Robinson v. DVA , 923 F.3d 1004 ( 2019 )

United States Court of Appeals
for the Federal Circuit
______________________
LANCE ROBINSON,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2017-2143
______________________
Petition for review of the Merit Systems Protection
Board in No. DE-0752-16-0351-I-1.
______________________
Decided: May 6, 2019
______________________
JULIA H. PERKINS, Shaw, Bransford & Roth P.C., Wash-
ington, DC, argued for petitioner. Also represented by
JAMES PHILIP GARAY HEELAN, DEBRA LYNN ROTH.
HILLARY STERN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by
REGINALD THOMAS BLADES, JR., ROBERT EDWARD
KIRSCHMAN, JR., JOSEPH H. HUNT.
______________________
Before REYNA, TARANTO, and CHEN, Circuit Judges.
2 ROBINSON v. DVA
REYNA, Circuit Judge.
Lance Robinson appeals the Merit Systems Protection
Board’s decision to uphold the Department of Veterans Af-
fairs’ removal of Mr. Robinson as Associate Director of the
Phoenix Veterans Administration Health Care System.
Because the Merit Systems Protection Board did not abuse
its discretion and its finding of negligence is supported by
substantial evidence, we affirm.
BACKGROUND
Lance Robinson became the Associate Director of the
Phoenix Veterans Administration Health Care System
(“Phoenix VA”) in May 2012. He had been the acting Asso-
ciate Director from October 2011 through February 2012
and started his career with the U.S. Department of Veter-
ans Affairs (“VA”) in 1987. Mr. Robinson’s job responsibil-
ities included supervising most of the Phoenix VA
administrative personnel, Health Administration Services
(“HAS”), human resources, and a number of other depart-
ments. HAS is responsible for managing the scheduling of
appointments at the Phoenix VA. Employees in these de-
partments reported to Robinson through a number of su-
pervisors and department chiefs. During his tenure as
Associate Director, Mr. Robinson was aware that schedul-
ing issues were a problem, including the fact that it often
took more than thirty days for patients to receive new-pa-
tient appointments.
In early 2014, U.S. Congressman Jeff Miller, Chairman
of the House Committee on Veterans’ Affairs, made public
allegations that forty veterans died while on “secret” wait-
lists at the Phoenix VA. J.A. 5. These accusations led to
an investigation by the Office of the Inspector General
(“OIG”) and the Department of Justice (“DOJ”). As a re-
sult, the VA put Robinson on administrative leave on May
2, 2014.
ROBINSON v. DVA
3
On May 28, 2014, OIG issued an interim report that
addressed the waitlist allegations at the Phoenix VA. The
report suggested that HAS supervisors should have known
about the 1,700 veterans that had been waiting on the New
Enrollee Appointment Request (“NEAR”) list for longer
than thirty days and had not yet seen a physician or had
not been moved to the Electronic Wait List (“EWL”). The
NEAR list is used to alert schedulers “that a newly enrolled
Veteran has requested an appointment during the enroll-
ment process.” J.A. 2. EWL “is the official [Veterans
Health Administration] wait list . . . used to list patients
waiting to be scheduled, or waiting for a panel assign-
ment.” J.A. 2. The Veterans Health Administration
(“VHA”) Outpatient Scheduling Directive 2010-027
(“Scheduling Directive”), dated June 9, 2010, outlined pro-
cedures for scheduling VA patients for medical appoint-
ments and required HAS to use NEAR and EWL to do so.
It also mandated that no other waitlists besides the EWL
were to be used to track VA outpatient appointments.
On May 30, 2014, based on the OIG interim report, the
VA’s Deputy Chief of Staff proposed that Robinson be re-
moved as the Associate Director of the Phoenix VA due to
his “failure to provide oversight.” J.A. 6030. The VA’s As-
sistant Secretary of the Office of Security and Prepared-
ness, Kevin Hanretta, was named Deciding Official in
Robinson’s case. Mr. Hanretta did not take action on Rob-
inson’s proposed removal. Robinson remained on adminis-
trative leave for two years, returning to duty in January
2016.
Meanwhile, OIG, DOJ, and Congress continued to in-
vestigate the allegations of secret waitlists at the VA. The
Senate Committee on Veterans’ Affairs (“Senate Commit-
tee”) asked Dr. David Shulkin, the Under Secretary for
Health at the time, why many senior executives were
placed on paid administrative leave instead of removed
from office for the deaths of veterans who languished on
secret waitlists. J.A. 7106–07. Dr. Shulkin replied that
4 ROBINSON v. DVA
although the VA would like to conclude its disciplinary ac-
tions, “[t]he U.S. attorney . . . has prohibited us from inter-
viewing those individuals.” J.A. 7107; see also J.A. 7099.
On December 28, 2015, Mr. Robinson, having heard Dr.
Shulkin’s statements, submitted a letter to the Chairman
of the Senate Committee and another ranking member of
the same Committee “to correct [Dr. Shulkin’s] inaccurate
testimony.” J.A. 6866. Mr. Robinson claimed that the VA
called him to testify regarding patient wait times and that
OIG also interviewed him on June 9, 2015. J.A. 6869–70.
On January 13, 2016, Senator John McCain, a member of
the Senate Committee, expressed his disappointment in
the VA, stating: “During the recent Senate Veterans Af-
fairs Committee hearing on health care and accountability
at the Phoenix VA Health Care System, senior VA officials
repeatedly gave inaccurate testimony to my questions on
why no actions have been taken against these officials.”
J.A. 7163.
In January 2016, Mr. Robinson returned to active duty
status and began working at Veterans Integrated Service
Network (“VISN”) 18, the regional entity that oversees the
Phoenix VA. About three months later, on March 14, 2016,
Deputy Secretary Sloan Gibson issued a second proposal
for Robinson’s removal, rescinding the May 30, 2014 notice.
J.A. 486. Mr. Gibson charged Mr. Robinson with three
grounds for removal: (1) negligent performance of duties
(six specifications); (2) failure to ensure accuracy of infor-
mation provided (three specifications); and (3) retaliation
against another VA employee for making protected disclo-
sures, which is prohibited by the Whistleblower Protection
Enhancement Act (six specifications). J.A. 7, 486–89. On
June 7, 2016, Mr. Gibson, who served as both the Proposing
Official and Deciding Official, sustained all charges against
Mr. Robinson and removed him as Associate Director of
Phoenix VA.
ROBINSON v. DVA
5
Charge 1 of the second proposal for removal alleged
that Mr. Robinson negligently performed his duties as As-
sociate Director. Specifications 1 and 4 outlined how Mr.
Robinson negligently failed to ensure that HAS personnel
used NEAR to schedule appointments or put veterans on
EWL. J.A. 486–87. Specification 2 accused Mr. Robinson
of failing to make certain that subordinates scheduled vet-
erans for appointments or placed them on EWL after cap-
turing patient information on screenshots. J.A. 486. The
remaining specifications accused Mr. Robinson of failing to
ensure that HAS personnel (1) scheduled veterans for pri-
mary care appointments after visiting the emergency room
(specification 3); (2) used EWL in all outpatient settings in
compliance with VA instructions (specification 5); and
(3) used the Recall/Reminder 1 software to request follow-
up appointments when an appointment could not be imme-
diately scheduled, as dictated by VA policy (specification 6).
J.A. 2, 486–87.
Charge 2 alleged that Mr. Robinson did not ensure that
he, or his subordinates, provided accurate information to
VISN 18. J.A. 487. In particular, Robinson failed to con-
duct daily assessments of “scheduling accuracy processes”
(specification 1) or accurately provide information regard-
ing the use of EWL (specification 2) and NEAR (specifica-
tion 3). J.A. 487.
On March 15, 2016, one day before Mr. Robinson was
served with his second notice of proposed removal, Deputy
Secretary Sloan Gibson made statements in a news inter-
view regarding the status of senior VA personnel allegedly
responsible for the secret waitlist scandal. Mr. Gibson re-
portedly stated “he was disappointed that it took so long
1 Recall/Reminder is an application used to manage
appointments scheduled more than three to four months
away.
6 ROBINSON v. DVA
for the executives to be removed,” and “he was confident
that the latest firings would be upheld on appeal.” J.A.
7186–87. These statements were published in the New
York Times. On June 7, 2016, Mr. Gibson issued the Deci-
sion Regarding Proposed Removal, removing Mr. Robinson
from his position as Associate Director of Phoenix VA.
Mr. Robinson appealed to the Merit Systems Protection
Board (“Board”). The administrative judge (“AJ”) affirmed
the VA’s decision to remove Robinson on the grounds that
he was negligent in the performance of his duties and that
he failed to provide accurate information to his supervisors.
J.A. 2. The Board did not sustain the whistleblowing retal-
iation charge against Mr. Robinson. J.A. 43. Mr. Robinson
appeals the Board decision. We have jurisdiction under 28
U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1).
DISCUSSION
This court shall set aside any Board decision found to
be arbitrary, capricious, an abuse of discretion, or unsup-
ported by substantial evidence. 5 U.S.C. § 7703(c). Sub-
stantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Frederick v. Dep’t of Justice, 73 F.3d 349, 352 (Fed. Cir.
1996) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). An example of an abuse of discretion is an er-
roneous interpretation of law or unreasonable judgment in
weighing relevant factors. Gose v. U.S. Postal Serv., 451
F.3d 831, 836 (Fed. Cir. 2006) (quoting Lacavera v. Dudas,
441 F.3d 1380, 1383 (Fed. Cir. 2006)).
When an agency takes adverse action against an em-
ployee, the agency must establish by a preponderance of
the evidence that (1) the charged conduct occurred;
(2) there is a nexus between the conduct and efficiency of
service; and (3) the imposed penalty was reasonable. Bry-
ant v. Nat’l Sci. Found., 105 F.3d 1414, 1416 (Fed. Cir.
1997) (citing 5 U.S.C. §§ 7701(c)(1)(B), 7513(a)).
ROBINSON v. DVA
7
On appeal, Mr. Robinson contends that substantial ev-
idence does not support the Board’s decision to sustain re-
moval; that removal was not a reasonable disciplinary
action; that the VA failed to meet its burden to show by
clear and convincing evidence that he would have been re-
moved absent his protected disclosures against Dr.
Shulkin; and that his due process rights were violated. We
address each argument below.
A. Charge 1: Negligent Performance of Duties
There is no dispute that VA personnel failed to use
NEAR or EWL, ultimately leading to thousands of veterans
going unseen for medical care. The question here is
whether Mr. Robinson was negligent in that he knew or
should have known that his subordinates consistently
failed to use scheduling practices required by VA policy. In
short, the answer is yes. Mr. Robinson was a member of
upper-level management responsible for ensuring that
HAS personnel complied with the policies set forth in the
Scheduling Directive. Instead, he took a hands-off ap-
proach to managing the scheduling problems at Phoenix
VA despite knowing the severity of scheduling problems
permeating the system. Accordingly, the Board did not err
in sustaining the negligence charges against Mr. Robinson.
Mr. Robinson argues that substantial evidence does
not support a finding that he acted negligently in the per-
formance of his duties. He attacks the evidence supporting
each of the Board’s findings with respect to each of the six
specifications listed in the second notice of removal. We
address each specification, and the evidence assessed by
the Board, in turn.
Specifications 1, 2, and 4
Specifications 1, 2, and 4 all similarly allege that Mr.
Robinson failed to properly supervise HAS personnel to en-
sure that NEAR and EWL were used to schedule veterans
for medical appointments. Mr. Robinson contends that
8 ROBINSON v. DVA
because he did not actually know that his subordinates
were not using NEAR or EWL, he cannot be held liable for
the actions of his subordinates. To the contrary, substan-
tial evidence supports a finding that Mr. Robinson knew,
or should have known, of his subordinates’ failure to use
NEAR and EWL.
An individual is negligent in the performance of his du-
ties if he fails to exercise the degree of care that “a person
of ordinary prudence” with the same experience would ex-
ercise in the same situation. Velez v. Dep’t of Homeland
Sec., 2006 M.S.P.B. 116, ¶ 11 (2006) (citing Mendez v. Dep’t
of the Treasury, 88 M.S.P.R. 596, ¶ 26 (2001)), aff’d, 219 F.
App’x 990 (Fed. Cir. 2007). A supervisor cannot be held
responsible for the conduct of his subordinate unless he di-
rected, knew, or should have known of the subordinate’s
misconduct and acquiesced to the improper behavior. Mil-
ler v. Dep’t of Health & Human Servs., 7 M.S.P.B. 713, 714–
15 (1981). 2 Factors to consider under the “knowledge and
acquiescence standard” are (1) the knowledge the supervi-
sor had, or should have had, of the subordinate’s miscon-
duct; (2) the existence of policies or practices relevant to the
misconduct; and (3) the extent to which the supervisor di-
rected or acquiesced to the subordinate’s misconduct. Id.
The Board may also consider the experience of the supervi-
sor, including his length of service, as well as the number
of employees under the supervisor’s purview. Id. Not all
of the factors iterated above are relevant in every case. Id.
But, in each instance, the relevant factors are weighed to
discern whether the supervisor may be held responsible for
the actions of his subordinates. Id.
As an initial matter, Mr. Robinson misunderstands the
charges against him. Specifications 1, 2, and 4 do not
2 Although Miller is a non-binding Board decision,
neither party has suggested that a different standard
should be applied.
ROBINSON v. DVA
9
charge Robinson for “the failings of subordinates,” as he
contends. Appellant Br. 38. Rather, Mr. Robinson is
charged with the failure to perform his duties as Associate
Director. The charge against Mr. Robinson—negligent per-
formance of duties—implicates the behavior of his subordi-
nates because his failure to supervise HAS personnel,
among others, is at the root of each of specifications 1, 2,
and 4. Therefore, we apply the Miller standard to assess
whether Mr. Robinson negligently performed his duties by
“allowing a situation to exist in which his subordinates
acted improperly.” Miller, 7 M.S.P.B. at 713.
The VA clearly had a policy dictating the scheduling of
outpatient appointments—in this case, the Scheduling Di-
rective. The Scheduling Directive also aimed to “ensur[e]
the competency of staff directly or indirectly involved in
any, or all, components of the scheduling process,” and ex-
plicitly cautioned “[f]acility leadership [to] be vigilant in
the identification and avoidance of inappropriate schedul-
ing activities.” J.A. 676, 686. As part of the “facility lead-
ership,” Mr. Robinson had a duty to ensure that his
subordinates complied with the Scheduling Directive and
used NEAR and EWL to schedule outpatient appoint-
ments.
Importantly, Mr. Robinson was aware of the Schedul-
ing Directive when it issued in 2010. He testified that the
VA issued the Scheduling Directive when he was Associate
Director at the Amarillo VA Medical Center. J.A. 11713.
Substantial evidence shows Mr. Robinson had actual
knowledge of the Phoenix VA’s scheduling problems during
his tenure as Associate Director of Phoenix VA. On Janu-
ary 7, 2012, VISN 18 issued an Appointment Scheduling
Audit Report that assessed whether “VISN facilities were
compliant with VHA policy and regulatory guidance re-
lated to appointment scheduling and use of the Electronic
Wait List.” J.A. 751. Among other things, the audit noted
“Phoenix was not appropriately placing patients on the
10 ROBINSON v. DVA
EWL.” J.A. 794; see also J.A. 753 ¶ 4. Mr. Robinson was
acting Associate Director of the Phoenix VA at the time the
audit report issued and is listed on the distribution list.
Then, in July 2013, Mr. Robinson was copied on a se-
ries of emails detailing occurrences at the Phoenix VA
where veterans were not put on the EWL. For example,
Mr. Robinson received an email chain detailing the Phoe-
nix VA’s failure to put a veteran on EWL for eighteen
months. J.A. 1234–37. He received another email outlin-
ing “[t]he patient complaints on the EWL.” J.A. 1236. In
yet another email, Mr. Robinson was alerted to an instance
where a veteran’s referral for a primary care appointment
after visiting the emergency room “wasn’t addressed for 2
months.” J.A. 1220. Unfortunately, the veteran passed
away before the Phoenix VA even called to schedule the fol-
low-up appointment requested by the emergency physi-
cian.
In December 2013, Bradley Curry, the Chief of HAS,
confirmed that executive management understood the
VISN scheduling audit findings and the deficiencies in the
Phoenix VA’s scheduling system. In an email addressed to
Mr. Robinson, among others, Mr. Curry noted
The VISN team found key Scheduling Directive re-
quirements were not fully implemented as de-
scribed in VHA Scheduling Directive 2010-027,
including a systematic process for the identifica-
tion and avoidance of inappropriate scheduling ac-
tivities, full implementation of the Electronic Wait
List (EWL) as described in the Scheduling Di-
rective and full implementation of the Recall Sys-
tem as described in the Directive. Findings were
discussed with staff, and the teams immediately
began to form a collaborative action plan.
J.A. 1225 (emphases added). Thus, Robinson knew of
HAS’s wrongdoing, namely, its failure to use NEAR, the
EWL, and the Recall/Reminder software. Susan Bowers,
ROBINSON v. DVA
11
VISN 18’s Director, also testified that Mr. Robinson “knew
what was going on in his service and what was going on in
the facility as a whole.” J.A. 11020 (56:16–18).
Mr. Robinson contends the evidence does not show he
had knowledge of the misconduct because he asserts the
Miller standard requires a “robust” showing of actual
knowledge. Appellant Br. 38. This is an incorrect reading
of the rule, which considers, among other factors, “the
knowledge a supervisor has, or should have, of the conduct
of subordinates.” Miller, 7 M.S.P.B. at 714–15 (emphasis
added). Therefore, when considering whether Mr. Robin-
son negligently performed his duties, we may consider
whether a person of ordinary prudence in a similar situa-
tion should have known, or had reason to know, of his sub-
ordinates’ misconduct. Indeed, Miller notes that the level
of knowledge required to hold a supervisor responsible for
the misconduct of his employees is considered on a sliding
scale depending on the level of direct control the supervisor
has over the subordinates committing misconduct.
7 M.S.P.B. at 715. In other words, “the greater the duty”
to control the subordinates who committed the misconduct,
“the less specific knowledge of the misconduct the supervi-
sor will be required to have.” Id. But “[w]here it has been
shown that the supervisor has direct control over the em-
ployees committing the violation, the supervisor’s general
knowledge of relevant factors imposes an affirmative duty
to investigate further.” Id.
Regardless of whether Mr. Robinson had actual
knowledge that employees directly responsible for schedul-
ing were not using NEAR or EWL, Mr. Robinson had an
affirmative duty to investigate in view of the emails dis-
cussed above, the VISN audit report, and the OIG interim
report noting that 1,700 veterans languished on NEAR for
more than thirty days. Indeed, Mr. Robinson directly su-
pervised Bradley Curry, the Chief of HAS, whose depart-
ment is responsible for scheduling veterans for outpatient
appointments. Therefore, Mr. Robinson had a duty to
12 ROBINSON v. DVA
ensure that Mr. Curry and HAS were not only using NEAR
and EWL to schedule appointments, but that no unofficial
methods were being used instead, i.e., a queue of screen-
shots to be eventually inputted into EWL. See Newton v.
Dep’t of Air Force, 85 F.3d 595, 597 (Fed. Cir. 1996)
(“[A]ppellant, as an experienced leader who supervised be-
tween 15 and 75 employees, was properly held to a high
standard of conduct because he occupied a position of trust
and authority.”).
It also appears that Mr. Robinson acquiesced to the
scheduling improprieties permeating HAS and failed to
further investigate this misconduct. A prudent supervisor
with about twenty-seven years experience with the VA—at
least seven of which were as an associate director—would
have asked the Chief of HAS to investigate the incidents
discussed in the emails and the general findings of the
VISN audit and OIG interim reports. While there is some
evidence in the record that Mr. Curry explored these is-
sues, it does not appear that Mr. Robinson followed up or
directed Mr. Curry and HAS to implement the policy re-
quiring use of NEAR and EWL. The record demonstrates
that as of January 3, 2014, “several open action items
[were] still open and delinquent” and EWL had not been
implemented in all “appropriate” outpatient centers. J.A.
1065. “Completion of these actions are required for compli-
ance with VHA Scheduling Directive 2010-027.” Id. OIG
also discovered that “Phoenix leadership did not dissemi-
nate previous communication regarding scheduling best
practices to front line staff and supervisors.” J.A. 816. Mr.
Robinson had a duty to follow up with Mr. Curry and HAS
to ensure compliance with VA policy, but the record does
not show that he did and demonstrates that he did not.
Accordingly, there is substantial evidence to support
the Board’s decision to sustain specifications 1, 2, and 4 of
Charge 1.
ROBINSON v. DVA
13
Specifications 3, 5, and 6
Specifications 3, 5, and 6 also relate to Mr. Robinson’s
failure to ensure that proper scheduling procedures were
implemented. Mr. Robinson’s only point of dispute regard-
ing these specifications is that the Board failed to consider
evidence that any deficiencies stemmed from a lack of re-
sources and infrastructure. This is not correct.
When considering the substantiality of the evidence,
contradictory evidence in the record that may detract from
its weight must also be considered. Frederick, 73 F.3d at
352 (Fed. Cir. 1996) (quoting Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951)). The Board did so here.
It acknowledged testimony that “implementing the EWL
required substantial resources,” that “routinely checking
the EWL would have taken more personnel than the facil-
ity had,” and that “full implementation of the EWL was un-
realistic.” J.A. 22 (internal quotations omitted).
Nonetheless, the Board reasoned that these issues “would
not excuse [Mr. Robinson’s] inaction and failures with re-
spect to the EWL.” J.A. 23; see also J.A. 24 (considering
testimony regarding the impracticality of implementing
Recall/Reminder and the staff required). We agree. Be-
cause the Board properly considered evidence on the lack
of resources to implement all scheduling procedures re-
quired by the Scheduling Directive, we hold that the
Board’s decision to sustain specifications 3, 5, and 6 was
supported by substantial evidence.
B. Charge 2: Failure to Ensure Accuracy of Information
Provided
The VA also charged Mr. Robinson with three specifi-
cations directed to an alleged failure to ensure that the
Phoenix VA provided accurate information to VISN 18.
VISN 18 required Phoenix VA to prepare flowcharts report-
ing scheduling metrics, including the use of EWL. Specifi-
cations 1 and 2 are directed to information within
flowcharts dated November 13, 2013. Specification 3 is
14 ROBINSON v. DVA
directed to the submission of inaccurate information in an
“Outpatient Scheduling Processes and Procedures Check-
list.”
Specifications 1 and 2
Mr. Robinson argues there is no evidence showing he
ever reviewed the November 13, 2013 flowcharts. He also
contends that because the VA did not introduce complete
copies of these flowcharts, he is unable to dispute the claim
that the flowcharts contained inaccurate information. We
address each argument in turn.
Whether Mr. Robinson actually reviewed the Novem-
ber 13, 2013 flowcharts is not material. The issue is
whether the November 13 flowcharts contained inaccurate
information. After examining testimony, emails, and other
evidence, the Board answered that question in the affirm-
ative. We agree.
To sustain specifications 1 and 2, Mr. Robinson need
not have actually reviewed the flowcharts. See Fairall v.
Veterans Admin., 844 F.2d 775, 776 (Fed. Cir. 1998) (find-
ing that negligent performance can include issues of “mis-
conduct, neglect of duty, or malfeasance”). He need only
have breached a duty to ensure that the information within
these flowcharts was accurate. One of Mr. Robinson’s re-
sponsibilities as Associate Director, i.e., a “facility direc-
tor,” was to audit “timeliness and appropriateness of
scheduling actions as well as the accuracy of desired dates.”
J.A. 816. VISN 18 created a “collaborative action plan” to
enable facilities to “to bring key aspects of the Scheduling
Directive into compliance.” J.A. 807, 816; see also J.A.
1065. One component of the action plan was for scheduling
supervisors to review scheduling reports daily, including
the AEG683 report, and summarize these results to lead-
ership weekly. Another action item included creating a
flowchart to show “the facility process from appointment
creation to outcomes metrics.” J.A. 1055; see also J.A. 819.
Mr. Robinson and other Phoenix VA directors were charged
ROBINSON v. DVA
15
with providing monthly, then weekly, updates on Phoenix
VA’s progress. Mr. Robinson recognized it was “important
that we accurately reflect” the scheduling processes at
Phoenix VA and stated he “would have expected to review”
the flowcharts. J.A. 29, 11783. Ms. Bowers, VISN 18’s Di-
rector, asked Mr. Robinson to be involved in the creation of
the flowcharts. Thus, the flowcharts fell within the pur-
view of Mr. Robinson’s job responsibilities.
The record shows that Mr. Robinson neglected his duty
to ensure that the flowchart information submitted to
VISN 18 was accurate. A reasonable, prudent Associate
Director would have ensured that the flowcharts contained
accurate information before transmitting them to VISN 18.
Specifications 1 and 2 alleged that the November 13, 2013
flowcharts reflected that the (1) AEG683 reports were run
daily and that (2) Phoenix VA schedulers were using NEAR
and EWL. But this information was not accurate. A De-
cember 2013 email from Mr. Curry shows that “[t]he AEG
683 Report has not been reproduced routinely for approxi-
mately 4 months.” J.A. 1275–76. In fact, the report had
not been run “consistently” since July 2013. J.A. 1276. As
discussed above, Phoenix VA schedulers were not using
NEAR and EWL to make patient appointments. Section A,
supra. Consequently, substantial evidence supports the
Board’s decision to sustain specifications 1 and 2.
Mr. Robinson argues that because the complete
flowcharts were not submitted before the Board, there was
not substantial evidence to support a determination that
the information contained in the flowcharts was accurate
or inaccurate. We recognize that the Board relied on the
flowcharts to sustain the charge against Mr. Robinson, and
that having the flowcharts in their entirety would have
aided assessment of the allegations. But Mr. Robinson
identifies no violation of his procedural rights in the ab-
sence of full flowcharts, so the only question is one of sub-
stantial evidence. That the Board did not receive complete
copies of the flowcharts does not change the conclusion that
16 ROBINSON v. DVA
Mr. Robinson should have reviewed the flowcharts before
they were sent to VISN 18, or the conclusion that the No-
vember 13 flowcharts contained inaccurate information.
The Board reviewed contemporaneous evidence and
testimony that corroborated the presence of inaccuracies
within the November 13, 2013 flowcharts. In particular,
the Board relied on the testimony of VISN 18 employee
Laurie Graaf, leader of the team overseeing Phoenix VA’s
compliance with the Scheduling Directive, to show VISN
18’s skepticism of the accuracy of the flowchart. The Board
also cited a number of contemporaneous emails that show
that “the flowchart provided inaccurate information about
the AEG683 report.” J.A. 28; see also J.A. 30 (stating
flowcharts were inaccurate); J.A. 1225. Additional testi-
mony indicates that some thought the flowcharts were in-
tended to be “aspirational,” not to capture current
processes. J.A. 26; see also J.A. 1055. Consequently, we
see no error in the Board crediting Ms. Graaf’s testimony,
or the resulting conclusion that the flowcharts contained
inaccurate information. We hold that complete copies of
the November 13 flowcharts were not necessary for the
Board to uphold specifications 1 and 2 where contempora-
neous evidence and record testimony are substantial evi-
dence supporting the Board’s conclusion that the
flowcharts contained inaccurate information.
Specification 3
Specification 3 alleges that Mr. Robinson submitted an
“Outpatient Scheduling Processes and Procedures Check-
list” that inaccurately reported Phoenix VA HAS personnel
as reviewing the NEAR report. Mr. Robinson does not dis-
pute that the checklist responses were inaccurate.
Mr. Robinson argues that specification 3 should not be
sustained because there is no evidence that (1) VISN 18
reviewed the inaccurate “Outpatient Scheduling Processes
and Procedures Checklist”; (2) Mr. Robinson actually re-
viewed the checklist responses; and (3) the checklist,
ROBINSON v. DVA
17
including its accuracy, was one of Mr. Robinson’s job re-
sponsibilities.
As discussed above, whether VISN directors or Mr.
Robinson actually reviewed the checklist is of no matter.
The issue is whether Mr. Robinson, as a reasonable, pru-
dent Associate Director, should have ensured the accuracy
of the checklist.
The Board correctly concluded that Mr. Robinson
should have ensured that accurate responses to the “Out-
patient Scheduling Processes and Procedures Checklist”
were provided to VISN 18. Mr. Robinson’s conduct, and the
conduct of his subordinates, shows that he and others be-
lieved that HAS required Robinson’s approval before the
checklist responses were sent to VISN 18. For example,
after Chief of HAS Mr. Curry reviewed the checklist, an
email was sent to Mr. Robinson “pending your concur-
rence.” J.A. 1103–04. Mr. Robinson responded by compli-
menting Mr. Curry and others on the checklist.
Accordingly, Phoenix VA personnel, including HAS, ex-
pected Mr. Robinson to review the checklist and its re-
sponses, including the accuracy of those responses.
Therefore, it is not unreasonable to conclude that Mr. Rob-
inson had a responsibility to ensure that HAS conveyed to
VISN 18 accurate information about Phoenix VA’s sched-
uling practices and any progress on key action items re-
lated to scheduling. Because there is no dispute as to the
inaccuracy of the checklist, we see no error in the Board’s
determination.
C. Reasonable Removal
We next consider whether substantial evidence sup-
ports the Board’s determination that removal was reason-
able. Mr. Robinson alleges that the Board was required to
18 ROBINSON v. DVA
independently weigh the Douglas 3 factors given that less
than all charges were sustained by the Board. Mr. Robin-
son also contends that removal was unreasonable because
other similarly situated individuals who, according to Rob-
inson, committed greater misconduct, were not removed or
disciplined at all. Mr. Robinson also argues that the Board
erroneously considered “notoriety and [] public outrage” in
its reasonability analysis, but he does not directly chal-
lenge the Board’s finding that removal based on the
charged conduct promoted efficiency. Appellant Br. 49.
To the extent Mr. Robinson contends the Board should
have independently determined a reasonable penalty be-
cause it did not sustain Charge 3 (the whistleblowing
charge), it was not within the Board’s purview to do so. In-
deed, when fewer than all charges are sustained
the Board may mitigate to the maximum reasona-
ble penalty so long as the agency has not indicated
either in its final decision or during proceedings be-
fore the Board that it desires that a lesser penalty
be imposed on fewer charges.
Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999)
(emphases added).
Our case law has explicitly prohibited the Board from
“independently determin[ing] penalties.” Lachance, 178
F.3d at 1259; see also Hathaway v. Dep’t of Justice, 384
F.3d 1342, 1353 (Fed. Cir. 2004); Gray v. U.S. Postal Serv.,
97 M.S.P.R. 617, 621 (2004) (citing Lachance, 178 F.3d at
1260). It is not the Board’s place to “infringe upon an
agency’s exclusive domain as workforce manager” to
3 The Douglas factors are twelve factors to be consid-
ered when determining a reasonable penalty for an agency
employee. Tartaglia v. Dep’t of Veterans Affairs, 858 F.3d
1405, 1408 (Fed. Cir. 2017) (citing Douglas v. Veterans Ad-
min., 5 M.S.P.B. 313, 332 (1981)).
ROBINSON v. DVA
19
“independently institute a new penalty.” Lachance, 178
F.3d at 1258–59 (citing Beard v. Gen. Serv. Admin., 801
F.2d 1318, 1322 (Fed. Cir. 1986)). “[W]e will defer to the
judgment of the agency regarding the penalty unless it ap-
pears totally unwarranted in the circumstances” such that
it constitutes an abuse of discretion. Quinton v. Dep’t of
Transp., 808 F.2d 826, 829 (Fed. Cir. 1986); see also Bryant,
105 F.3d 1416. Simply put, the Board functions to deter-
mine whether or not the agency’s penalty selection was rea-
sonable in light of the sustained charges. See Lachance,
178 F.3d at 1257 (citing Quinton, 808 F.2d at 829).
As for the Douglas factors, we see no error in the
Board’s consideration of whether Robinson’s removal was
excessive given that Charge 3 was not sustained. J.A. 57–
62. For example, the Board contemplated the nature and
seriousness of the offense and its relation to Mr. Robinson’s
duties and position; Mr. Robinson’s supervisory role, in-
cluding the prominence of the Associate Director position;
the duration of Mr. Robinson’s career with the VA and his
lack of previous disciplinary record; the loss of supervisory
confidence in Mr. Robinson’s abilities; and the notoriety of
the offense. In considering these factors, the AJ relied on
his assessment of Mr. Gibson’s testimony. He “found Gib-
son to be a thoughtful, credible witness.” J.A. 52. Mr. Rob-
inson did not challenge Mr. Gibson’s credibility and we see
no basis to undermine the AJ’s credibility determination
here. See Purifoy v. Dep’t of Veterans Affairs, 838 F.3d
1367, 1372 (Fed. Cir. 2016) (stating deference is given to
the AJ’s credibility findings when the AJ “relies expressly
or by necessary implication on the demeanor of the wit-
ness.” (internal citation omitted)). Based on the balance of
these factors, the Board did not “find the agency’s choice of
penalty so excessive as to be an abuse of discretion, or that
it exceeds the maximum reasonable penalty.” J.A. 62. Nor
do the parties contend that the VA indicated it would like
a lesser penalty on fewer charges. Therefore, we see no
20 ROBINSON v. DVA
reversible error in the Board’s interpretation of law or
weighing of the Douglas factors.
Nor did the Board err in considering the notoriety of
the offenses with which Mr. Robinson was charged. Doug-
las specifically recognized “the notoriety of the offense or
its impact upon the reputation of the agency” as relevant
to determining whether a penalty is appropriate.
5 M.S.P.B. at 332. Multiple witnesses testified that the
waitlist improprieties at the heart of Mr. Robinson’s
charges led to “veterans falling through the cracks” and
negatively impacted the reputation of the VA. J.A. 61. Be-
cause Douglas explicitly acknowledges as relevant the “no-
toriety” of the employee’s misconduct and its impact on the
agency, and the AJ assessed the credibility of witnesses on
the issue, substantial evidence supports the Board’s con-
clusion that “the notoriety of the offense was an aggravat-
ing factor.” J.A. 61; see also Haebe v. Dep’t of Justice, 288
F.3d 1288, 1300 (Fed. Cir. 2002) (stating deference is given
to AJ’s findings based on issues of demeanor-based credi-
bility).
Substantial evidence also supports the Board’s decision
that Mr. Robinson did not meet his burden to show dispar-
ate treatment among similarly-situated individuals. Mr.
Robinson argues that other individuals just as, if not more,
culpable for the charged offenses were not removed, and
therefore his removal was unreasonable. Mr. Robinson
once again appears to misunderstand the allegations
against him. He contends that no other supervisors in
other VA medical centers suffering from scheduling issues
were disciplined for negligent supervision. As discussed
above, however, Mr. Robinson is charged with negligently
performing his own duties, not for failure to supervise em-
ployees. Therefore, any “similarly-situated employees” he
identified were likely not charged with similar misconduct.
The evidence also belies Mr. Robinson’s argument. The
Board credited Mr. Gibson’s testimony that other
ROBINSON v. DVA
21
employees charged with similar misconduct either retired
or resigned before the agency could remove them. There-
fore, there was no opportunity for the VA to treat those in-
volved inconsistently because those individuals voluntarily
left the VA. The record also shows that the VA removed
other managers at Phoenix VA involved in the scheduling
failures, including Mr. Curry. In contrast, Mr. Robinson
fails to identify as comparators particular individuals in
upper management at the VA accused of similar miscon-
duct who were not removed. See Boucher v. U.S. Postal
Serv., 2012 M.S.P.B. 126, ¶ 20 (2012) (“To establish dispar-
ate penalties, the appellant must show that there is
‘enough similarity between both the nature of the miscon-
duct and the other factors to lead a reasonable person to
conclude that the agency treated similarly-situated em-
ployees differently.’” (quoting Lewis v. Dep’t of Veterans Af-
fairs, 2010 M.S.P.B. 98, ¶ 15 (2010))). He appears to only
make general allegations that “he had been treated much
more harshly than others in similar circumstances.” Ap-
pellant Br. 52. Without more, we are unable to discern
whether these other individuals are “similarly-situated
employees” whose “nature of . . . misconduct and . . . other
factors . . . lead a reasonable person to conclude that the”
VA treated Mr. Robinson differently. Lewis, 2010 M.S.P.B.
98, ¶ 15.
We note that “the AJ need not consider every one of the
12 Douglas factors mechanistically by a preordained for-
mula.” Webster v. Dep’t of Army, 911 F.2d 679, 686 (Fed.
Cir. 1990) (internal quotation marks and brackets omit-
ted). The length and detail of the Board’s discussion of Mr.
Robinson’s misconduct throughout the remainder of the
opinion is relevant to numerous Douglas factors, including
the seriousness of the offense. We have found that this
type of analysis “need not be repeated in the penalty dis-
cussion,” but rather the opinion should be read as a whole.
Id. at 688. Therefore, on this record, substantial evidence
22 ROBINSON v. DVA
supports the conclusion that Mr. Robinson’s removal was
reasonable.
D. Whistleblowing Retaliation Defense
Turning to Mr. Robinson’s whistleblower retaliation
defense, he contends that the VA failed to establish by clear
and convincing evidence that he would have been removed
regardless of his protected disclosure to Congress about Dr.
Shulkin’s inaccurate testimony. 4 The question before us is
whether the Board erred in finding that the VA would have
removed Mr. Robinson absent his protected disclosure. See
5 U.S.C. § 1221(e)(2).
To evaluate whether the VA would have taken the
same action in the absence of Mr. Robinson’s protected dis-
closure, we look at the Carr factors:
the strength of the agency’s evidence in support of
its personnel action; the existence and strength of
any motive to retaliate on the part of the agency
officials who were involved in the decision; and any
evidence that the agency takes similar actions
against employees who are not whistleblowers but
who are otherwise similarly situated.
Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir.
1999). The VA need not produce evidence with regard to
each of these factors, nor must each factor weigh in favor
of the agency for the VA to carry its burden. Whitmore v.
Dep’t of Labor, 680 F.3d 1353, 1374 (Fed. Cir. 2012). In-
stead, we consider the record as a whole and balance the
Carr factors to determine whether substantial evidence
supports the Board’s finding that the VA clearly and
4 The AJ determined that Mr. Robinson’s statements
to the Senate Committee were protected disclosures under
5 U.S.C. § 2302(b)(8)(A) and that these disclosures contrib-
uted to his removal. No party disputes these findings.
ROBINSON v. DVA
23
convincingly proved it would have removed Mr. Robinson
independent of his protected disclosures. Miller v. Dep’t of
Justice, 842 F.3d 1252, 1263 (Fed. Cir. 2016) (“Miller
DOJ”); see also Whitmore, 680 F.3d at 1374 (“Evidence 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.”).
Regarding the first Carr factor, the Board found that
the VA had strong evidence to support removal. We have
already concluded that substantial evidence supports a
finding that Mr. Robinson was negligent in performing his
duties as Associate Director and that he failed to ensure
that Phoenix VA transmitted accurate information to VISN
18. Therefore, the evidence and the first Carr factor
strongly support the VA’s decision to remove Mr. Robinson.
Turning to the second Carr factor, a motive to retaliate,
the AJ concluded that Deputy Secretary Gibson—the De-
ciding Official—“did not have retaliatory motive” because
Mr. Robinson’s statements “targeted Shulkin, not Gibson.”
J.A. 48. It appears the AJ failed to consider whether Mr.
Gibson had any motive to retaliate against Mr. Robinson
for statements implicating the perceived ineptitude and de-
ceit of the VA.
We have explained that
those responsible for the agency’s performance
overall may well be motivated to retaliate even if
they are not directly implicated by the disclosures,
and even if they do not know the whistleblower per-
sonally, as the criticism reflects on them in their
capacities as managers and employees.
Miller DOJ, 842 F.3d at 1261–62 (quoting Whitmore, 680
F.3d at 1370). While Mr. Gibson may not have had a per-
sonal motive to retaliate against Mr. Robinson for contra-
dicting Under Secretary Shulkin, the AJ did not expressly
24 ROBINSON v. DVA
discuss whether Mr. Gibson had a professional retaliatory
motive. Mr. Robinson’s statements to the Senate Commit-
tee implicated the capabilities, performance, and veracity
of VA managers and employees, and implied that the VA
deceived the Senate Committee. These statements oc-
curred months before Robinson’s second notice of removal.
Yet the AJ appeared to dismiss wholesale Gibson’s motives
to retaliate. Thus, it is not clear that the evidence supports
the VA for this Carr factor.
Nonetheless, in light of Mr. Gibson’s credited testi-
mony, the Board’s conclusion that he lacked motive to re-
taliate is not unreasonable. In discussing Mr. Gibson’s
retaliatory motive (or lack thereof), the AJ incorporated by
reference discussion of Mr. Robinson’s due process defense.
There, the AJ concluded that “Gibson was not biased.” J.A.
52; see also id. (“I find that [Gibson] considered the record
as a whole and kept an open mind.”). The AJ based his
conclusion on an assessment of Mr. Gibson’s credibility and
demeanor, relying on Gibson’s testimony to conclude that
Gibson (1) acknowledged that disciplinary matters affect
the VA in addition to those disciplined; (2) spent a lot of
time assessing the evidence against Mr. Robinson; and
(3) was misquoted in the New York Times article where he
allegedly stated removal of Phoenix VA personnel will
“help VA ‘move past’ the wait-time scandal that has con-
sumed the agency for nearly two years.” J.A. 7187. The AJ
also gave weight to the fact that Mr. Gibson did not sustain
Charge 3, the whistleblower retaliation charge. Given the
AJ’s reliance on Mr. Gibson’s testimony, the AJ did not un-
reasonably conclude that Mr. Gibson had no retaliatory
motive, either professionally or personally. The second
Carr factor therefore slightly favors the VA.
Finally, Mr. Robinson contends that the VA failed to
provide any evidence that it treated him the same as simi-
larly situated individuals, and that those individuals did
not make protected disclosures. The Board found that
there was “mixed evidence” as to whether the VA doled out
ROBINSON v. DVA
25
analogous discipline to similarly situated individuals. J.A.
48. For example, the VA removed Mr. Robinson’s direct
supervisor, Ms. Helman, the Director of Phoenix VA; Dr.
Deering, Chief of Staff; and Mr. Robinson’s direct subordi-
nate, Mr. Curry, Chief of HAS. Helman and Curry were
similarly situated individuals, having supervisory posi-
tions at Phoenix VA and responsible for overseeing sched-
uling issues. See Carr, 185 F.3d at 1326–27 (“For an
employee to be considered similarly situated to an individ-
ual who is disciplined, it must be shown that the conduct
and the circumstances surrounding the conduct of the com-
parison employee are similar to those of the disciplined in-
dividual.”). The AJ weighed the removal of Helman,
Deering, and Curry against Robinson’s assertion that indi-
viduals at other VA centers were not removed despite their
scheduling improprieties. Based on the entirety of the ev-
idence, the AJ concluded that this factor “neither helps nor
hurts the agency’s case.” J.A. 49.
Indeed, the AJ did not affirmatively conclude that Hel-
man, Deering, and Curry were similarly situated. Nor did
he conclude that these individuals had not made protected
disclosures. Similarly, the AJ did not affirmatively state
that VA personnel at other agency centers suffering from
scheduling mishaps were similarly situated. Instead, the
AJ presumed that all individuals considered under this fac-
tor—Helman, Deering, Curry, and VA personnel identified
by Mr. Robinson—were “non-whistleblowers.” J.A. 48
(stating “and which I assume, without deciding, involved
non-whistleblowers.”). Likewise, it appears that the AJ as-
sumed everyone identified in relation to this factor was
treated similarly to Mr. Robinson. This mixed record
causes the last Carr factor to be neutral. Accordingly, it
was not unreasonable for the AJ to count it as neutral.
In considering the evidence in the aggregate, including
the strength of Carr factor one, the Board’s conclusion that
the VA met its clear and convincing burden was supported
by substantial evidence.
26 ROBINSON v. DVA
E. Due Process
We next turn to Mr. Robinson’s procedural due process
arguments. Mr. Robinson does not dispute that he received
notice of the charges against him. Nor does he argue that
the VA’s notice of removal was deficient in any way. In-
stead, Mr. Robinson contends that Mr. Gibson and the VA
violated Robinson’s due process rights by determining his
termination before he had the opportunity to respond to the
second notice of proposed removal. He argues that Mr. Gib-
son’s New York Times statements, other public statements
presupposing the removal of VA officials, and the fact that
Gibson was both the Proposing Official and Deciding Offi-
cial all show that “Robinson’s removal was a foregone con-
clusion.” Appellant Br. 26. Mr. Robinson also contends
that the AJ erred when he failed to assess all the evidence
showing that Mr. Gibson and the VA were intent on remov-
ing Robinson from the outset, or at the very least, gave the
appearance of having already predetermined the outcome.
One of the fundamental requirements of due process is
“that an individual be given an opportunity for a hearing
before he is deprived of any significant property interest.”
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542
(1985) (emphasis in original) (quoting Boddie v. Conn., 401
U.S. 371, 379 (1971)). This requirement may be fulfilled by
“some kind of a hearing.” Id. (quoting Bd. of Regents v.
Roth, 408 U.S. 564, 570 n.7 (1972)). In other instances, the
requirement may be satisfied by an opportunity to respond.
Id.; see also id. at 546 (“The essential requirements of due
process . . . are notice and an opportunity to respond.”).
We have stated that public employees in Mr. Robin-
son’s position have a property interest in their continued
employment. Stone v. F.D.I.C., 179 F.3d 1368, 1374–75
(Fed. Cir. 1999) (collecting cases). As a public employee,
Mr. Robinson was therefore entitled to an opportunity to
be heard prior to any decision of removal. But the record
appears to indicate that Mr. Robinson was not afforded an
ROBINSON v. DVA
27
opportunity to respond to the second notice of removal be-
fore public statements regarding his termination were
made.
Statements credited to Mr. Gibson in the New York
Times, for example, are greatly troublesome. The article
describes Gibson as disappointed that it took so long to re-
move Robinson, Deering, and Curry, who presumably are
responsible for a “national scandal . . . over secret waiting
lists and unnecessary deaths.” J.A. 7186. The March 15,
2016 article and Mr. Gibson’s alleged statements paint a
picture showing Mr. Robinson to be responsible, in part, for
the “wait-time scandal” and that Mr. Gibson made up his
mind about Robinson’s guilt before he was served with the
second proposal of removal on March 16, 2016. Thus, it
appears that Gibson publicly announced Robinson’s termi-
nation before Robinson even knew about the proposed re-
moval. The public statements about Robinson and his
removal would appear on their face to violate Mr. Robin-
son’s due process rights.
While Mr. Gibson’s alleged New York Times statements
are troubling, the AJ credited Mr. Gibson’s testimony that
he was misquoted by the article’s author. The AJ also re-
lied on Mr. Gibson’s testimony that “he did not predeter-
mine the outcome of the case” and that Gibson gave the
evidence “a lot of deliberation.” J.A. 52. Other than gen-
eral accusations of bias, Mr. Robinson does not contend
that Mr. Gibson is untruthful or that his testimony is oth-
erwise impeachable. As discussed above, the AJ thought
Gibson to be a credible witness and we will not disturb find-
ings relying on Gibson’s testimony. See Chauvin v. Dep’t of
Navy, 38 F.3d 563, 566 (Fed. Cir. 1994) (stating a finding
based on the demeanor of a witness, whether expressly or
implicitly, cannot be overturned without “articulated
sound reasons” (citing Jackson v. Veterans Admin., 768
F.2d 1325, 1331 (Fed. Cir. 1985))).
28 ROBINSON v. DVA
Mr. Robinson contends that other occurrences indicate
that he did not receive the pretermination consideration he
is entitled to under the Due Process Clause. For instance,
Mr. Robinson contends that political pressure and public
assurances that those responsible at the VA would be re-
moved indicate that Robinson was guaranteed to be re-
moved from the outset. Mr. Robinson also argues that the
fact that Mr. Gibson replaced Kevin Hanretta as Deciding
Official shows the VA’s effort to ensure a preferred out-
come. Finally, Mr. Robinson contends that Mr. Gibson ex-
hibited his pretermination bias by accusing Robinson of
whistleblower retaliation (Charge 3) even though the same
charge was previously rejected by the Board in a different
case. We address each of these in turn.
First, the Board addressed and dismissed Mr. Robin-
son’s “political pressure” argument because statements
made by the President and Congress only promised disci-
plinary action if misconduct was found. No political entity
required removal prior to an opportunity to be heard.
Second, we have previously noted that “[a]t the pre-ter-
mination stage, it is not a violation of due process when the
proposing and deciding roles are performed by the same
person.” DeSarno v. Dep’t of Commerce, 761 F.2d 657, 660
(Fed. Cir. 1985); see also Holton v. Dep’t of Navy, 884 F.3d
1142, 1150 (Fed. Cir. 2018). Thus, the fact that Mr. Gibson
was both the proposing official and the deciding official
does not show that Mr. Robinson did not receive pretermi-
nation due process.
Third, Mr. Gibson’s discussion of Charge 3 in the Deci-
sion Regarding Proposed Removal shows that he took into
consideration Mr. Robinson’s response to the second notice
of proposed removal. Mr. Robinson’s written response to
the removal allegations is dated April 20, 2016, and ad-
dresses all specifications to Charge 3 (the whistleblower re-
taliation charge). Mr. Gibson’s removal decision is dated
June 7, 2016. In the Decision Regarding Proposed
ROBINSON v. DVA
29
Removal, Mr. Gibson stated he was persuaded by Robin-
son’s explanation of one of the specifications, and as a re-
sult, did not sustain that particular specification to Charge
3. Therefore, based on this record, it is not unreasonable
to conclude that Mr. Gibson fully considered Mr. Robin-
son’s response prior to deciding his removal. See
Loudermill, 470 U.S. at 545–46 (stating a pretermination
opportunity to respond “should be an initial check against
mistaken decisions—essentially, a determination of
whether there are reasonable grounds to believe that the
charges against the employee are true and support the pro-
posed action.”); accord Hodges v. U.S. Postal Serv., 2012
M.S.P.B. 116, ¶ 6 (2012) (“We find the deciding official’s
complete failure to consider the appellant’s written re-
sponse to the proposal notice before issuing a decision con-
stitutes—in and of itself—a violation of minimum due
process law.”).
In any event, Mr. Robinson’s implication that Charge 3
could not have been brought at all in the face of the Board’s
prior decision is incorrect. The AJ relied on collateral es-
toppel to reject only one of the five other specifications to
Charge 3. The remaining specifications were not sustained
due to alternate grounds. Thus, the fact that Mr. Gibson
sustained Charge 3 on the remaining specifications not-
withstanding Mr. Robinson’s written response is no indica-
tion of a due process violation or that Mr. Robinson’s
removal was a foregone conclusion.
Mr. Robinson clearly had notice and a pretermination
opportunity to be heard. His response swayed Mr. Gibson
to dismiss one of the original Charge 3 specifications. Mr.
Robinson therefore had a meaningful opportunity to re-
spond prior to his disciplinary action. See Loudermill, 470
U.S. at 546 (“The opportunity to present reasons, either in
person or in writing, why proposed action should not be
taken is a fundamental due process requirement.”). We see
no error in the Board’s conclusion that Mr. Robinson failed
to show that his removal was predetermined. See id.
30 ROBINSON v. DVA
(stating that to require more than notice of the charges, an
explanation of the evidence, and an opportunity to be heard
“would intrude to an unwarranted extent on the govern-
ment’s interest in quickly removing an unsatisfactory em-
ployee.”).
CONCLUSION
For the foregoing reasons, we affirm the judgment of
the Board.
AFFIRMED
COSTS
No costs.