NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN PAUL REDMOND,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2018-2233
______________________
Petition for review of the Merit Systems Protection
Board in No. NY-1221-18-0025-W-1.
______________________
Decided: February 8, 2019
______________________
JOHN PAUL REDMOND, East Moriches, NY, pro se.
ADAM E. LYONS, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by JOSEPH H.
HUNT, DEBORAH ANN BYNUM, ROBERT EDWARD
KIRSCHMAN, JR.
______________________
Before DYK, CHEN, and HUGHES, Circuit Judges.
2 REDMOND v. DVA
PER CURIAM.
John Paul Redmond appeals the decision of the Merit
Systems Protection Board (Board) denying him relief under
the Whistleblower Protection Act from personnel actions
taken against him by the Department of Veterans Affairs
(VA). Because the Board’s decision is supported by sub-
stantial evidence, we affirm.
BACKGROUND
Mr. Redmond was employed by the VA as a contract
specialist between October 2013 and September 2017,
when he resigned. His duties included procuring goods and
services for the agency. Appx 2. 1
The central dispute on appeal concerns Mr. Redmond’s
claim that he was unlawfully reprimanded at work after
disclosing problems with certain contractors at the VA’s
Northport Medical Center in New York.
Id. Specifically,
in February 2016, a company called Media Plumbing per-
formed an inspection at the facility, and Mr. Redmond tes-
tified that due to an error, multiple operating rooms at the
facility were contaminated and had to be closed for cleanup
at significant cost to the VA.
Id. Mr. Redmond opined that
the error would not have occurred if a different contractor,
Quality Services International (QSI), had performed the
work under an existing contract.
Id. In 2016, Mr. Red-
mond reported to the office of New York Congressman Lee
Zeldin and to the VA’s Inspector General that he believed
QSI was underperforming on its contract and that QSI
should have been disqualified from further work due to its
record of poor performance and irregularities with invoic-
ing. Appx 2–3, 6. Mr. Redmond also told the Inspector
General that he believed Northport’s former director Phil-
lip Moschitta lied in a congressional hearing in September
1 “Appx” refers to pages in the appendix filed by the
VA with its brief.
REDMOND v. DVA 3
2016, because “Moschitta claimed that the contamination
of the operating rooms occurred as the result of a power
surge, when in reality, the inspection of the fire dampers
and HVAC system caused the issue.” Appx 6.
In the spring of 2017, Mr. Redmond had some conflicts
with his supervisors at the VA. On April 5, 2017, Mr. Red-
mond’s supervisor Lawrence Unger sent a performance
counseling letter to Mr. Redmond listing three instances in
which Mr. Unger asserted that Mr. Redmond had acted in-
appropriately toward VA customers. Appx 90–91. 2 On
May 9, 2017, Mr. Unger sent a proposed reprimand to Mr.
Redmond charging him with five instances of “unaccepta-
ble conduct” in the time following the April 5 letter. These
included, among other things, “purposely delay[ing] acqui-
sition[s]” and accusing a vendor of having “under table
agreements.” Appx 48. The VA division chief, Hope Free-
man, approved the reprimand. Appx 9. Mr. Redmond also
argued before the Board that the VA denied his request for
reassignment on March 27, 2017. Appx 4.
Mr. Redmond initiated this action with the Board in
late 2017. The Board found that Mr. Redmond submitted
insufficient evidence to support a finding that he made a
protected disclosure under the Whistleblower Protection
Act protesting Media Plumbing’s inspection of the North-
port Medical Center. Appx 6–7. The Board also found that
Mr. Redmond submitted insufficient evidence to support a
reasonable belief that Mr. Moschitta lied to Congress.
Appx 7. The Board further found that Mr. Redmond failed
to submit sufficient evidence that the VA denied him any
reassignment. Appx 10. On the other hand, the Board
2 For example, the letter criticized Mr. Redmond for
“not effectively work[ing] with the customer and
manag[ing] customer expectations” in “securing an option
for a Laser Microscope Project for the Bronx VAMC.” Appx
90.
4 REDMOND v. DVA
found that Mr. Redmond had shown that he disclosed to
Congressman Zeldin and the Inspector General that he had
reasonable belief that QSI was billing for work not per-
formed. See Appx 8. Further, the Board found that Mr.
Redmond’s disclosures contributed to his reprimand. Appx
8–9. However, the Board found by clear and convincing ev-
idence that the VA would have issued the reprimand not-
withstanding Mr. Redmond’s protected activity. Appx 10–
11. Thus, the Board denied Mr. Redmond’s request for cor-
rective action.
Mr. Redmond appealed. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our authority to review a decision of the Board is lim-
ited by statute. We will only set aside the Board’s decision
if it is “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c); Snyder v. Dep't of the Navy,
854 F.3d
1366, 1372 (Fed. Cir. 2017). “Substantial evidence is ‘such
relevant evidence as a reasonable mind might accept as ad-
equate to support a conclusion.’”
Id. (citation omitted).
I. Whistleblower Defense
Because the VA’s purported basis for reprimanding 3
Mr. Redmond relates to statements in emails that Mr.
3 Mr. Redmond apparently argued to the Board that
the VA retaliated against him by assigning him to work at
the Bronx VA facility rather than the Northport VA facil-
ity. See Appx 9. The Board found that Mr. Redmond pro-
vided inconsistent testimony about whether the VA denied
his request for a reassignment or not.
Id. The Board cred-
ited testimony from the VA’s director of contracting and
REDMOND v. DVA 5
Redmond does not deny writing, the only issue on appeal is
whether the VA’s actions constitute unlawful retaliation.
The Whistleblower Protection Act of 1989 prohibits an
agency from taking or failing to take a “personnel action” 4
regarding an employee because of “any disclosure of infor-
mation by [such] employee . . . which the employee . . . rea-
sonably believes evidences—(i) any violation of any law,
rule, or regulation, or (ii) gross mismanagement, a gross
waste of funds, an abuse of authority, or a substantial and
specific danger to public health or safety . . . .” 5 U.S.C.
§ 2302(b)(8). Whistleblower retaliation is an affirmative
defense. The employee must first show by a preponderance
of the evidence that he made a protected disclosure and
that the disclosure was a contributing factor in the person-
nel action against him. 5 U.S.C. § 1221(e)(1); Carr v. Social
Sec. Admin.,
185 F.3d 1318, 1322 (Fed. Cir. 1999). If the
employee satisfies this burden, the burden shifts to the
agency to show “by clear and convincing evidence that it
would have taken the same personnel action in the absence
of such disclosure.” 5 U.S.C. § 1221(e)(2).
The Board found that Mr. Redmond established a
prima facie case of retaliation based on a protected disclo-
sure of erroneous invoicing. Specifically, the Board found
that it was reasonable for Mr. Redmond to believe that QSI
found that the VA eventually approved Mr. Redmond’s re-
quest for a transfer on May 2, 2017.
Id. Thus, the Board
found that Mr. Redmond failed to show that the agency de-
nied him any reassignment. Appx 10. While Mr. Redmond
mentions a transfer request for the first time on appeal in
his reply brief, he does not suggest that the Board’s find-
ings regarding reassignment are erroneous. See Reply Br.
2.
4 A “personnel action” includes, among other things,
“disciplinary or corrective action” and a “transfer or reas-
signment.” 5 U.S.C. § 2302(a)(2)(A).
6 REDMOND v. DVA
was billing for work not performed and that this practice
violated the law. Appx 8. The Board found that Mr. Red-
mond disclosed his belief in this alleged erroneous invoic-
ing to Congressman Zeldin and the VA’s Inspector General.
Appx 2–3, 8. Furthermore, the Board found that because
Ms. Freeman and Mr. Unger knew that Mr. Redmond as-
serted whistleblower protection before the May 9, 2017 de-
cision to reprimand him, Mr. Redmond satisfied his burden
of showing that his protected disclosure was a contributing
factor in his reprimand. Appx 9. The VA does not chal-
lenge these findings on appeal. VA Br. 14–15. Thus, Mr.
Redmond satisfied his initial burden, and the burden
shifted to the VA to show it would have taken the same
personnel actions in the absence of such a disclosure. 5
In determining whether an agency would have taken a
personnel action in the absence of a protected disclosure,
the Board may consider: (1) “the strength of the agency’s
evidence in support of its personnel action;” (2) “the exist-
ence and strength of any motive to retaliate on the part of
the agency officials who were 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, 185 F.3d at 1323.
However, “Carr does not impose an affirmative burden on
the agency to produce evidence with respect to each and
every one of the three Carr factors to weigh them each in-
dividually in the agency’s favor.” Whitmore v. Dep’t of La-
bor,
680 F.3d 1353, 1374 (Fed. Cir. 2012).
5 We also see no error with the Board’s rejection of
Mr. Redmond’s claims that he made additional protected
disclosures that Media Plumbing should not have per-
formed the inspection at the Northport facility or that the
Northport facility’s director lied to Congress.
REDMOND v. DVA 7
A. Evidence in Support of the VA’s Action
The Board found that Mr. Redmond engaged in “sev-
eral instances of insubordination over a one-month period.”
Appx 11. Mr. Unger’s May 9, 2017 letter proposing a rep-
rimand describes five instances of “unacceptable conduct.”
Appx 48. First, in an email disagreement with a director
at Olympus, one of the VA’s vendors, Mr. Redmond wrote:
“Perhaps, this is why under table agreements with small
businesses should be evaluated more carefully.” Appx 48;
Appx 88.
Second, on April 19 and 20, 2017, in a discussion re-
garding leasing medical equipment, Mr. Redmond re-
sponded to criticism from Mr. Unger by calling Mr. Unger
“dishonorable” and stating, “[m]anagement of large prod-
ucts require [sic] ethics which you lack.” Appx 75–76.
Third, on April 25, 2017, a VA supervisor named Vivian
Torres complained to Mr. Unger that Mr. Redmond sent
“unprofessional” communications and that “Mr. Redmond
purposely delays acquisition LEAD time and has become
problematic to myself, the Medical Center CORs and other
employees.” Appx 65. The Board found Ms. Torres’s testi-
mony credible in part because she was outside the chain of
command of Ms. Freeman, who approved Mr. Redmond’s
reprimand, Appx 11, though Mr. Redmond argues that Ms.
Torres used to work for Ms. Freeman, Reply Br. 3.
Fourth, on April 25, 2017, Mr. Unger submitted a mid-
year review for Mr. Redmond, which stated that Mr. Red-
mond’s performance “needs improvement.” Appx 61. In an
email to Mr. Unger, Mr. Redmond refused to sign the per-
formance review and wrote, “I encourage you to use moral
integrity and principles to base future contracting deci-
sions.” Appx 57. He then claimed that Mr. Unger “com-
bined documents to give the appearance that I signed the
mid-year review.” Appx 56. The copy of the review in the
record on appeal states, “Employee Refused to Sign” in a
box marked “Signature of Employee.” Appx 61.
8 REDMOND v. DVA
Fifth, between April 26, 2017 and May 2, 2017, Mr.
Redmond and Mr. Unger engaged in an email dispute over
Mr. Redmond’s request to work at the Northport VA facil-
ity rather than the Bronx facility. Appx 50–54. Mr. Unger
offered to allow Mr. Redmond to work from Northport one
day a week and instructed him to report to the Bronx until
Mr. Unger confirmed space availability at Northport. Appx
51. Mr. Redmond’s response emails were argumentative
and attacked Mr. Unger’s character. Appx 50–51.
Each of the VA’s claims of misconduct is supported by
emails in the record, and Mr. Redmond does not dispute
that he wrote any of the statements attributed to him.
Thus, clear and convincing evidence supports the Board’s
finding that Mr. Redmond committed the specified miscon-
duct.
B. Motive to Retaliate
Although Mr. Redmond established by a preponder-
ance of evidence that his protected disclosure contributed
to his May 9, 2017 reprimand, the Board found that Ms.
Freeman, who approved the reprimand, “had very little
motive to retaliate here.” Appx 11. The Board cited testi-
mony that “QSI’s contracts were awarded by consensus of
a group of people, to include a subject matter expert, and
were submitted to various levels of review.” Appx 11. The
Board noted that Ms. Freeman and Mr. Unger “testified
without contradiction that they suffered no personal conse-
quences from the Congressional investigation” and that
“the record does not contain evidence that any punishment
or censure to the agency resulted from the appellant’s dis-
closure.” Appx 11.
While Mr. Redmond claims that the Board improperly
ignored various pieces of evidence, he does not argue that
the excluded evidence relates to motivation to retaliate.
See Appellant Informal Br. at Answers 2, 4, 5. Mr. Red-
mond asserts that “[t]he facility maintenance contract was
one of the many awards to QSI by Hope Freeman and her
REDMOND v. DVA 9
Lieutenants,” which he characterizes as “collusion.” Reply
Br. 2. Even if we were to consider this argument, which
was made for the first time on appeal in Mr. Redmond’s
reply brief and therefore improper, unsworn statements by
advocates are not evidence, and Mr. Redmond cites no evi-
dence in the record in support of his “collusion” claim. Even
assuming Ms. Freeman or Mr. Unger awarded work to QSI,
Mr. Redmond does not explain how that fact would lead to
an inference of retaliation.
The weight to be given to the evidence of record is a
“judgment call[] that rest[s] primarily within the discretion
of the Board.” Koenig v. Dep’t Of Navy,
315 F.3d 1378, 1381
(Fed. Cir. 2003). Based on the record before us, we find
that the Board did not abuse its discretion in finding that
the evidence of motivation to retaliate was relatively weak.
C. Treatment of Others Who Were Similarly Situated
The Board found that “the record does not indicate that
another, non-whistleblower was treated preferentially un-
der similar circumstances.” Appx 11. It was the VA’s bur-
den to submit evidence in support of the third Carr factor,
and we interpret the Board’s brief statement to mean that
the VA declined to submit any such evidence. We have held
that “the absence of any evidence relating to Carr factor
three can effectively remove that factor from the analysis.”
Whitmore, 680 F.3d at 1374. Because the record is devoid
of evidence of others who were accused of similar miscon-
duct, we decline to consider this factor in determining
whether the VA would have reprimanded Mr. Redmond in
the absence of his protected disclosures.
D. Findings Based on Carr Factors
The Board concluded that the VA “demonstrated
clearly and convincingly that it would have reprimanded
the appellant notwithstanding his protected activity.”
Appx 11. The Board correctly found that the evidence that
Mr. Redmond engaged in several instances of misconduct
10 REDMOND v. DVA
was clear and convincing. Moreover, Mr. Redmond cited
no evidence contrary to the testimony cited by the Board to
find that Mr. Redmond’s supervisors had little motive to
retaliate. It is not for this court to reweigh evidence on ap-
peal, and we see no reversible error in the Board’s conclu-
sion that “a reprimand was very reasonable for several
instances of insubordination over a one-month period.” Ac-
cordingly, we affirm the Board’s finding that the VA would
have reprimanded Mr. Redmond notwithstanding his dis-
closure of alleged invoicing problems.
II. Evidentiary Arguments and Motions
It appears that many of Mr. Redmond’s arguments at-
tempt to show that the VA improperly awarded contracts
to QSI and that VA personnel tried to hide this develop-
ment. 6 These allegations, if true, would be troubling, but
the Board did not abuse its discretion in declining to con-
sider the evidence Mr. Redmond cites to support them.
This is because the proffered evidence is either irrelevant
or unnecessary to decide whether the VA would have rep-
rimanded Mr. Redmond in the absence of whistleblowing.
The Board already found that Mr. Redmond made a pro-
tected disclosure regarding alleged erroneous invoicing,
Appx 8, and so the Board did not need to further consider
alleged government waste. Accordingly, Mr. Redmond’s
“Motion for Record” (ECF No. 34) and “Motion of Record
6 See, e.g., Appellant Informal Br. at Answer 2 (as-
serting that the Board “purposely suppressed evidence of
massive government waste” and “ignored all motions for
evidence including original contract . . . and congressional
hearing statements”);
id. at Answer 4 (asserting that the
“statement of work has sections that were deleted from the
original contract relevant to the case”);
id. at Answer 5 (ar-
guing that “[f]or years QSI and J&J services did nothing to
support the facility” and that “[t]his is a total cover up on a
massive scale”).
REDMOND v. DVA 11
and Supplementary Evidence of Congressional Hearing at
Northport VA and Awards” (ECF No. 35) are denied.
Mr. Redmond’s “Motion of Record Office of Special
Counsel Letter for Petitioner” (ECF No. 37) is denied as
moot because the document Mr. Redmond seeks to add to
the record was already attached to the VA’s appendix at
Appx 45.
CONCLUSION
We have reviewed Mr. Redmond’s remaining argu-
ments and consider them unpersuasive. For the foregoing
reasons, we affirm the Board’s decision.
AFFIRMED
COSTS
No costs.
