Opinion

Ronald Bajuscak v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Nov 8, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RONALD BAJUSCAK, DOCKET NUMBER

Appellant, DA-1221-15-0552-B-1

DEPARTMENT OF VETERANS DATE: November 8, 2022

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Ronald Bajuscak, Mesa, Arizona, pro se.

Chau Phan, Esquire, Salt Lake City, Utah, 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 remand initial decision,

which denied 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;

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 petiti oner’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. Except as expressly MODIFIED by

this Final Order to VACATE the administrative judge’s findings concerning

whether the agency met its clear and convincing burden , we AFFIRM the remand

initial decision.

BACKGROUND

¶2 The relevant background information, as recited in the remand initial

decision, is generally undisputed. On June 5, 2011, the agency appointed the

appellant to a dentist position in the excepted service under 38 U.S.C. § 7401(1).

Bajuscak v. Department of Veterans Affairs, MSPB Docket No. DA-1221-15-

0552-B-1, Remand File (RF), Tab 29, Remand Initial Decision (RID) at 2;

Bajuscak v. Department of Veterans Affairs, MSPB Docket No. DA-1221-15-

0552-W-1, Initial Appeal File (IAF), Tab 10 at 87-88. Immediately before his

June 5, 2011 appointment to the excepted service at the Department of Veterans

Affairs (VA), the appellant worked as a dentist under a career-conditional

appointment for the U.S. Navy, beginning on August 30, 2010. RID at 2, 28-29.

The Standard Form 50 (SF-50) documenting his appointment to the dentist

position in the excepted service at the VA on June 5, 2011, stated in the remarks

section “initial probationary period completed.” RID at 2; IAF, Tab 10 at 87.

The agency issued a corrected SF-50 on October 17, 2011, changing the remarks

section to clarify that the appellant’s excepted-service appointment was subject to

the completion of a 2-year probationary period beginning on June 5, 2011. RID

at 2; IAF, Tab 10 at 86. The agency described the change as a required correction

because dentists and doctors appointed to the excepted service under Title 38 of

the United States Code are required to serve a 2-year probationary period, and the

appellant’s previous appointment was not to a position in the excepted service.

RID at 21, 29-30; IAF, Tab 9 at 11; see 38 U.S.C. § 7403(a)(2)(A)-(B), (b)(1).

¶3 On October 27, 2011, the appellant’s supervisor rated him as unsatisfactory

for the period of June 6 through September 30, 2011, commenting that he “does

not have potential for advancement to higher clinical and/or administrative

positions.” RID at 2-3. On November 9, 2011, the Acting Medical Center

Director detailed the appellant to “voluntary service” and assigned him to

nonpatient care duties, which included pushing wheelchairs and hospital beds.

RID at 3. On November 17, 2011, the Acting Chief of Staff recommended a

summary suspension of the appellant’s clinical privileges, pending the results of a

Summary Review Board. Id. Her recommendation was based on findings from a

review of 31 medical charts and adopted on that same day by a 3-member

Professional Standards Board (PSB). Id.; RF, Tab 22 at 181-82. On

November 21, 2011, the Acting Medical Center Director issued a letter removing

the appellant’s clinical privileges pending a comprehensive review of allegations

that aspects of his clinical practice did “not meet the accepted stan dards of

practice and potentially constitute[d] an imminent threat to patient welfare.” RID

at 3; RF, Tab 22 at 184. Within a week of receiving the letter removing his

clinical privileges, the appellant initiated contact with the agency’s equal

employment opportunity counselor on November 29, 2011, alleging that his

supervisor sexually harassed him and retaliated against him when he rejected her

advances and began seeking employment elsewhere. RID at 3-4.

¶4 On January 6, 2012, the PSB reviewed the appellant’s conduct and

performance and concluded that he failed to meet the standards of care expected

of agency dentists. RID at 5; IAF, Tab 9 at 57-58. The PSB recommended

terminating the appellant during his probationary period based on its summary

review of 31 patient records submitted by the appellant’s supervisor, the Chief of

Dental Service; progress notes and x-rays; and the written and oral responses of

the appellant. RID at 5; IAF, Tab 9 at 57. The Acting Chief of Staff agreed with

the PSB recommendation to terminate the appellant, and the Acting Medical

Center Director approved the recommendation and issued a letter terminating the

appellant effective January 20, 2012, during his 2-year probationary period. RID

at 5; IAF, Tab 9 at 15, 19.

¶5 After his termination, the appellant filed a complaint with the Office of

Special Counsel (OSC) (OSC File No. MA-12-2402), alleging that he was

subjected to the following retaliatory personnel actions: (1) his supervisor had

changed his SF-50 from permanent to probationary employment; (2) he received

an unsatisfactory midterm evaluation; (3) he was detailed to voluntary service;

(4) his dentist privileges were suspended; (5) his transfer to another facility was

rescinded; and (6) he was ultimately removed from his position. RID at 6; IAF,

Tab 18 at 44. On July 23, 2012, OSC informed the appellant that i t was closing

its investigation into whether a violation of 5 U.S.C. § 2302(b)(8) occurred and

that he could seek corrective action from the Board. RID at 6; IAF, Tab 18

at 45-46.

¶6 In 2015, the appellant filed another OSC complaint (OSC File No. MA-14-

4527), in which he alleged that the agency improperly required him to serve a

new probationary period and terminated him in retaliation for whistleblowing . 2

RID at 6-7, 11; IAF, Tab 18 at 47-48. On April 30, 2015, OSC informed the

appellant that it was closing its inquiry into his complaint. RID at 7, 11; IAF,

The record does not contain a copy of the OSC complaints filed by the appellant in

OSC File No. MA-14-4527 or in OSC File No. MA-12-2402. RID at 11 n.4.

Tab 18 at 47-48. Having exhausted his administrative remedy before OSC, the

appellant filed the instant IRA appeal with the Board, and he requested a hearing.

RID at 7, 11-12; IAF, Tab 1. The administrative judge dismissed the appeal as

untimely filed, but, on review, the Board found a sufficient basis to waive the

filing deadline and remanded the case for further adjudication. Bajuscak v.

Department of Veterans Affairs, MSPB Docket No. DA-1221-15-0552-W-1,

Remand Order (Apr. 29, 2016).

¶7 On remand, the administrative judge found that the appellant met his burden

of establishing that the Board has jurisdiction over his IRA appeal because he

exhausted his administrative remedies before OSC and made nonfrivolous

allegations that he made at least one protected disclosure that was a contributing

factor in the agency’s decision to take a personnel action. 3 RID at 12-14. After

holding a hearing, the administrative judge issued a remand initial decision

denying the appellant’s request for corrective action. RID at 41-42; RF, Tab 28,

Hearing Compact Disc. The administrative judge found that the appellant made

protected disclosures to a human resources (HR) officer in September 2011 when

he disclosed that his supervisor manipulated and threatened her subordinates and

that she used an illegal leave tracker form in violation of the Federal Service

Labor-Management Relations Act. RID at 17-21. 4 The administrative judge

further found that the appellant did not meet his burden of proving that any of his

protected disclosures was a contributing factor in any of the six alleged personnel

actions. RID at 13-14, 27-36. The administrative judge also found that,

The administrative judge also found that the Board lacks jurisdiction over an appeal of

his termination under 5 U.S.C. chapter 75 because appointees under 38 U.S.C.

§ 7401(1) are specifically excluded from the definition of “employee” under 5 U.S.C.

§ 7511. RID at 8. The administrative judge found, moreover, that the other personnel

actions that the appellant alleged on appeal were not adverse actions directly appealable

to the Board, and his allegations could only be reviewed by the Board in an IRA appeal.

Id. The parties do not dispute these findings on review, and we affirm them.

The administrative judge found that the appellant’s other alleged disclosures were not

protected whistleblowing as described in 5 U.S.C. § 2302(b)(8). RID at 14-27.

assuming arguendo that the appellant had demonstrated that his disclosures were

contributing factors in the actions taken against him, the agency proved by clear

and convincing evidence that it would have taken the personnel actions absent the

protected disclosures. RID at 36-41.

¶8 The appellant has filed a petition for review. Bajuscak v. Department of

Veterans Affairs, MSPB Docket No. DA-1221-15-0552-B-1, Remand Petition for

Review (RPFR) File, Tab 1. The agency has responded in opposition to his

petition, and the appellant has replied. RPFR File, Tabs 4-5.

DISCUSSION OF ARGUMENTS ON REVIEW

¶9 The appellant submits the following one-paragraph argument in support of

his petition:

Numerous documents were submitted including specific actions

against me with timelines from information recorded on the very day

it occurred. During my hearing many specific occurences [sic] with

timelines submitted on documents were not considered in my

opinion. The entire timing of all the falsifications of my hiring

documents, being placed in charge and then suddenly being removed

clinically’s [sic] timing is proof within itself of whistleblowing

retaliation by the Veterans Hospital. Nationally, this attack on

whistleblowers has been exposed, as I went through, and again the

system “being broken” is trying to deny me my rights. I want a

non-biased review of all my submitted documents be cross examined

paying particular notice to dates of actions against me and the timing

of final actions taken. I know numerous issues were not expressed

by me during the hearing and was and am shocked that such

aggressive actions of retaliation are considered okay!!

RPFR File, Tab 1 at 4. We construe the appellant’s arguments as challenging the

administrative judge’s finding that his protected disclosures were not a

contributing factor in the following personnel actions: alter ing his SF-50 to

require the completion of a 2-year probationary period and his termination. 5 In

The appellant does not appear to challenge the administrative judge’s other findings

concerning the alleged protected disclosures and personnel actions. We affirm those

findings for the reasons stated in the initial decision. RID at 14-27.

his reply brief, the appellant further asserts that he has additional witnesses to

testify against the agency. RPFR File, Tab 5 at 3. For the following reasons, we

find that the administrative judge properly found that the appellant failed to prove

by preponderant evidence that his disclosures were a contributing factor in any of

the personnel actions.

¶10 When, as here, an appellant exhausts his administrative remedy with OSC

and establishes the Board’s jurisdiction in an IRA appeal, the appellant then must

establish a prima facie case of whistleblower retaliation by, as relevant here,

proving by preponderant evidence that he made a protected disclosure as

described in 5 U.S.C. § 2302(b)(8) that was a contributing factor in a personnel

action taken against him. 6 See Lu v. Department of Homeland Security,

122 M.S.P.R. 335, ¶ 7 (2015). One way of proving that a disclosure was a

contributing factor in a personnel action is the knowledge/timing test. Shannon v.

Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 23 (2014). Under that test,

an appellant can prove the contributing factor element through evidence that the

official taking the personnel action knew of the whistleblowing disclosure and

took the personnel action within a period of time such that a reasonable person

could conclude that the disclosure was a contributing factor in the personnel

action. Id. If the appellant makes a prima facie showing that his protected

disclosure was a contributing factor in the agency’s personnel action, the burden

shifts to the agency to prove by clear and convincing evidence that it would have

taken the same personnel action in the absence of the protected disclosure. Lu,

122 M.S.P.R. 335, ¶ 7.

The Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L.

No. 112-199, 126 Stat. 1465, section 101(b)(1)(A) expanded the grounds for covered

individuals to bring an IRA appeal with the Board to include reprisal for classes of

protected activity described at 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), and (D). All of

the alleged retaliatory acts at issue in this appeal occurred prior to the December 27,

2012 effective date of the WPEA, and thus this expanded grant of jurisdiction does not

apply here. RID at 9; see Rebstock Consolidation v. Department of Homeland Security,

122 M.S.P.R. 661, ¶¶ 7-8 (2015).

¶11 The remand initial decision reflects—concerning the agency officials who

took the alleged actions—that the administrative judge considered the elapsed

time between their having had any actual or constructive notice of the appellant’s

protected disclosures and their taking the personnel actions, but she found no

evidence that the officials involved in correcting the appellant’s SF-50 and

terminating him had actual or constructive knowledge of his September 2011

protected disclosures. RID at 27-30, 34-36. Thus, she found no contributing

factor under the knowledge/timing test.

¶12 The administrative judge also recognized that, if the appellant failed to

satisfy the knowledge/timing test, the Board should consider other evidence, such

as that pertaining to the strength or weakness of the agency’s reasons for taking

the personnel action, whether the whistleblowing was personally directed at the

proposing or deciding officials, and whether those individuals had a desire or

motive to retaliate against the appellant. RID at 27-28; see Stiles v. Department

of Homeland Security, 116 M.S.P.R. 263, ¶¶ 23-24 (2011). The administrative

judge found that the officials involved in taking the personnel actions again st the

appellant had strong, nonretaliatory motives for the personnel actions taken,

including changing his SF-50 to require his completing a 2-year probationary

period and terminating him during his probationary period. RID at 21, 28-30,

34-36. Moreover, it is undisputed that the appellant’s whistleblowing was not

personally directed at the HR specialist who signed the corrected SF-50 requiring

him to complete a 2-year probationary period, the PSB members that

recommended his termination, or the Acting Medical Center Director who

terminated him. RID at 21. Accordingly, the administrative judge found that the

appellant failed to establish a prima facie case of whistleblower retaliation by

proving that his protected disclosure was a contributing factor in a personnel

action taken against him. RID at 27-36. The appellant’s general arguments on

review do not persuade us that there were any errors in the administrative judge’s

contributing-factor analysis. See Tines v. Department of the Air Force,

56 M.S.P.R. 90, 92 (1992) (finding that a petition for review must contain

sufficient specificity to enable the Board to ascertain whether there is a serious

evidentiary challenge justifying a complete review of the record).

¶13 To the extent the appellant argues generally that certain documents related

to his whistleblowing disclosures were not considered or mentioned, RPFR File,

Tab 1 at 4, it is well established that an administrative judge’s failure to mention

all of the evidence of record does not mean that she did not consider it in reaching

her decision. Marques v. Department of Health & Human Services , 22 M.S.P.R.

129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).

¶14 Although the appellant asks the Board to review all of the documents that

he submitted on appeal to take notice of “the dates of actions against [him] and

the timing of final actions taken,” we find that his petition for review is not

sufficiently specific to enable the Board to ascertain whether there is a serious

evidentiary challenge justifying a complete review of the record. See Tines,

56 M.S.P.R. at 92; Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133

(1980) (determining that, before the Board will undertake a complete review of

the record, the petitioning party must explain why the challenged fac tual

determination is incorrect and identify the specific evidence in the record which

demonstrates the error), review denied, 669 F.2d 613 (9th Cir. 1982) (per

curium).

¶15 For the foregoing reasons, we will not disturb the administrative judge’s

explained finding that the appellant failed to prove that his protected disclosures

were a contributing factor in the agency’s decision to take any of the contested

personnel actions. RID at 27-36. Because we agree with the administrative

judge’s finding that the appellant failed to prove by preponderant evidence that

his protected disclosures were a contributing factor in the actions taken, it is

unnecessary to determine whether the agency proved by clear and convincin g

evidence that it would have taken the actions at issue in the absence of the

disclosure. See Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19

n.10 (2014), aff’d, 623 F. App’x 1016 (Fed. Cir. 2015). Accordingly, we vacate

the administrative judge’s findings concerning whether the agency met its clear

and convincing burden.

¶16 We have considered the appellant’s assertion on review that he had

numerous witnesses who could have testified at the hearing on his appeal but he

did not want to overwhelm the proceeding. RPFR File, Tab 5 at 3. We also have

considered his contention that unnamed individuals, who have been “fired or

forced to resign from this same VA medical center,” could provide new testimony

against the agency. Id. However, the appellant offers no specific evidence or

argument to explain what the unidentified potential witnesses might testify about

that would have changed the outcome of his appeal. Moreover, the appellant

waited until after the record closed below and the initial decision was issued to

come forward with these unnamed witnesses, and he cannot now complain that

these witnesses were not allowed to testify.

¶17 The Board 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. See Avansino v. U.S. Postal Service,

3 M.S.P.R. 211, 214 (1980); 5 C.F.R. § 1201.115. In this case, the appellant has

failed to establish that he could not reasonably have known that these alleged

witnesses had information relevant to his appeal prior to the close of the record

below or that he could not find the same or similar information elsewhere. See

Pangarova v. Department of the Army, 28 M.S.P.R. 652, 656 (1985) (finding that

an affidavit from a witness who had previously not come forward, about a subject

that the appellant knew was at issue, was not “new” evidence when he failed to

show that he could not find the same or similar information elsewhere); Williams

v. General Services Administration, 22 M.S.P.R. 476, 479 (1984) (finding that

affidavits from witnesses known to the agency but previously unwilling to testif y

were not “new” evidence), aff’d, 770 F.2d 182 (Fed. Cir. 1985). We therefore

find that the appellant’s assertions on review do not provide a sufficiently sound

reason for overturning the thorough, well-reasoned findings stated by the

administrative judge in the remand initial decision.

NOTICE OF APPEAL RIGHTS 7

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

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).

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.

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

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.

(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 clai m 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 respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

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 you 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 descri bed 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 of appeals of

competent jurisdiction. 8 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