/or protected activity was a contributing factor in a personnel
action through circumstantial evidence, such as evidence that the official taking
9
On review, the appellant indicates that he “reach[ed] out to [a] Congressional
representative,” and he includes correspondence to various Congressional
representatives. PFR File, Tab 4 at 22, 159-60, 169-70. He also provides evidence that
he filed with OSC a whistleblowing disclosure in late 2013 or early 2014, PFR File,
Tab 4 at 150-152, as well as an earlier prohibited personnel practice complaint in 2013,
for which he received a preliminary closure letter on September 6, 2013, PFR File,
Tab 4 at 146-49. He did not provide this information below, and the Board generally
will not consider evidence submitted for the first time with the petition for review
absent a showing that it was unavailable before the r ecord was closed despite the
party’s due diligence. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980).
The appellant has not made such a showing here. Moreover, this additional information
would not change our analysis based on our finding that, although the appellant made
whistleblowing disclosures and engaged in protected activity, as the administrative
judge found, the agency proved by clear and convincing evidence that it would have
suspended the appellant in 2013 and 2015 absent his whistleblowing disclosures and
protected activity.
10
the personnel action knew of the whistleblowing disclosure and/or protected
activity and that the personnel action occurred within a period of time such that a
reasonable person could conclude that the whistleblowing disclosure and/or
protected activity was a contributing factor in the personnel action. Alarid,
122 M.S.P.R. 600, ¶ 13; Carey v. Department of Veterans Affairs, 93 M.S.P.R.
676, ¶ 11 (2003); see 5 U.S.C. § 1221(e)(1).
¶19 The administrative judge found that the appellant proved that his
whistleblowing disclosures and protected activity were contributing factors in the
agency’s decision to suspend him in 2013 and 2015. ID at 15-18. The
administrative judge found that the concurring official was the only individual
involved in the 2013 suspension that had knowledge of his communications with
OIG, but he only knew about the appellant’s general complaints regarding
Dr. S.D. and research transgressions. ID at 15-18. Regarding the 2015
suspension, the administrative judge found that the proposing official and the
Chief of Staff who concurred in the ABI’s recommendation had some knowledge
that the appellant disclosed to agency management officials that Dr. S.D. stole his
research identity and/or was improperly paid for time worked at the agency . ID
at 17. 10
10
The administrative judge’s contributing factor analysis is confusing due, in part, to
the lack of clarity in the record regarding to whom, and when, the appellant made
whistleblowing disclosures and when the various agency officials involved in the 2013
and 2015 suspensions had knowledge of such disclosures. E.g., ID at 17 (noting that it
was “not entirely clear” when the proposing official had knowledge of the appellant’s
disclosures to agency management officials). The administrative judge’s confusion is
somewhat understandable because the appellant’s submissions do not clearly articulate
such information. For instance, he included with his OSC complaint his
correspondence with the Associate Chief of Staff-Research Service and the agency’s
Office of Research Oversight as discussed supra ¶ 4. However, it appears that the
appellant informed other agency management officials of his concerns regarding theft
of intellectual property and improper payments to Dr. S.D. E.g., IAF, Tab 17 at 30-31
(the Chief of the Medicine Service acknowledged in his deposition that he knew of the
appellant’s allegation that Dr. S.D. stole his intellectual property and received credit for
his work), Tab 22 at 64 (stating in a February 1, 2012 email to the Chief of Staff that
his “contributions have been usurped and misappropriated” and his “research identity
11
¶20 We modify the initial decision to find that additional agency officials
involved in the 2013 and 2015 suspension actions had knowledge of the
appellant’s whistleblowing disclosures and/or protected activity, but we agree
with the administrative judge’s overall conclusion that the appellant proved
contributing factor for each suspension. For instance, we have considered the
appellant’s assertion that the proposing official knew about his complaints to OIG
and agency managers. PFR File, Tab 4 at 12, 19. On review, the appellant
includes a May 24, 2013 email, which he sent to the proposing official and the
Chief of Staff, who concurred with the ABI recommendation, among others. Id.
at 60. Included with this email was his response to the 2013 notice of proposed
suspension, which was already in the record below. Id. at 61-66; IAF, Tab 22
at 36-41. In his response to the notice of proposed suspension, he stated that he
“began raising concerns with Federal Agencies (see 2011 VA-[Tech Transfer
Office (TTO)] and VA-OIG communications).” 11 IAF, Tab 22 at 38. The
proposing official testified that he did not know that the appellant went to OIG
until June or July 2015. HT at 79-80, 89 (testimony of G.B.). However, as one
of the recipients of the appellant’s May 24, 2013 email, we find that he had
knowledge of the appellant’s communication with OIG on or around this date.
We also conclude that the Chief of Staff, as a recipient of the May 24, 2013
email, had knowledge of the appellant’s communications with OIG. We modify
the initial decision accordingly. The record also reflects that the Chief of Staff
stolen”); HT at 142 (testimony of the Chief of Staff acknowledging that the appellant
raised the issue of whether Dr. S.D. was committing fraud by getting paid by the agency
when he was not working at the agency). We cannot discern whether such
communications are intended to constitute additional whistleblowing disclosures in this
IRA appeal. The lack of clarity in the record regarding to whom and when the appellant
made whistleblowing disclosures does not require further development of the record
because the existing voluminous record is sufficient to address the numerous arguments
raised by the appellant on review.
11
According to the appellant, the TTO is the agency’s Office of Intellectual Property.
HT at 21 (testimony of the appellant).
12
concurred with the ABI’s findings on or around October 9, 2014, and the Chief of
the Medicine Service proposed the second suspension on November 17, 2014.
IAF, Tab 4 at 127. The Board has held that a personnel action taken within
approximately 1-2 years of the whistleblowing disclosure(s) or protected activity
satisfies the knowledge/timing test. Mastrullo v. Department of Labor,
123 M.S.P.R. 110, ¶ 21 (2015). We further modify the initial decision to find that
the appellant’s communication with OIG was a contributing factor in the decision
to propose the 2015 suspension. 12
¶21 The appellant further contends that the concurring officials on the 2013 and
2015 suspensions did not appreciate the magnitude of the issues that he was
raising in his responses to the proposed agency actions. PFR File, Tab 4 at 21.
We understand this argument to mean that he informed these officials through his
oral and written replies that he had made disclosures to agency management
officials, but they failed to recognize the context of his assertions.
¶22 The concurring official on the 2013 suspension testified that he had no
knowledge of any complaints that the appellant made to agency management
officials. HT at 120 (testimony of C.S.). However, he acknowledged that he read
the appellant’s response to the notice of proposed suspension, which stated the
appellant’s belief that Dr. S.D. intended “to steal [his] intellectual property by
claiming it as his own,” that funds were “absconded” from his accounts and
redistributed elsewhere to Dr. S.D.’s benefit, and that he began raising concerns
with “Federal Agencies (see [agency]-TTO and [agency]-OIG communications).”
Id. at 120-24; IAF, Tab 22 at 37-38. The appellant’s response further indicated
that he had raised with the proposing official and other agency management
officials issues concerning his research environment and laboratory privileges,
and he stated that the proposing official’s actions were retaliatory. IAF, Tab 22
12
We are not persuaded that the proposing official had any knowledge of the
appellant’s communications with OIG prior to his decision to propose the
2013 suspension.
13
at 40. Viewing the appellant’s response as a whole, we find that the concurring
official had some knowledge of the appellant’s substantive whistleblowing
disclosures to agency management officials. We modify the initial decision
accordingly. Here, too, the 1-month span of time between the appellant’s
May 24, 2013 response to the notice of proposed suspension and the June 20,
2013 recommendation that the proposal should be sustained, IAF, Tab 22 at 10,
was sufficiently short to satisfy the timing component of the knowledge/timing
test. See DeLeonardo v. Equal Employment Opportunity Commission,
103 M.S.P.R. 301, ¶ 10 (2006) (finding that a performance evaluation issued
1 month after a disclosure was made satisfied the knowledge/timing test).
¶23 By contrast, we are not persuaded that the concurring official on the 2015
suspension had any knowledge of the appellant’s whistleblowing disclosures or
protected activity. Indeed, the concurring official on the 2015 suspension denied
having any such knowledge, and the documentary evidence supports her
testimony. HT at 162-63 (testimony of S.S.). Importantly, in the appellant’s
written response to the proposed suspension, he discussed his personal conflicts
with Dr. S.D. and the proposing official and his feeling that he was “betrayed” by
Dr. S.D., but he does not at any time discuss the substance of his whistleblowing
disclosures or his complaints to OIG. IAF, Tab 4 at 62-126.
¶24 Because we conclude that the appellant satisfied his prima facie burden to
show that his whistleblowing disclosures and/or protected activity was a
contributing factor in the agency’s decision to suspend him in 2013 and 2015, we
now turn to whether the agency proved by clear and convincing evidence that it
would have suspended him absent his whistleblowing disclosures or
protected activity.
14
We agree with the administrative judge that the agency proved by clear and
convincing evidence that it would have suspended the appellant in 2013 and 2015
absent his whistleblowing disclosures or protected activity. 13
¶25 In determining whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action absen t
whistleblowing disclosures and/or protected activity, the Board will consider 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 or who did not engage in protected
activity but who are otherwise similarly situated. See Carr v. Social Security
Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999); Alarid, 122 M.S.P.R. 600,
¶ 14.
¶26 The administrative judge assessed the relevant evidence, made credib ility
determinations, and concluded that the agency had “legitimate reasons” to
suspend the appellant in 2013 and 2015. ID at 19-23. Regarding the agency’s
motive to retaliate, the administrative judge acknowledged the appellant’s
assertion that the charges were fabricated because the Chief of the Medicine
Service and other agency management officials “favored” Dr. S.D., but she
concluded that this argument was not persuasive. ID at 23-24. The
administrative judge noted that the third Carr factor was not significant because
the record did not contain any evidence to show that the agency took similar
actions against employees who did not make whistleblowing disclosures or
13
In the administrative judge’s clear and convincing analysis, she stated that she would
“accept as true that the appellant’s protected disclosures were a contributing factor in
the decision to remove him.” ID at 18. We assume that this statement was a
typographical error because she previously found, as noted above, that the appellant
proved by preponderant evidence he made whistleblowing disclosures and engaged in
protected activity and such disclosures and activity were a contributing factor in the
agency’s decision to impose the 2013 and 2015 suspensions. ID at 10-18.
15
did not engage in protected activity but who were otherwise similarly situated.
ID at 24 & n.5. 14
¶27 The appellant admitted to most of the misconduct underlying the 2013
suspension, including calling another employee “inept,” failing to meet with the
Chief of the Medicine Service as directed, and, during a different meeting with
the Chief of the Medicine Service, raising his voice, pounding his fist on the
table, and slamming the door behind him. E.g., IAF, Tab 22 at 36-41; HT
at 54-56 (testimony of the appellant). He contends on review, however, that the
Chief of the Medicine Service (who was also the proposing official) provoked
him by calling him a liar and dismissing his complaint with the UCLA Academic
Senate regarding his allegations against Dr. S.D. PFR File, Tab 4 at 14. Even if
the appellant’s allegations of provocation were true, it would not change our view
of the strength of the agency’s evidence concerning the specifications that
involved other employees, and they do not explain his otherwise inappropriate
and unprofessional behavior described in the specifications invo lving the Chief of
the Medicine Service.
¶28 Regarding the 2015 suspension, the appellant asserts on review that the
underlying specifications “largely occurred off-site in 2013.” PFR File, Tab 4
at 23. The administrative judge addressed this argument in the initial decision,
noting that the delay was due to the agency’s decision to convene an independent
ABI, which sustained the misconduct and provided written recommendations in
July 2014. ID at 22-23; IAF, Tab 4 at 131-34. The appellant has not persuaded
us that the administrative judge erred when she concluded that the delay did not
harm him or alter the facts surrounding the alleged misconduct. ID at 22-23.
¶29 We have considered the appellant’s arguments regarding some of the
specifications of the inappropriate conduct charge, but we find that a different
14
The administrative judge acknowledged that one witness testified that other
physicians who were not whistleblowers have been suspended; however, she noted that
the particular misconduct was not identified. ID at 24 & n.5.
16
outcome is not warranted. For instance, the appellant argues on review that his
use of vulgar language to describe Dr. S.D. and UCLA personnel was “jovial and
impulsive” and not out of anger. PFR File, Tab 4 at 24 (emphasis omitted). This
argument is inconsistent with his admission that it was not appropriate to use such
vulgarity in the agency hospital and that he viewed Dr. S.D. “in this light.” IAF,
Tab 4 at 69-70; PFR File, Tab 4 at 24 (emphasis omitted). Additionally, the
appellant asserts that he never hit Dr. H.H., PFR File, Tab 4 at 24, but he
acknowledged in his response to the notice of proposed suspension that he “ patted
[Dr. H.H.’s] shoulder,” IAF, Tab 4 at 70. The appellant’s version of events is
contradicted by an email written by Dr. H.H. on the same day as the incident in
question, which described that the appellant hit him “very hard.” Id. at 137. The
appellant admitted below that he had a confrontation with Dr. R.R. because he
reacted to Dr. R.R.’s “open disrespect[]” for him in front of faculty and students.
Id. at 71, 126. Additionally, on review, he admits that he “informed [Dr. R.R.] in
measured tones that if he disrespected [the appellant] again in a public forum, that
there would be consequences.” PFR File, Tab 4 at 24 (emphasis in original).
Given the appellant’s admissions, we agree with the administrative judge that the
agency’s evidence to support the 2013 and 2015 suspensions was very strong.
¶30 Because we have modified the initial decision to find that additional
individuals had knowledge of the appellant’s whistleblowing disclosures and/or
protected activity, we also modify the administrative judge’s evaluation of the
second Carr factor, concerning the agency’s motive to retaliate. The appellant
asserts on review that he was “raising very significant issues regarding executive
integrity and fiscal impropriety that directly implicated high leve l [agency] and
[UCLA] officials [and accused them] of incompetence and corruption.” Id. at 13.
We agree. Given the serious nature of the appellant’s allegations to agency
management officials and OIG, coupled with the positions of authority occupied
by the individuals who were involved in the decision-making process concerning
17
the two suspensions, 15 we find that this Carr factor favors the appellant. See,
e.g., Whitmore v. Department of Labor, 680 F.3d 1353, 1370 (Fed. Cir. 2012)
(“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.”).
¶31 The appellant also asserts that the decision to convene the ABI was
improper, the ABI was presented with a “pre-determined narrative,” it did not
properly consider the evidence before it, and its conclusion that his research
activities should be curtailed is inconsistent with the charged offenses. PFR File,
Tab 4 at 26-27. We find these arguments unavailing. Indeed, there is no
persuasive evidence that any agency management official with knowledge of his
whistleblowing disclosures and/or protected activity influenced anyone on the
ABI, nor is there any evidence that any ABI members acted in retaliation for his
whistleblowing disclosures and/or protected activity.
¶32 Regarding the third Carr factor, the appellant contends that the
administrative judge “discount[ed]” the testimony of the deciding official on the
2013 suspension that “no physician was suspended without pay for weeks for
raising their voices, complaining about staff ineptitude, using vulgarities, or
asserting rights” that the appellant believed were in the agency’s best interests.
Id. at 7 (emphasis omitted), 20-21. The appellant does not provide a citation to
this testimony, and we could not independently find it. Based on our review of
the initial decision and the relevant evidence, however, it appears that there is
little, if any, evidence, to support this factor. To the extent evidence on Carr
factor 3 exists, the agency is required to come forward with all reasonably
15
We also include in our consideration the Chief of Staff, even though he was not a
proposing, concurring, or deciding official in either of the suspensions, because he
concurred with the ABI’s findings and forwarded those findings to the Chief of the
Medicine Service. IAF, Tab 4 at 130.
18
pertinent evidence; the failure to do so may be at the agency’s peril. Whitmore,
680 F.3d at 1374. Absent relevant comparator evidence, Carr factor 3 cannot
weigh in favor of the Government. Siler v. Environmental Protection Agency,
908 F.3d 1291, 1299 (Fed. Cir. 2018). We find, therefore, that Carr factor 3
weighs against the agency.
¶33 The court has also held that the Carr factors are “nonexclusive.” Miller v.
Department of Justice, 842 F.3d 1252, 1257 (Fed. Cir. 2016). Therefore, we have
considered other evidence discussed by the appellant on review, including, among
other things, the frequency with which he raised concerns to agency officials, the
“negligence (inaction)” of agency officials starting in 2004 -2005, the harm done
to his career and personal life as a consequence of his communications with OIG
and agency management officials, the relationship between the agency and
UCLA, and the complex personnel issues that arose as a result of this
relationship. E.g., PFR File, Tab 4 at 9-18, 22-35. However, given the serious
nature of the charged misconduct and the appellant’s admission that he engaged
in most of the charged misconduct, we are left with a strong belief that the agency
would have suspended the appellant in 2013 and 2015 absent his whistleblowing
disclosures and protected activity. See Carr, 185 F.3d at 1326 (noting that the
whistleblower protection statutes are not meant to protect employees from their
own misconduct).
The appellant’s other arguments on review do not warrant a different outcome.
¶34 We have considered the appellant’s remaining arguments, but we find them
unavailing. For instance, regarding his assertion that the agency’s actions were
the product of race discrimination, e.g., PFR File, Tab 4 at 11, the Board lacks the
authority to decide, in conjunction with an IRA appeal, the merits of an allegation
of prohibited discrimination, Fishbein v. Department of Health & Human
Services, 102 M.S.P.R. 4, ¶ 18 (2006).
¶35 We also have reviewed the 300 pages of documentation that the appellant
submitted on review. Many of these documents, such as email correspondence
19
between him and the Chief of the Medicine Service and between him and OIG,
his written response to the 2013 notice of proposed suspension, and his formal
complaint of faculty misconduct against Dr. S.D. that he sent to the UCLA
Academic Senate, e.g., PFR File, Tab 4 at 55-56, 61-66, 71-73, 96-134, are not
new evidence because they were already part of the record below, Meier v.
Department of the Interior, 3 M.S.P.R. 247, 256 (1980). As to the remaining
documents, the Board generally will not consider evidence submitted for the first
time with the petition for review absent a showing that it was unavailable before
the record was closed despite the party’s due diligence. Avansino v. U.S. Postal
Service, 3 M.S.P.R. 211, 214 (1980). The appellant has not made such a
showing. Even if we assumed for the purposes of our analysis that the appellant
included “new” evidence on review, we are not persuaded that such evidence is of
sufficient weight to warrant an outcome different from that of the initial decision .
Russo v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980).
Conclusion
¶36 For the reasons described herein, we find that the appellant prove d that he
made whistleblowing disclosures and engaged in protected activity and that these
whistleblowing disclosures and protected activity were a contributing factor in
the agency’s decision to suspend him in 2013 and 2015. We further find that the
agency proved by clear and convincing evidence that it would have suspended the
appellant in the absence of his whistleblowing disclosures or protected activity.
Therefore, we deny the appellant’s request for corrective action.
NOTICE OF APPEAL RIGHTS 16
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
16
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
20
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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
21
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, 10, and 11.
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 ou r website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their res pective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
22
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then yo u must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
23
of appeals of competent jurisdiction. 17 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
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, 10, and 11.
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
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
17
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
24
Contact information for the 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.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.