Neal Elkin v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NEAL E. ELKIN, DOCKET NUMBER

Appellant, SF-1221-20-0387-W-1

v.

DEPARTMENT OF VETERANS DATE: July 18, 2022

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Neal E. Elkin, Ann Arbor, Michigan, pro se.

Coleen L. Welch, Martinez, 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

2

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 th e 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 As further detailed throughout the record and initial decision, the appellant

began working as a primary care physician for the agency’s Ukiah Community

Based Outpatient Clinic (CBOC) in March 2016. Initial Appeal File (IAF),

Tab 62, Initial Decision (ID) at 2. He quickly and consistently found the

workload unmanageable, and he regularly clashed with nursing st aff and

managers alike. ID at 3-10. In September 2016, just 6 months into his time with

the agency, the appellant first expressed his intent to resign. ID at 10. Although

he would later change his mind about resigning, repeatedly, he continued to have

difficulties with his workload, and his relationships with other employees

continued to deteriorate. ID at 10-22. In January 2018, the appellant chose to

stop working at the clinic, and he went on extended leave until he resigned almost

2 years later. ID at 22-24.

¶3 In the instant appeal, the appellant alleged that he was subject to

whistleblower reprisal. IAF, Tab 1. After developing the record and holding the

requested hearing, the administrative judge denied the appellant’s request for

3

corrective action. IAF, Tabs 49, 51, 53 (Hearing Recording, Days 1-3

(HR1-HR3)); ID at 1. She addressed the following sets of disclosures, activities, 2

and personnel actions:

Disclosure 1 – inaccurate blood pressure readings,

Disclosure 2 – lack of clinic supplies,

Disclosure 3 – prior lapses in patient care,

Disclosure 4 – inadequate or improper nursing support,

Disclosure 5 – violation of conduct rules by another physician,

Disclosure 6 – improper handling of a cancer patient’s complaint,

Disclosure 7 – lapse in building security,

Disclosure 8 – improper appointment to an Administrative Investigative Board

(AIB), and

Disclosure 9 – improper workload.

Activity 1 – contact with the Office of Accountability and Whistleblower

Protection (OAWP),

Activity 2 – contact with the agency’s Office of Inspector General (OIG), and

Activity 3 – contact with an agency AIB.

Personnel Action 1 – a November 2017 admonishment,

Personnel Action 2 – a hostile work environment,

Personnel Action 3 – a December 2017 letter changing work conditions, and

Personnel Action 4 – an involuntary resignation.

2

The administrative judge explained that the appellant never provided a concise list of

his alleged disclosures and activities. ID at 26. For that reason, they are described

differently throughout the pleadings below and on review. For the sake of simplicity

and clarity, we are ordering the sets of disclosures, activities, and personnel actions in

the same way as the initial decision, while also numbering them and providing a more

succinct description of each.

We separately note that there is significant overlap amongst the disclosures and

activities the appellant identified. For example, the appellant engaged in extensive

communications about his workload, which the administrative judge analyzed und er

both the protected disclosure and protected activity provisions of the whistleblower

statute, depending on the recipient. ID at 43, 48. Further complicating matters, some

of the appellant’s communications involved multiple matters, such that the

administrative judge at times considered a single communication under more than one

category of disclosures. For example, the administrative judge found that one email

contained a protected disclosure about a prior lapse in patient care but additional

complaints in the email about the appellant’s workload were not protected. ID at 35, 44

(discussing IAF, Tab 38 at 33-34).

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ID at 26-30. Of these, the administrative judge found that the appellant met his

burden of proving that at least a portion of Disclosures 3, 5, 7, and 8 were

protected, as were Activities 1, 2, and 3, but he failed to do the same with his

other disclosures. ID at 31-48. The administrative judge also found that the

appellant met his burden of proving the existence and coverage of Personnel

Actions 1 and 3 under the whistleblower statute but not Personnel Actions 2

and 4. ID at 48-66.

¶4 The administrative judge next found that the appellant proved that

Disclosures 3, 5, 7, and 8 were a contributing factor in Personnel Actions 1 and 3,

but he failed to do the same for Activity 1, 2, or 3. ID at 66-68. Finally, upon

shifting the burden for only those matters that remained, the administrative judge

found that the agency proved that it would have taken the same personnel actions

in the absence of the appellant’s protected disclosures. ID at 68 -77.

¶5 The appellant has filed a petition for review that primarily presents

arguments about the disclosures the administrative judge found not protected.

Petition for Review (PFR) File, Tab 5. The agency has filed a response , and the

appellant has replied. PFR File, Tabs 7, 12. 3

¶6 After establishing jurisdiction in an IRA appeal, an appellant has the burden

of proving by preponderant evidence that: (1) he made a protected disclosure

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

under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and (2) the disclosure or

3

With his reply, the appellant attached hundreds of pages of unexplained evidence.

PFR File, Tab 12 at 31-290. We have not considered this evidence because the

appellant presented no basis for us to conclude that it is both new and material. Russo

v. Veterans Administration, 3 M.S.P.R. 345, 349 (1980) (recognizing that the Board will

not grant a petition for review based on new evidence absent a showing that it is of

sufficient weight to warrant an outcome different from that of the initial decision);

Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980) (recognizing that,

pursuant to 5 C.F.R. § 1201.115, the Board generally will not consider evidence

submitted for the first time with a petition for review absent a showing that it was

unavailable before the record was closed before the administrative judge despite the

party’s due diligence).

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

to take a personnel action as defined by 5 U.S.C. § 2302(a). Salerno v.

Department of the Interior, 123 M.S.P.R. 230, ¶ 5 (2016). If the appellant meets

this burden, the agency is given an opportunity to prove, by clear and convinci ng

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

protected disclosure or activity. Id.

The appellant failed to prove that Disclosures 1, 2, 4, 6, or 9 were protected under

section 2302(b)(8).

¶7 The vast majority of the appellant’s petition for review consists of

arguments that the sets of disclosures we identified as Disclosures 1, 2, 4, 6,

and 9 were protected, and the administrative judge erred by finding otherwise. 4

PFR File, Tab 5 at 5. To address those arguments, we first note the proper

analytical framework for determining whether a disclosure is protected.

¶8 A protected disclosure is one that the appellant reasonably believed

evidenced gross mismanagement, a gross waste of funds, an abuse of authority, a

substantial and specific danger to public health or safety, or any violation of a

law, rule, or regulation. 5 U.S.C. § 2302(b)(8)(A). The disclosure must have

been specific and detailed, not a vague allegation of wrongdoing regarding broad

or imprecise matters. Rzucidlo v. Department of the Army, 101 M.S.P.R. 616,

¶ 13 (2006). The proper test for determining whether an employee had a

reasonable belief that his disclosures revealed misconduct prohibited under the

whistleblower statute is the following: Could a disinterested observer with

knowledge of the essential facts known to and readily ascertainable by the

4

As alluded to previously, the appellant’s description and numbering of these

disclosures is somewhat different than the description and numbering we will use in this

decision. For example, that which we have described as Disclosure 2 – lack of clinic

supplies, the appellant describes as a disclosure that the agency was running out of

nebulizers for patients with difficulty breathing. PFR File, Tab 5 at 5. That which we

have described as Disclosure 6 – improper handling of a cancer patient’s complaint, the

appellant describes as a disclosure of delayed care for the patient. Id.

6

employee reasonably conclude that the actions of the government evidence

wrongdoing as defined by the whistleblower statute? Id., ¶ 14.

¶9 The types of protected disclosures most relevant to the appellant’s

arguments on review are those concerning an abuse of authority or a substantial

and specific danger to public health or safety. Regarding the former, the Board

has explained that an abuse of authority is an arbitrary or capricious exercise of

power by a federal official or employee that adversely affects the rights of any

person or that results in personal gain or advantage to himself or to preferred ,

other persons. Linder v. Department of Justice, 122 M.S.P.R. 14, ¶ 15 (2014).

Regarding the latter, the Board has explained that disclosures about a danger to

the public must be both substantial and specific to be protected. Schoenig v.

Department of Justice, 120 M.S.P.R. 318, ¶ 10 (2013). Factors to be considered

in determining whether a disclosed danger is sufficiently su bstantial and specific

to be protected include the likelihood of harm, when the alleged harm may occur,

and the potential consequences of the harm. Id. Disclosure of an imminent event

is protected, but disclosure of a speculative danger is not. Id. To illustrate with a

relevant example, the Board once found that an employee’s disclosures were

protected where he reasonably believed he was disclosing systemic problems

regarding inadequate patient care with specific examples of misdiagnoses and

misdirection of patients. Parikh v. Department of Veterans Affairs,

116 M.S.P.R. 197, ¶¶ 12, 15-23 (2011). With that background in mind, we now

turn to the sets of disclosures the appellant reasserts on review.

Disclosure 1 – inaccurate blood pressure readings

¶10 The appellant made disclosures about the accuracy of blood pressure

readings to the individual who served as Administrative Director and Nursing

Supervisor (CBOC Manager) on at least two occasions, in April and

September 2016. IAF, Tab 48 at 4. According to the appellant, his concern

began on his very first day working for the clinic and continued throughout the

7

time that followed because he sometimes found that a patient’s blood pressure

was recorded as “lower and closer to normal” than he found when checking a

patient’s blood pressure himself. E.g., IAF, Tab 12 at 6-7, Tab 38 at 15-16. The

administrative judge concluded that the appellant failed to meet his burden for

this set of disclosures. ID at 31-32.

¶11 On review, the appellant argues that this set of disclosures was protected

because it revealed a substantial and specific threat to public health and safety.

PFR File, Tab 5 at 6-10. To do so, he asserts that at least some of the blood

pressure inconsistencies he found were far more extreme and dangerous than

should be expected. Id. He directs us to a document dated September 15, 2016,

at 3:00 a.m. Id. at 6 (referencing IAF, Tab 38 at 112-14). This document states

that the appellant had seen a patient and measured his blood pressure as 200, even

though the patient’s medical record listed his blood pressure as 118. IAF, Tab 38

at 112-14. However, the document reads like a diar y entry, written when the

appellant was unable to sleep due to the stress of his job. Id. It is not addressed

to anyone, and it does not provide further information. Id. For example, the

document does not identify the patient, the source of the lower b lood pressure

reading, any suspected wrongdoing, or any indication that the appellant disclosed

this specific instance to someone with the agency. Id.

¶12 We found additional evidence from later that same day, where the appellant

did email the CBOC Manager about how he wanted nurses to measure blood

pressure, and he mentioned a “major error” from a couple of days earlier.

IAF, Tab 38 at 119-23. However, the “major error” was not further described.

When the CBOC Manager asked for the patient’s name, the ap pellant did not

provide that name; he simply stated that the patient was “doing fine and his BP is

under control.” Id. at 120. The appellant further stated that he does his own

recheck of blood pressures, “so [he is] not concerned that [he will] miss any thing

at this point,” but he did not know whether others did the same . Id. In a final

pair of follow-up emails, the CBOC Manager once again asked for the patient’s

8

name, but the appellant’s response provided neither the patient’s name nor the

attending nurse’s name. Id. at 119. The appellant indicated that he would rather

discuss the matter in person. Id.

¶13 Here, it is not apparent that the appellant reasonably believed that he was

disclosing anything other than changes in patients’ blood pressure. Although the

appellant’s concerns about the clinic nursing staff’s blood pressure measurements

began on his very first day seeing patients, and his first disclosure about the same

occurred just a couple weeks later, id. at 15, he did not identify any particular

impropriety that caused the alleged differences in blood pressure readings, any

particular nurse associated with the readings, or any particular suspicion he may

have had about the issue. E.g., ID at 31; IAF, Tab 12 at 6-7, Tab 38 at 15-16.

¶14 As the administrative judge recognized, several agency witnesses described

how the measuring and recording of blood pressure was a routine task, for which

staff followed the agency’s standard operating procedures. ID at 31 -32. These

witnesses further testified that increases in blood pressure readings between

an initial consult with a nurse and the eventual exam with the appellant would not

be surprising under the circumstances because patients routinely had to wait a

long time for the appellant. ID at 32.

¶15 The appellant’s petition remains devoid of any substantive and persuasive

explanation for why he would have believed that he was disclosing the kind of

wrongdoing covered by section 2302(b)(8). PFR File, Tab 5 at 6-10.

We recognize and appreciate the appellant’s suggestion that one specific set of

blood pressure readings that he alluded to, from 118 to 200, is both too big to be

accurate and potentially life threatening. PFR File, Tab 5 at 6 -10; IAF, Tab 38

at 112-14. But, the facts surrounding those alleged readings or any other “major

errors” remain unexplained by the appellant. Although it is certainly within the

realm of possibility that nursing staff was making dangerous error s regarding

blood pressure readings, the record does not show that the appellant reasonably

believed that to be the case.

9

Disclosure 2 – lack of clinic supplies

¶16 The administrative judge next considered a set of disclosures about the

clinic’s supplies, particularly its supply of nebulizers and peak flow meters.

E.g., ID at 33-34; IAF, Tab 48 at 4. On review, the appellant only presents

arguments about the nebulizers. He reasserts that he made a protected disclosure

by twice reporting to the CBOC Manager that the clinic had an inadequate

inventory of nebulizers in May and October 2016. PFR File, Tab 5 at 11-15.

According to the appellant, this set of disclosures is protected because it revealed

a substantial and specific threat to public health and safety. Id.

¶17 As alluded to in the initial decision, the clinic did have to adjust its on-hand

inventory of nebulizers, from two to five or more, to accommodate the appellant’s

treatment preferences. ID at 33; e.g., IAF, Tab 38 at 140. However, documentary

evidence and witness testimony indicated that the change was needed becau se the

appellant’s use of nebulizers was different than most; both before and after the

appellant’s time at the clinic, the clinic rarely dispensed nebulizers because all

the other clinicians preferred inhalers. ID at 33. Noting this, the administrative

judge concluded that the appellant failed to prove that he had a reasonable belief

of any substantial and specific threat regarding the supply of nebulizers because

the appellant could and did provide patients with an adequate alternative. Id.

¶18 On review, the appellant acknowledges that he oftentimes provided

nebulizers as a “back-up” treatment for patients that typically use an inhaler.

PFR File, Tab 5 at 11. However, he argues that nebulizers and inhalers may not

be interchangeable for some patients with extenuating circumstances.

Id. at 12-15.

¶19 We have considered the appellant’s arguments but do not find them

persuasive. Although the appellant spoke with the CBOC Manager at least twice

about the clinic’s supply of nebulizers to provide for in -home use, e.g., IAF,

Tab 48 at 4, the appellant has described only one patient that seems to have been

10

impacted by the clinic not maintaining a larger supply on hand, PFR File, Tab 5

at 12; IAF, Tab 38 at 23-24. But, that individual already had an inhaler; he used

the clinic’s nebulizer during his encounter with the appellant ; and he received his

own nebulizer for home use within 10 days, via mail. IAF, Tab 38 at 23-25, 137.

The appellant has not presented any basis for us to conclude that this patient , or

any other, was in any specific and substantial danger from the clinic’s inventory

management.

¶20 We acknowledge the appellant’s argument that there may be times when

an inhaler and nebulizer are not interchangeable f or some patients. However,

the appellant has done little more than present conclusory assertions that are not

persuasive. The appellant has not directed us to anything in the record

documenting the prevalence of such patients or the surrounding circumstances.

Those details are particularly relevant since the record before us suggests that the

clinic always had a nebulizer to use in the office, it typically had nebulizers to

provide for in-home use, and other facilities or providers were “close by” and

“available to help,” if needed. E.g., id. at 23, 139-40. For that reason,

the appellant has not proven by preponderant evidence that he reasonably

believed his disclosures about the agency’s inventory of nebulizers revealed

a substantial and specific threat to public health and safety or any othe r category

of wrongdoing protected under section 2302(b)(8).

Disclosure 4 – inadequate or improper nursing support

¶21 In the initial decision, the administrative judge described and considered

several instances of the appellant raising questions or concerns a bout nursing

support, but she found none protected. ID at 36-39. On review, the appellant has

narrowed his arguments about this set of disclosures by referring only to his

11

communications about the availability of nurses from 12:00 -1:00 p.m. and after

4:30 p.m. 5 PFR File, Tab 5 at 36-37.

¶22 In one associated email, the appellant claimed that five nurses were at lunch

and the one that remained was with a patient, resulting in the appellant tending to

a homeless patient in the waiting room, looking unwell, possibly because his

diabetes was uncontrolled. IAF, Tab 39 at 42-43. A few days later, the appellant

reiterated this concern when he needed and received lunchtime nursing support

but was told not to expect lunchtime nursing services to always be available.

Id. at 44. In another email, the appellant reported that he was told nursing

services may not always be available after 4:30 p.m. either, but he found that

unacceptable because his patients were regularly scheduled to come in as late as

3:30 p.m. and the clinic accepted walk-ins until 4:00 p.m. Id. at 275.

¶23 While addressing these disclosures, the administrative judge conside red

testimony from the CBOC Manager, where she described how patients should not

ordinarily be in the clinic during the lunch hour or after 4:30 p.m. but a nurse

would be available if there was a critical need. ID at 37 -38. She found this

testimony credible. Id. The administrative judge further found that the record

was filled with evidence of the appellant being behind schedule and therefore

working outside the clinic’s normal operating hours, but the appellant failed to

prove that a reasonable person would believe that his complaints about the

clinic’s schedule not matching his own were protected. ID at 38.

¶24 In his petition, the appellant argues that his disclosures about nurse

scheduling were protected because they revealed a substantial and specific t hreat

5

For additional communications about nursing support that were addressed below, but

not reasserted on review, we note that the administrative judge relied, in part, on the

testimony of the appellant and other witnesses. ID at 38. Among other things, she

considered the appellant’s testimony to be self-serving. Id. Although it was error to

reject the appellant’s testimony as self-serving, the administrative judge’s credibility

determination was otherwise, and on the whole, proper. See Doe v. U.S. Postal Service,

95 M.S.P.R. 493, ¶ 10 (2004) (sustaining credibility findings under similar

circumstances).

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to public health and safety. PFR File, Tab 5 at 36 -37. He further describes the

lunchtime encounter alluded to above, where a diabetic individual was in the

waiting room, not feeling well, and the only nurse in the office was occupied with

another patient. Id. at 36. The appellant characterizes this as an unsafe situation

because nurses were trained to use an “Accucheck” and treat hypoglycemia, if

needed, but he was not; the appellant could only sit with the patient and offer him

something to eat. Id.; IAF, Tab 39 at 43. The appellant also disputes the

administrative judge’s description of the clinic as “closed” during the lunch hour

because patients were oftentimes still being seen at that time or they were

arriving early for their 1:00 p.m. appointments. PFR File, Tab 5 at 37. Finally,

the appellant reiterates his belief that nurses should have been scheduled past

4:30 p.m. because the clinic was required to accept walk-in patients as late as

4:00 p.m. and the receptionist could occasionally accept a patient even later than

that. Id.

¶25 We have considered these arguments but find no reason to disturb the

administrative judge’s conclusion. As made evident throughout the record, the

clinic was not an emergency room or hospital. It was a facility with designated

hours of operation where the appellant and others provided primary care services.

E.g., IAF, Tab 11 at 6-7, 185-87, Tab 39 at 555-57. For emergency services, the

clinic referred patients to the hospital. E.g., IAF, Tab 38 at 112, Tab 39 at 147.

¶26 The agency’s expectation was for the appellant to work from 8:00 a.m. to

4:30 p.m. each day, with a lunch hour in between. E.g., IAF, Tab 11 at 185-87.

The appellant oftentimes would work through lunch and stay after hours to try

and keep up with a workload that he found unmanageable. E.g., IAF, Tab 38

at 57-58, 110, Tab 39 at 196. But, we discern no basis for concluding that the

absence of consistent nursing coverage outside the clinic’s ordinary operating

hours was a substantial and specific threat to public health and safety.

¶27 We recognize and appreciate the appellant’s recounting of the one instance

in which a patient apparently arrived to the clinic’s waiting room during the lunch

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hour looking unwell. But, by the appellant’s own description, a physician,

a nurse, and a receptionist were all occupying the clinic at that time, and another

nurse arrived within minutes. IAF, Tab 39 at 42-43. Although it is apparent that

the appellant was frustrated by this incident, in part because he did not know how

to best treat the patient, himself, we are not persuaded that he reasonably believed

that his disclosure was protected. The record before us suggests that the clinic

was ordinarily staffed during the lunch hour and staff would stay aft er their tour

ended, if needed, to accommodate any emergency. E.g., IAF, Tab 11 at 194, 198,

Tab 39 at 44, 72. It also suggests that the appellant, himself, had sought help

from the nearby hospital for instances in which the clinic could not care for a

patient with emergency needs. IAF, Tab 38 at 112. For these reasons, we

determine that the appellant’s disclosures about nurses’ schedules at the clinic

reflect a policy disagreement, but do not also reveal any type of disclosure

covered under the whistleblower statute. See generally Hessami v. Merit Systems

Protection Board, 979 F.3d 1362, 1371 (Fed. Cir. 2020) (recognizing that “policy

decisions and disclosable misconduct under the [whistleblower statutes] are not

mutually exclusive”).

Disclosure 6 – improper handling of a cancer patient’s complaint

¶28 The next set of disclosures the appellant reasserts on review concerned a

staff encounter with one of the appellant’s patients—an encounter the appellant

did not witness. ID at 15-16, 39-41; see, e.g., IAF, Tab 39 at 145-70, Tab 48

at 4-5. According to associated medical records, this patient had experienced

pain and other symptoms for over a year, but the appellant had attributed this to a

relatively minor ailment. IAF, Tab 60 at 13. However, when the patient’s

symptoms continued to worsen and he sought care elsewhere, clinicians

uncovered extensive cancer. Id. The patient brought this news to the clinic,

asking to speak with the appellant. IAF, Tab 61 at 8. Notes in the patient’s chart

describe the appellant as “not available” during this encounter and describe the

14

patient as “understandably upset and feel[ing] the care received [at the clini c] was

not aggressive enough to identify his ailment sooner giving him a greater chance

of survival.” Id.

¶29 As recounted in the initial decision, multiple staff members provided

testimony, further describing this patient encounter and the events that follow ed.

ID at 15-16, 39-41. They indicated that the patient had come to confront the

appellant, not seek medical care from the appellant. ID at 15. When staff

indicated that the appellant was not available, the patient left the office abruptly,

informing them that he no longer intended to receive his care there and would

instead go to a different agency facility. Id. Staff took action to find out more

about the patient’s cancer diagnosis and to elevate the issue, in part , because they

interpreted the encounter as both a malpractice complaint and potential threat of

violence. Id. However, they did not immediately inform the appellant about the

diagnosis or encounter. ID at 15-16.

¶30 When the appellant did learn about the patient encounter, several days la ter,

he asked numerous individuals about what happened and then engaged in various

communications over many weeks about his conclusions. E.g., IAF, Tab 39

at 145-70, 219-20. Among other things, these communications alleged that staff

had lied about the appellant’s availability, they had deliberately kept him in the

dark, they had tarnished his reputation, and they had prevented the patient from

receiving prompt follow-up care. Id.

¶31 The administrative judge found that the appellant failed to prove that these

communications contained any disclosure protected under section 2302(b)(8).

ID at 40-41. Instead, she found that they contained conclusory and unreasona ble

assertions of maliciousness on the part of agency staff, both in terms of their

reporting that the appellant was unavailable at the time of the patient encounter

and in terms of their care for the patient. Id.

¶32 On review, the appellant has characterized his communications about this

patient as containing four distinct and protected disclosures. First, the appellant

15

argues that he disclosed a substantial and specific danger to public health and

safety by revealing that staff failed to address a patien t’s urgent need for medical

care. PFR File, Tab 5 at 21-23. Second, the appellant argues that he disclosed a

substantial and specific danger to public health and safety, a violation of agency

rules, and an abuse of authority by revealing that staff delib erately withheld the

patient’s condition from him for several days. Id. at 23-25. Third, the appellant

argues that he disclosed a violation of agency rules for handling urgent test

results. Id. at 25-26. Fourth, the appellant argues that he disclosed a substantial

and specific danger to public health and safety, as well as a violation of agency

rules, by revealing that upper management failed to adequately investigate the

matter. Id. at 26-27.

¶33 We have considered each of these arguments but do not find them

persuasive. By all indications, the patient in question understood the gravity of

his situation, and he visited the clinic to end his treating relationship there, not to

seek out advice or care from the appellant. Clinicians elsewhere had just

diagnosed him with cancer in his pancreas, lungs, liver, lymph nodes, and

bladder. IAF, Tab 60 at 13, Tab 61 at 9. When he came to the clinic, he did so

upset about his “chance of survival.” IAF, Tab 61 at 8. Witnesses described the

patient visit as one in which he was “firing” the clinic and expressing his intent to

go to elsewhere for further care. E.g., ID at 62; HR2 (testimony of Medical

Director at 28:00). A subsequent treatment note from a different agency medical

center shows that he did just that; the patient sought care elsewhere. IAF, Tab 60

at 13. While doing so, the patient seemed to fault the appellant for dismissing his

symptoms over the prior year. Id. The patient further described himself as

having “not done anything” in the week or so since his diagnosis, “due to the

shock,” as well as “his anger that [it] was not diagnosed sooner.” Id.

¶34 Plus, by all indications, staff at the CBOC clinic had followed up regarding

this patient, despite the patient indicating that he wanted nothing more to do with

the clinic, albeit through channels that did not include the appellant. As the

16

appellant has himself acknowledged, staff elevated the issue to multiple people,

including the clinic’s Medical Director, within the 2 days that followed the

patient’s unexpected visit to the clinic. E.g., IAF, Tab 39 at 157; PFR File, Tab 5

at 16. Staff also attempted to contact the patient by at least the fourth day after

that visit, as documented in the patient’s chart. IAF, Tab 61 at 8. In addition,

although staff did not immediately seek out the appellant to notify him of the

encounter or diagnosis in person, multiple witnesses testified that the appellant

would have received a prompt alert with the patient’s test results. E.g., ID at 16;

HR2 (testimony of Medical Director).

¶35 It is undisputed that the appellant conducted his own informal investigation

about what happened before making his disclosures. E.g., ID at 16; IAF, Tab 39

at 138, 144, 152. For that reason, he would have been aware of the circumstances

described above. In what appears to be his first communication to management

about the issue, the appellant explicitly recognized that the patient had already

visited the agency’s Palo Alto facility for follow up regarding his new cancer

diagnosis. IAF, Tab 39 at 151.

¶36 We appreciate that the appellant would still have reason for concern about

the patient’s health, he may have disagreed with the patient’s decision to seek

care elsewhere, and he may have wanted an opportunity to speak with the patient

sooner. But, we do not find that the appellant reasonably believed that his

communications about this incident—communications that primarily accuse staff

of lying about his availability and purposefully keeping him out of the loop, while

accusing management of failing to adequately deal with the same—revealed a

substantial and specific danger to public health and safety. We are also

unpersuaded that the appellant reasonably believed he disclosed an abuse of

authority or violation of any established rule.

¶37 In large part, the appellant’s arguments on review seem to rely on the

appellant’s suspicions about the staff and colleagues that surrounded him at the

clinic. For example, the appellant asserts that he was in the clinic, all day, on the

17

day of this patient encounter, as proof that staff maliciously lied about his

availability. PFR File, Tab 5 at 16. But, it is apparent that the appellant’s

presence in the clinic does not equate to him being unoccupied and available to

attend to a brief and unscheduled meeting with a patient. The appellant also

suggests that, while there was testimony indicating that the patient was

“outraged” and “fired” the clinic during the encounter, it may have been a

manufactured excuse to cover up the agency’s response. Id. at 18-20. But, the

appellant has identified no substantive evidence or testimony t o support his

suspicion, and, as previously mentioned, there is ample evidence to the contrary,

much of which he was aware of at the time of his disclosures. E.g., IAF, Tab 60

at 13, Tab 61 at 8.

¶38 Once again, it was the appellant’s burden of proving that he reasonably

believed that he was disclosing the type of wrongdoing described in the

whistleblower statute. In this instance, he has not done so.

Disclosure 9 – improper workload

¶39 The final set of disclosures the administrative judge found not protected

under section 2302(b)(8) were ones about the appellant’s work backlog, work

schedule, or workload during the period he worked for the clinic, between

March 2016 and January 2018. ID at 43-47. On review, the appellant describes

this set of disclosures as one about “work overload,” and he once again argues

that it revealed a substantial and specific danger to public health and safety.

PFR File, Tab 5 at 27-35.

¶40 It is undisputed that the appellant regularly found himself behind and

working longer hours than his normal work schedule, despite the agency

periodically adjusting his schedule or providing other assistance to give the

appellant an opportunity to catch up. For example, by May 2016, just 2 months

into his time working at the clinic, the appellant had developed a backlog of

nearly 800 “view alerts” in the agency’s system for communicating matters such

18

as lab results, prescription refill requests, notes to be signed, and schedule

changes. 6 IAF, Tab 38 at 30, Tab 39 at 50; ID at 4. Consequently, the Director

of Primary Care blocked off some of the appellant’s time for clearing that

backlog, while also offering to personally sit with the appellant to help him do so.

IAF, Tab 38 at 31, 35.

¶41 Over the next couple of months, the Director of Primary Care periodically

monitored and assisted the appellant with his view alerts, sometimes clearing

them out herself and sometimes granting him days of administrative time to catch

up in a separate location, where he would not be distracted by patients. E.g.,

id. at 41, 48, 57, 83, 86, 104-05. The appellant saw zero to three patients per day,

at times, to allow for this extensive administrative time, and his backlog shrank.

Id. However, by July 2016, the Director of Primary Care warned the appellant

that his failure to timely handle matters, such as view alerts, jeopardized patients,

so she expected him to both catch up and then stay current on his workload,

which should include a schedule of 10 patient appointments or walk-ins per day.

Id. at 65, 89.

¶42 Despite the accommodations, warnings, and some progress, the appellant’s

backlog of view alerts began to climb again, reaching 1,500 by September 2016.

Id. at 110-11, 124. The appellant indicated that he was seeing three to five

patients a day around that time, but he considered that overloaded and suggested

that it could result in harm to a patient. Id. at 124-25.

6

It is apparent that the amount of time it took to review or complete a “view alert”

varied, depending on the nature of the alert. We found one instance of the appellant

estimating that it took him 2 minutes to clear each. IAF, Tab 38 at 39. Elsewhere,

he described clearing as many as three per minute. IAF, Tab 39 at 49. We also found

another instance of the Director of Primary Care reviewing his backlog of alerts and

finding that many were “already done” but remained in his backlog because the

appellant simply failed to clear them from his queue. IAF, Tab 38 at 31. To provide

further context, the record contains extensive documentation showing how the

appellant’s backlog of unprocessed view alerts oftentimes grew by several hundred per

week. IAF, Tab 11 at 17-61.

19

¶43 In December 2016, the Director of Primary Care met with the ap pellant to

review the agency’s expectations. IAF, Tab 39 at 72. Among other things, that

included attending to 10 patient slots per day; notifying patients of test results

within 7 days if they required action or 14 days if they required no action; and

completing notes with 48 hours. Id. The Director of Primary Care warned that

failure to meet these expectations may result in discipline. Id.

¶44 By March 2017, the appellant had a backlog of patient notification letters to

complete, as well as 2,000 view alerts to dispose of, and he insisted that the

agency’s expectations of him were unrealistic, despite having some days with no

scheduled patients. Id. at 48, 57, 61. The Director of Primary Care responded

with dismay that the appellant had once again gotten behind, despite repeated

assistance and repeated explanations of the agency’s expectations.

Id. at 58, 61, 64, 68, 71. She denied the appellant’s request for additional

administrative time without seeing patients, as well as his request to see no new

patients; she set concrete deadlines for prioritizing and catching up on his

backlog; and she warned him that discipline could follow if he failed to do so. Id.

¶45 Nonetheless, in May 2017, the agency provided the appellant with dedicated

administrative time to address his backlog of view alerts that had grown to 2 ,200.

Id. at 109-14, 118, 120, 122, 124. Then, in June 2017, the agency issued the

appellant a counseling letter, describing how he had repeatedly failed to complete

test result notifications. IAF, Tab 11 at 137. Two months later, in August 2017,

the Director of Primary Care and others once again communicated back and forth

with the appellant about getting caught up and warned that his backlog of alerts

was a patient safety issue. IAF, Tab 39 at 185-91. This led to the agency sending

the appellant a letter, informing the appellant that his backlog of alerts would be

handled by other providers and he was expected to stay current on new alerts. Id.

at 198-99, 203. This letter also implemented a more structured and set schedule

of 10 patient slots each day, with designated administrative time built in after

20

each. Id. at 198-99. Of note, the agency described this schedule as consistent

with national standards and guidelines. Id. at 198, 201.

¶46 In November 2017, the appellant asked for some additional days with no

scheduled appointments so he could catch up on yet another backlog of

administrative tasks, but the Chief of Primary Care rejected the request,

indicating that he was expected to keep up to date without the cancellation of

appointments. IAF, Tab 11 at 181. Days later, the agency began the process of

admonishing the appellant for his delinquent view alerts. Id. at 173-80. The next

month, December 2017, he had a backlog of 1,500 view alerts. IAF, Tab 39

at 346. At that time, the agency reduced his schedule of patients and had other

clinicians intervene to dispose of his view alerts. Id. at 337, 355-57. At the end

of the month, when the appellant decided to allow his medical privileges to

expire, the agency gave him weeks of administrative time to compl ete outstanding

patient notes and view alerts before his extended leave that preceded his

resignation. Id. at 359-60.

¶47 To the extent that the appellant engaged in communications about his work

backlog, work schedule, and workload, the administrative judge found that they

were not protected disclosures. Among other things, she determined that many

were not protected disclosures because they merely asked questions, sought

assistance, or requested changes to his schedule. ID at 44 (referencing, e.g.,

IAF, Tab 38 at 28, 33-35, 56-57, Tab 39 at 47, 75, 226, 306). She also found that

many others concerned staffing, retention, the agency’s standards for time spent

with patients, or the “dysfunction” at the clinic, but they were too vague and

conclusory to be protected. ID at 44-45 (referencing, e.g., IAF, Tab 11 at 266,

Tab 38 at 29, 52, Tab 39 at 28-32, 75-79, 87). Finally, the administrative judge

recognized that, although agency officials were aware of the appellant’s backlog

and agreed that his backlog of work constituted a patient safety issue, the

appellant’s communications about the same were not to reveal wrongdoing that

21

implicated patient safety—they were to complain that he was unable or unwilling

to meet the agency’s expectations. ID at 45-47.

¶48 On review, the appellant has alluded to a significant number of documents

in support of his assertion that his communications about being overloaded with

work, particularly when it came to his view alerts, were protected because they

concerned patient safety. PFR File, Tab 5 at 27-35 (citing IAF, Tab 11

at 4, 7-131, 137, 181, Tab 38 at 28, 30, 33-34, 39-40, 111, 124-25, 150-52,

Tab 39 at 28-29, 48-51, 60, 130, 185-99, 336-63). Although we have reviewed

each, we do not find that he met his burden of proving that any contained

additional disclosures of the types of government wrongdoing covered under

section 2302(b)(8).

¶49 Much of the evidence cited by the appellant consists of the agency’s

communications—rather than his own—about the appellant’s inability to keep up

with his workload and remedial actions the agency took to deal with the same.

E.g., IAF, Tab 11 at 4-131, 137, 181, Tab 38 at 28, 30, Tab 39 at 198-99, 338-45,

349-54, 359-60. Some other evidence consists of agency policy statements about

managing view alerts. IAF, Tab 38 at 150-52, Tab 39 at 50-51. More are notes

the appellant wrote to himself, not someone else, describing his difficulties with

the agency’s expectations. IAF, Tab 39 at 48-49.

¶50 Other evidence the appellant cited consists of the communications in which

the appellant explained why he had difficulties with the agency’s expectations,

while insisting that he needed more time than the agency allot ted. E.g.,

IAF, Tab 38 at 33-34, 39-40, 124-25, Tab 39 at 28-29. To illustrate, in one email,

from 6 months into his time with the clinic, the appellant accused the Director of

Primary Care of being “out of touch with reality” and “pressuring [him] to do

more than [he] can responsibly do,” while surmising that this was a “tale of

substandard care” necessitated by “some bean counter.” IAF, Tab 38 at 125.

In another, the appellant criticized staffing levels and indicated that he had to

work extensive overtime. IAF, Tab 39 at 28-29. Another email from the

22

appellant indicates that, despite him previously informing the Director of Primary

Care that he understood and could meet the agency’s expectations, he had

determined that those expectations were unrealistic. Id. at 60.

¶51 Many others consist of the appellant’s communication with agency officials

about wrapping up his backlog and practice before separating from the clinic. For

example, some emails complain the agency was refusing his proposal to reduce

the number of patients he saw each day and was instead requiring a “dangerous

schedule,” which would cause undue stress and overtime. Id. at 130-31, 355.

Several others show the appellant and managers trying to coordinate the reduction

or elimination of patient appointments for the appellant, as well as the reduction

or elimination of his backlog of view alerts and other administrative tasks, before

handing patients over to other providers. Id. at 185-97, 336-37, 346, 348, 356-58,

361-63. At times, those communications in his final days working for the clinic

contain broad allegations of improprieties, such as the appellant’s allegation that

management had “a vested personal interest in the dysfunctional status quo.” Id.

at 347.

¶52 The appellant’s arguments on review about this set of disclosures do

provide one instance of him describing how one, particular patient was reportedly

harmed by inadequate follow up from lab reports. PFR File, Tab 5 at 30 (citing

IAF, Tab 38 at 111). However, that instance involved a prior physician, not the

appellant or his own workload, and the administrative judge found that discrete

matter to be a protected disclosure about a prior lapse in care. ID at 36 (citing

IAF, Tab 38 at 111). That disclosure about a particular instance involving a

different clinician is markedly different from the appellant’s communications

about his own backlog of view alerts or other aspects of his workload, which

constantly ebbed and flowed as the agency repeatedly warned the appellant about

keeping up and provided assistance with the same, either by giving the appellant

additional administrative time or by having another provider intervene.

23

¶53 In sum, we have considered all the documents the appellant cited on review

regarding this set of disclosures about his workload, as well as his arguments

about the same. The appellant makes a persuasive case about how view alerts or

other administrative tasks that are altogether left to languish, unattended, could

eventually result in harm to a patient under the agency’s care. E.g., PFR File,

Tab 5 at 27-29. However, the appellant has failed to prove that he reasonably

believed that to be the situation he was disclosing. This is particularly so because

the appellant knew that numerous agency officials consistently monitored his

workload and intervened to prioritize, reduce, or altogether eliminate both his

backlog of administrative tasks and his schedule of patients when necessary.

Simply put, the communications identified on review regarding the appellant’s

workload demonstrate that he was consistently dissatisfied with the agency’s

expectations, and he oftentimes wished that the agency would intervene i n

different ways or at different times as he got behind in his workload, but they do

not show that he reasonably believed that he was disclosing the types of

wrongdoing covered under section 2302(b)(8) of the whistleblower statute.

The appellant failed to prove that Personnel Actions 2 and 4 were cognizable

personnel actions under the whistleblower statute.

¶54 To recall, the appellant alleged that he was subject to four retaliatory

personnel actions: (1) a November 2017 admonishment, (2) a hostile work

environment, (3) a December 2017 letter that changed work conditions, and (4) an

involuntary resignation. Supra, ¶ 3. The administrative judge found that the

November 2017 admonishment (Personnel Action 1) was a cognizable personnel

action, ID at 48-49, as was the agency’s December 2017 letter changing his

working conditions (Personnel Action 3), ID at 62-63. However, the

administrative judge reached the opposite conclusion for the alleged hostile work

environment (Personnel Action 2), ID at 49-62, and involuntary resignation

(Personnel Action 4), ID at 63-66.

24

¶55 On review, the appellant asserts that if we disagree with the administrative

judge regarding the existence of additional protected disclosures, we should

revisit the administrative judge’s findings with respect to his allegations of a

hostile work environment and involuntary resignation. PFR File, Tab 5 at 5.

He goes on to present cursory arguments about both. Id. at 46.

¶56 As detailed above, we are not persuaded by the appellant’s arguments about

additional protected disclosures. Nevertheless, we have reviewed the

administrative judge’s findings about the alleged hostile work environment and

involuntary resignation. ID at 49-62, 63-66.

Personnel Action 2 – a hostile work environment

¶57 The whistleblower statute’s definition of a personnel action includes, inter

alia, a “significant change in duties, responsibilities, or working conditions ,” and

the Board has recognized that this phrase must be interpreted broadly. 5 U.S.C.

§ 2302(a)(2)(A)(xii); Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 23

(2015). During the period that followed the administrative judge’s initial

decision, we issued a decision that further clarified the matter, particularly as it

relates to allegations of a hostile work environment. See Skarada v. Department

of Veterans Affairs, 2022 M.S.P.B. 17.

¶58 In Skarada, we explained that, although the term “hostile work

environment” has a particular meaning in some other contexts, allegations of a

hostile work environment may only establish a personnel action under the

whistleblower statute if they meet the statutory criteria, i.e. , a significant change

in duties, responsibilities, or working conditions. Id., ¶ 16. And, while the

“significant change” personnel action should be interpreted broadly to include

harassment and discrimination that could have a chilling effect on whistleblowing

or otherwise undermine the merit system, only agency actions that, individually

or collectively, have practical and significant effects on the overall nature and

25

quality of an employee’s working conditions, duties, or responsibilities will be

found to constitute a personnel action covered by section 2302(a)(2)(A)(xii). Id.

¶59 Although the administrative judge issued the initial decision before Skarada

and, therefore, lacked the explanation contained within, we find no basis for

disturbing her findings of fact about the alleged hostile work environment or her

conclusion that the appellant failed to prove that he was subjected to a n additional

personnel action cognizable under the whistleblower statute. In the initial

decision, the administrative judge provided a lengthy recitation of the appellant’s

allegations pertaining to a hostile work environment along with the associated

evidence. ID at 28-29, 49-60. For the most part, these allegations concerned

conversations and disagreements he had with colleagues. Id. The administrative

judge determined that the appellant subjectively felt hostility and much of the

clinic staff did not like working with the appellant, but this was simply the result

of the appellant’s unusual work methods and demands, as well as his own

objectionable behavior—the appellant did not prove that the agency subjected

him to a significant change in duties, responsibilities, or working conditions.

ID at 60-62.

¶60 The appellant’s petition for review contains no more than a cursory

argument to the contrary. PFR File, Tab 5 at 46. He suggests that the CBOC

clinic was no ordinary workplace, where occasional disagreements or mistakes

are expected, and the 3-day hearing recording demonstrates why that is so. Id.

The appellant also poses a question, wondering why one witness was not

discussed within the administrative judge’s analysis, though the appellant fails to

provide further explanation of the associated testimony. Id. Without more

though, we will not pour over the voluminous, documentary evidence or hearing

recordings in search of a reason to disturb the administrative judge’s extensive

and well-reasoned findings of fact on this point. See Marques v. Department of

Health & Human Services, 22 M.S.P.R. 129, 132 (1984) (recognizing that

an administrative judge’s failure to mention all of the evidence of record does not

26

mean that she did not consider it in reaching her decision ), aff’d, 776 F.2d 1062

(Fed. Cir. 1985); 5 C.F.R. § 1201.115(a) (providing that a petitioner who alleges

that the judge made erroneous findings of material fact must explain why the

challenged factual determination is incorrect and identify specific evidence in the

record that demonstrates the error).

Personnel Action 4 – an involuntary resignation

¶61 Regarding the appellant’s allegation that he was subjected to a retaliatory

involuntary resignation, the administrative judge determined that the appellant

did not prove the requisite involuntariness of his resignation. ID at 64-66;

see generally Jenkins v. Merit Systems Protection Board, 911 F.3d 1370, 1375-77

(Fed. Cir. 2019) (discussing the presumption that a resignation or retirement is

voluntary and an appellant’s burden of proving otherwise). Among other things,

she noted that the appellant took extensive leave for nearly 2 years before

eventually resigning from the agency. ID at 22-24, 65. She further noted that,

during that time, the appellant had virtually no contact with the CBOC clinic and

most of the officials he had routinely clashed with retired or otherwise left the

agency. Id. For these reasons and others, the administrative judge concluded that

a reasonable person in the appellant’s position would not have felt compelled to

resign when the appellant did so. ID at 65-66.

¶62 Again, the appellant presents little more than a cursory argument about his

alleged involuntary resignation. PFR File, Tab 5 at 46. Without any substantive

explanation, the appellant asserts that hearing testimony showed that his working

conditions were intolerable. Id. That assertion provides no basis for disturbing

the administrative judge’s findings to the contrary.

The agency proved that it would have taken Personnel Actions 1 and 3 in the

absence of the appellant’s protected disclosures.

¶63 Again, for those matters where the administrative judge found that the

appellant met his burden of presenting a prima facie case of whistleblower

27

reprisal, she shifted the burden to the agency. Upon doing so, the administrative

judge found that the agency proved by clear and convincing evidence that it

would have taken the same personnel actions (Personnel Actions 1 and 3) in the

absence of the appellant’s protected disclosures (Disclosures 3, 5, 7, and 8).

¶64 In determining whether the agency has met its burden of p roving that it

would have taken the same personnel action in the absence of an appellant’s

protected disclosures or activities, the Board will consider the following factors:

(1) the strength of the agency’s evidence in support of its action; (2) the exis tence

and strength of any motive to retaliate on the part of the agency officials involved

in the decision; and (3) any evidence that the agency takes similar actions against

employees who are not whistleblowers, but who are otherwise similarly situated.

Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).

The Board does not view these factors as discrete elements, each of which the

agency must prove by clear and convincing evidence, but rather, the Board will

weigh the factors together to determine whether the evidence is clear and

convincing as a whole. Phillips v. Department of Transportation,

113 M.S.P.R. 73, ¶ 11 (2010). In addition, the Board is mindful that “[e]vidence

only clearly and convincingly supports a conclusion when it does so in the

aggregate considering all the pertinent evidence in the record, and despite the

evidence that fairly detracts from that conclusion.” Whitmore v. Department of

Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).

¶65 On review, the appellant does not present any particularized arguments

about Personnel Action 1, but he does regarding Personnel Action 3. PFR File,

Tab 5 at 38-45. Our analysis of the agency’s burden will be similarly focused.

¶66 Personnel Action 3 consisted of the changed working conditions described

in an agency letter, dated December 26, 2017, from the Director of Primary Care

to the appellant. IAF, Tab 39 at 359-60. Among other things, it described how

the appellant had decided to let his privileges with the agency’s healthcare system

expire, which prevented him from caring for patients and could lead to his

28

removal if he did not also resign. Id. at 359. The letter went on to indicate that

the agency would provide the appellant with several weeks to catch up on view

alerts and other administrative tasks, but he would do so in a different wing of the

clinic, away from the primary care section where he typically worked. Id. The

agency also gave the appellant specific instructions about how to communicate

with nursing staff for that period. Id.

¶67 Regarding the Carr factors described above, the administrative judge first

found that the agency had strong evidence in support of its actions. ID at 72-74.

Inter alia, she explained that the agency had ample reason to believe that the

appellant was planning to resign, he had administrative tasks to wrap up before

doing so, and he had a lengthy history of being distracted from those

administrative tasks when attending to his regular duties in the clinic. Id.

Second, the administrative judge found that none of the relevan t officials had a

strong motive to retaliate against the appellant. ID at 74 -75. Third, she found

that, although there were some individuals who were not whistleblowers but were

somewhat similar to the appellant in terms of falling behind on administrati ve

tasks, the facts of each were distinguishable and did not support a finding of

retaliation in this appeal. ID at 75-76.

¶68 In his petition for review, the appellant argues that the agency would not

have implemented Personnel Action 3 in the absence of his emails to agency

officials in the preceding days about his backlog of view alerts or other

administrative tasks once again increasing. PFR File, Tab 5 at 38 -45. But, in

doing so, the appellant seems to exclusively rely on his communications in

Disclosure 9, which were not protected. See supra, ¶¶ 39-53. Such arguments

are unavailing because the agency’s burden was only to prove that it would have

taken the same personnel action in the absence of his protected disclosures.

Supra, ¶ 6. In other words, even if the agency did implement Personnel Action 3

because of the communications it had with the appellant about his backlog of

29

administrative tasks in the preceding days, that does not warrant corrective action

under the whistleblower statute.

¶69 The appellant also asserts that Personnel Action 3 constituted discipline, for

which he should have been entitled to due process, and it violated his freedom of

speech. PFR File, Tab 5 at 39, 44-45. Alternatively, he seems to argue that,

although it may have been appropriate to eliminate his patient care duties for a

couple weeks, or reduce them for longer, eliminating them for a month was

excessive. Id. at 43-44. These brief arguments do not, however, persuade us that

the administrative judge erred regarding the limited issues before us in this

appeal.

¶70 To conclude, the appellant presented extensive arguments and allegations of

reprisal during the proceedings below. The administrative judge found that

he presented a prima facie case of reprisal regarding a limite d subset of the

alleged disclosures and personnel actions, but he was not entitled to corrective

action. On review, the appellant has further narrowed his arguments and

allegations. We considered each but find no reason find that he is entitled to

corrective action.

NOTICE OF APPEAL RIGHTS 7

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 and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

7

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 mat ter.

30

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

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

31

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 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

32

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 of appeals of

competent jurisdiction. 8 The court of appeals must receive your petition for

8

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.

33

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 particul ar

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.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.

34

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.