Khurshid Muhammad v. Department of Veterans Affairs ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KHURSHID KHAN MUHAMMAD, DOCKET NUMBERS
Appellant, DE-1221-15-0371-W-2
DE-1221-16-0182-W-1
v.
DEPARTMENT OF VETERANS
AFFAIRS, DATE: February 21, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Khurshid Khan Muhammad, Artesia, California, pro se.
Tanya Burton, Bay Pines, Florida, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
denied his requests for corrective action in these joined individual right of action
(IRA) appeals. For the reasons discussed below, we GRANT the appellant’s
petition for review, AFFIRM the administrative judge’s findings denying
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
corrective action concerning the alleged termination of his appointment, denial of
work, and termination of his clinical privileges, and REMAND the appeals to the
Denver Field Office for further adjudication regarding the appellant’s request for
corrective action concerning the alleged threat to terminate his appointment.
BACKGROUND
¶2 The appellant filed a timely IRA appeal alleging that the agency retaliated
against him for protected whistleblowing disclosures by threatening to terminate
and then terminating his appointment in November 2014. Muhammad v.
Department of Veterans Affairs, MSPB Docket No. DE-1221-15-0371-W-1,
Initial Appeal File (0371 IAF), Tab 1. The appellant later filed a second IRA
appeal alleging that the agency retaliated against him for protected
whistleblowing disclosures when it terminated his clinical privileges and refused
to assign him work. Muhammad v. Department of Veterans Affairs, MSPB
Docket No. DE-1221-16-0182-W-1, Initial Appeal File (0182 IAF), Tab 1. The
administrative judge joined the two appeals. Muhammad v. Department of
Veterans Affairs, MSPB Docket No. DE-1221-15-0371-W-2, Refiled Appeal File
(0371 RAF), Tab 3; 0182 IAF, Tab 7.
¶3 The first appeal arose from the appellant’s October 20, 2014 appointment as
a Fee Basis Physician at the New Mexico Veterans Affairs Healthcare System in
Albuquerque, New Mexico. 0371 IAF, Tab 1 at 11; 0371 RAF, Tab 43 at 4. The
appointment covered the period from October 20, 2014, through September 30,
2015, and provided that the appellant would receive $80.00 per patient visit. 2
2
Under 38 U.S.C. § 7405(a)(2)(A), the agency is authorized to employ medical
providers on a fee basis. See 38 U.S.C. § 7401(1). The agency hires permanent,
temporary, and “fee basis” physicians. Hearing Compact Disc (testimony of Executive
Director, Primary Care Operations). Permanent staff physicians may be either full -time
or part-time. Id. Locum tenens physicians are salaried staff physicians hired under
temporary appointments and deployed to sites where the agency needs additional
physicians. Id. Fee Basis Physicians are also temporary appointees, but they receive a
set fee per visit or procedure rather than a salary and benefits. Id. Fee Basis Physicians
3
0371 RAF, Tab 43 at 4. The appointment letter listed a maximum utilization
limit of $300,000 per year but stated that neither the agency nor the appellant was
obligated to reach that limit. Id.¶4 Before any physician begins employment at an agency facility, the agency’s
credentialing department must check his or her credentials and issue clinical
privileges. Hearing Compact Disc (HCD) (testimony of credentialing Program
Specialist). The credentialing department is also responsible for terminating
clinical privileges for physicians who no longer work at the facility. Id. When a
physician departs the facility, the agency conducts an exit interview, in which it
documents the reason for the departure. Id. If a physician has been terminated
for cause, the agency may be required to report such information to the
appropriate state licensing board. Id.¶5 For purposes of workload management, the agency typically assigns
patients to panels. HCD (testimony of Associate Chief of Staff). Each panel is
assigned to a physician, who serves as a point of contact for those patients. Id.When a physician leaves the facility, his patients are assigned to another
physician. Id. Thus, existing panels may be divided among multiple physicians.
Id. Agency physicians assigned a panel of patients are responsible for handling
“view alerts” for those patients. Id. View alerts are electronic notifications and
reports on a wide variety of events, including test and laboratory results and
prescription refill requests. Id. Some view alerts may be urgent and require
immediate action. Id.¶6 The appellant began seeing patients on October 27, 2014. 0182 IAF, Tab 5
at 33; 0371 RAF, Tab 48 at 9. At some point during his first week, the agency
assigned him a panel of 1,195 patients. 0182 IAF, Tab 1 at 8; 0371 RAF, Tab 48
are not paid for any administrative time or for duties that do not involve patient visits or
procedures. Id.4
at 9. On November 4, 2014, the Associate Chief of Staff for Ambulatory Care 3 at
the facility sent him the following email message:
I am working on re-arranging and re-distributing the panel you are
covering. Would you have any interest i[n] continuing to work
[Monday-Friday] for a short period of time, until I can get this done?
If not, let me know what your ideal schedule is. Thx.
0182 IAF, Tab 5 at 23. The appellant alleged that he spoke with the Associate
Chief of Staff by telephone later that day, in which he raised a patient safety issue
regarding the assigned patient panel and he refused to participate in the unsafe
medical practice of treating patients without seeing them. 0182 IAF, Tab 1 at 5.
He claimed that she became angry and threatened to terminate his appointment.
Id. at 5, 10-11, 15, 23; 0371 IAF, Tab 1 at 5, 11, 13-14; 0371 RAF, Tab 24 at 6.
The appellant later sent an email message responding to her earlier email,
indicating that he was unable to work full-time because of personal and family
commitments. 0182 IAF, Tab 5 at 21-22. He offered to work 5 days per week on
a temporary basis, but he enumerated several reasons why he should not be
assigned a full panel of patients at that time. Id.¶7 Specifically, the appellant explained that he did not want to receive a panel
of patients because, given the temporary nature of his assignment, such patients
would not have continuity of care. Id. at 21. He expressed concern that he would
be “bombarded” with view alerts for patients he did not know and would not be
able to see in the near future. Id. He also explained that any work he did
involving patients he had not seen would be unremunerated because he was only
paid for actual patient visits. Id. at 21-22. Finally, he indicated that he was
already spending more than the 30 minutes typically allotted for each patient
because he was generally seeing “older and very hi[gh] acuity patients that
have not been seen for a while” and suffered from multiple medical conditions.
3
The Associate Chief of Staff was in acting status when the eve nts in this appeal
transpired. She was later appointed to the position on a permanent basis. HCD
(testimony of Associate Chief of Staff).
5
Id. at 22. The appellant then presented five options that would allow him to
provide services to the agency while maintaining what he believed to be an
acceptable level of patient safety. Id. Only one of these options involved
assigning him a panel of patients, and he proposed that the panel be limited to
400 patients. Id. The appellant concluded, “If none of the above is workable
then I am afraid I am unable to provide what you are expecting,” in which case
she could keep him on staff on an as needed basis for occa sional needs. Id. He
said he could continue to work for the next few days or weeks as needed but
patients should be “unassigned” unless he had seen them. Id.¶8 The Associate Chief of Staff responded: “This is fine. I am working on
reassigning the patients. I[f] you would consider working the rest of this week, I
would appreciate it. I do have a part-time position in Gallup[, New Mexico,] if
you are interested.” Id. at 21. The appellant thanked her and indicated that he
would work the rest of the week, but he reiterated that he was not interested in the
position in Gallup because of the commuting distance. Id. at 20. He asked if she
wanted to retain him as a fee basis provider on an as-needed basis or if he would
be terminated instead. Id. The Associate Chief of Staff responded: “Thank you
for working the rest of the week. Will let you know about future needs.” Id.¶9 The appellant continued to see patients through Friday, November 7, 2014.
Id. at 35. On Sunday, November 9, 2014, he emailed the Associate Chief of Staff
to thank her for expediting his hiring process and to apologize for not being able
to “help out the situation exactly as you expected.” Id. at 26-27. He also stated
that he had met another physician, who only came into the facility about once a
month and saw only new patients. Id. at 27. He asked the Associate Chief of
Staff whether a similar arrangement might be available to him. Id. She
responded the next day: “I will let you know if we need you. Thanks.” Id. at 26.
Later that morning, an administrative officer assigned to the Associate Chief of
Staff notified the facility credentialing office that the appellant’s credentials were
6
being terminated and that he would no longer be working there as a Fee Basis
Physician. Id. at 24.
¶10 On Tuesday, November 25, 2014, the appellant emailed the Associate Chief
of Staff regarding his employment status. Id. at 31. In response, the Associate
Chief of Staff told him she would “check [with] credentials and . . . email you
back with the start/stop dates for accuracy.” Id. at 30. After a brief exchange of
messages, in which the appellant stated that he “was under the false impression of
continued employment and privileges,” the Associate Chief of Staff stated:
You did not want the position offered and thus privileges were
terminated. There was nothing adverse about it. Fee based providers
are not the same as employees of the facility . . . . Privileges were
terminated Nov 7 due to facility needs. . . . You[r] goals and [those]
of the facility did not match.
Id. at 29. On January 9, 2015, the Associate Chief of Staff completed a Provider
Exit Review form for the appellant indicating that he had been cleared from the
facility on November 7, 2014, because he had resigned. Id. at 25. The form
stated that the appellant “[m]et generally accepted standards of clinical practice,
and there was no concern for the safety of patients.” Id.¶11 In January 2015, the appellant filed a complaint with the Office of Special
Counsel (OSC), OSC File No. MA-15-1650, alleging that the agency retaliated
against him for whistleblowing. 0371 IAF, Tab 1 at 8-20. In that complaint, he
alleged that the agency first threatened to terminate, then terminated , his
employment and clinical privileges because he disclosed to the Associate Chief of
Staff his safety and other concerns about having to handle a large number of view
alerts for patients he had not yet seen in person. Id. at 11-18. After OSC
informed him that it was closing its investigation into his complaint, he filed a
Board appeal. Id. at 5, 20-21. The administrative judge determined that the
Board had jurisdiction over the IRA appeal and the appellant would be granted a
hearing on the merits. 0371 IAF, Tab 7 at 2-3. During the processing of that
appeal, however, the appellant learned that his appointment was still effective and
7
had not been terminated in November 2014. 0371 IAF, Tab 16 at 2; 0182 IAF,
Tab 5 at 32. The administrative judge informed him that, if he wanted to raise a
claim of whistleblower reprisal in connection with the agency’s ongoing decision
not to assign him any work under an existing appointment and the apparent
continued suspension of his hospital privileges, he would need to exhaust those
claims with OSC, as he had not done so in his existing OSC complaint.
0371 IAF, Tab 16 at 1-2, Tab 18. With the consent of both parties, the
administrative judge dismissed the appeal without prejudice to refiling.
0371 IAF, Tab 21.
¶12 The appellant filed his second OSC complaint, OSC File No. MA-16-0722,
in November 2015. 0182 IAF, Tab 1 at 8-29. Therein, he alleged that the
Associate Chief of Staff stopped assigning him work after he disclosed to her that
she was forcing him to take clinical actions regarding patients he had not yet seen
and would not be able to see in the future. Id. at 9-12, 15-28. Such a practice, he
alleged, was inherently unsafe and contrary to accepted standards of medical care.
Id. at 10, 16. The appellant filed his second IRA appeal after OSC informed him
that it was closing its investigation. Id. at 1-7, 29-30. The administrative judge
then joined the two pending IRA appeals for adjudication. 0371 RAF, Tab 3;
0182 IAF, Tab 7.
¶13 After a hearing, the administrative judge issued an initial decision denying
corrective action. 0371 RAF, Tab 61, Initial Decision (ID). The administrative
judge found that the appellant made a protected disclosure when he disclosed to
the Acting Associate Chief of Staff his belief that assigning him to a panel of
over 1,000 patients would create a substantial and specific danger to public health
and safety. ID at 11-13. The administrative judge found that, because the
appellant’s appointment itself was not terminated, he failed to prove his reprisal
claim for that particular alleged personnel action. ID at 13 n.6. Applying the
knowledge/timing test to the agency’s decision to not assign him additional work
and to terminate his clinical privileges, however, the administrative judge found
8
that the appellant established that his disclosure was a contributing factor in th ose
other personnel actions. ID at 13-14. The administrative judge nevertheless
found that the agency proved by clear and convincing evidence that it would have
taken the same actions in the absence of his disclosure. ID at 14-20. The
administrative judge thus denied his request for corrective action. ID at 21.
¶14 The appellant has filed a petition for review, primarily arguing that the
administrative judge erred when deciding that the agency showed by clear and
convincing evidence that it would have taken the same actions in the absence of
any disclosure. Petition for Review (PFR) File, Tab 1 at 8-32.
ANALYSIS
The administrative judge properly denied corrective action concerning the
appellant’s alleged termination, denial of additional work, and termination of
clinical privileges.
¶15 On review, neither party has contested the administrative judge’s findings
that the appellant established a prima facie case of reprisal for whistleblowing in
connection with the decision to not assign him additional work and to terminate
his clinical privileges. We find no reason to disturb the administrative judge’s
findings on these issues. ID at 11-14. 4 If an appellant meets his burden of proof
to show retaliation for whistleblowing, the agency may still prevail if it shows by
clear and convincing evidence that it would have taken the same personnel action
or actions in the absence of any protected disclosure. Scoggins v. Department of
the Army, 123 M.S.P.R. 592, ¶ 26 (2016). Clear and convincing evidence is that
measure or degree of proof that produces in the mind of the trier of fact a firm
belief as to the allegations sought to be established. 5 C.F.R. § 1209.4(e). In
determining whether an agency has shown by clear and convincing evidence that
it would have taken the personnel action in the absence of the protected activity,
4
Neither party contests the AJ’s finding that the agency did not terminate the
appellant’s appointment in November 2014, and we find no reason to disturb it. ID
at 13 n.6.
9
the Board will consider all of the relevant factors, including the following factors
(Carr factors): (1) The strength of the agency’s evidence in support of its action;
(2) the existence 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 did not engage in such protected
activity, but who are otherwise similarly situated. Soto v. Department of Veterans
Affairs, 2022 MSPB 6, ¶ 11; see also Carr v. Social Security Administration,
185 F.3d 1318, 1323 (Fed. Cir. 1999). 5 The Board considers all the evidence,
including evidence that detracts from the conclusion that the agency met its
burden. Soto, 2022 MSPB 6, ¶ 11; see also Whitmore v. Department of Labor,
680 F.3d 1353, 1368 (Fed. Cir. 2012).
¶16 The administrative judge considered all three Carr factors, finding the
agency’s evidence particularly compelling for the first two factors. ID at 14-20.
Regarding the first Carr factor, the strength of the evidence in support of the
agency’s actions, the administrative judge concluded that the Associate Chief of
Staff and the appellant may not have had the same understanding regarding the
nature of services the agency needed and the extent to which the appellant was
willing and able to provide those services. ID at 14-15. The administrative judge
based this assessment on the Associate Chief of Staff’s testimony that she
declined to assign the appellant additional work and terminated his clinical
privileges because she learned that he could not meet the agency’s requirement
for a physician who could cover a panel of more than 1,000 patients on a
temporary basis. ID at 15.
5
Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on these types of whistleblower issues. However, pursuant to
the All Circuit Review Act, Pub. L. No. 115-195, 132 Stat. 1510, appellants may file
petitions for judicial review of Board decisions in whistleblower reprisal cases with any
circuit court of appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B).
Therefore, we must consider these issues with the view that the appellant may seek
review of this decision before any appropriate court of appeal.
10
¶17 The administrative judge pointed out that the appellant’s appointment letter
did not specify a particular schedule or require that he serve a minimum number
of hours each week. ID at 14; 0371 RAF, Tab 43 at 4. Additionally, the
administrative judge explained, the appellant was offered the appointment by the
Associate Chief of Staff’s predecessor. ID at 14. The Associate Chief of Staff
and another witness testified that her predecessor had hired the appellant on a
full-time basis, but the appellant testified that he and the predecessor had agreed
to a part-time schedule. ID at 14-15. The predecessor did not testify at the
hearing. ID at 14 n.8. The administrative judge determined that any
unmemorialized discussions about part-time work that may have occurred
between the predecessor and the appellant had not been communicated to the new
Associate Chief of Staff, and she genuinely believed that the appellant had
committed to a full-time schedule. ID at 15. Conversely, the administrative
judge added, the predecessor may have simply believed that the appellant would
cover an entire panel of patients as a part-time physician because he had been
willing to work a “flexible” schedule. ID at 15 n.9. In any event, the
administrative judge concluded, the extent of the appellant’s commitment to
provide coverage and the agency’s expectations were not documented in
advance. Id.¶18 Further, the administrative judge explained, the Associ ate Chief of Staff
seemed reluctant to redistribute the patients from an existing panel because she
believed a full-time physician would be available in the near future to cover the
panel. ID at 15-16. The Associate Chief of Staff testified that the agency had
recently hired a full-time staff physician to be assigned the panel, and the
appellant was to have covered the panel temporarily while the agency resolved a
credentialing delay for the new physician. Id. The administrative judge credited
her testimony that she weighed the added cost of employing the appellant as a
part-time fee basis provider against the benefit that would accrue to the agency
11
from his services and concluded it was not cost-effective to employ him if she
had to break up an existing panel to do so. ID at 16.
¶19 The administrative judge credited the Associate Chief of Staff’s testimony
that she terminated the appellant’s clinical privileges because he would no longer
be seeing patients and thus would not be subject to the monthly peer review
process the agency used to reassess eligibility for privileges. Id. The
administrative judge additionally credited her testimony that she did not assign
the appellant work for the remainder of his appointment because she needed a
full-time, rather than a part-time, physician. Id. Indeed, the administrative judge
explained, the Associate Chief of Staff testified that she would have been willing
to use the appellant on a full-time basis had he become available and, further, it
would not have been unusual for the agency to restore his clinical privileges
under such circumstances. ID at 17 & n.11.
¶20 In considering the Associate Chief of Staff’s testimony, the administrative
judge applied the factors set forth in Hillen v. Department of the Army,
35 M.S.P.R. 453, 458 (1987). ID at 17. In particular, the administrative judge
found that her hearing testimony regarding the reasons she declined to assign the
appellant additional work and terminated his clinical privileges was consistent
with her contemporaneous statements and actions after she learned he was unable
to work full-time and cover a full panel of patients. Id.; see Hillen, 35 M.S.P.R.
at 458 (listing, among other factors for assessing credibility, the contradiction of
the witness’s version of events by other evidence or its consistency with other
evidence). The administrative judge further found that the Associate Chief of
Staff’s willingness to allow the appellant to work the rest of the week after
making his disclosure and her suggestion that he might take a part -time position
in Gallup undermined his contention that she had acted from retaliatory animus.
ID at 17; 0182 IAF, Tab 5 at 21.
¶21 The appellant argues on review that the administrative judge should have
examined the “obvious inconsistencies” between the Associate Chief of Staff’s
12
prior statements and actions and her hearing testimony. PFR File, Tab 1 at 8. For
instance, based on materials he obtained during discovery, the appellant argues
that the agency was not seeking a full-time physician when he was hired and only
needed coverage for 350 additional patients “with the opportuni ty to move up to
about [ ] 1000 patients.” PFR File, Tab 1 at 11-13; 0371 IAF, Tab 5 at 6-7.
However, as the administrative judge explained, the Associate Chief of Staff
testified that she had initially received inaccurate information about the size of
the panel to be covered by a temporary Fee Basis Physician. ID at 14 n.7. The
appellant has not identified any record evidence contradicting that testimony.
¶22 Next, the appellant asserts that the Associate Chief of Staff’s testimony
regarding termination of his privileges was disingenuous. PFR File, Tab 1
at 13-14. He argues that the record evidence shows that she instead had called
into question his attitude towards patients and competence as a physician. Id.
at 11-15; 0371 RAF, Tab 48 at 7. The interrogatory response the appellant cites
in support of his argument states that two physicians had “expressed concern” to
the Associate Chief of Staff about his performance. 0371 RAF, Tab 48 at 7.
However, the same response also states that she had reviewed his charts in
response to the concerns, and she determined that he met the facility performance
standards. Id. Further, in the contemporaneous email exchange upon which the
administrative judge relied, the Associate Chief of Staff assured the appellant she
had acted because “[his] goals and that of the facility did not match.” 0182 IAF,
Tab 5 at 29. She explained that no adverse action had been taken against him and
that she considered his credentials to be “solid.” Id. at 29-30. On the Provider
Exit Review form, she further certified that the appellant “[m]et generally
accepted standards of clinical practice, and there was no concern for the safety of
patients.” Id. at 25. The appellant has not identified any record evidence that the
agency held him in disregard. No unfavorable reports were made to outside
parties. HCD (testimony of credentialing Program Specialist). Finally, the fact
that the Associate Chief of Staff did not cancel the appellant’s appointment and
13
suggested that he apply for the part-time position in Gallup supports the
conclusion that his performance and attitude towards patients were not at issue. 6
0182 IAF, Tab 5 at 21, 32.
¶23 The appellant asserts that the speed with which his clinical privileges were
cancelled is “glaring proof of retaliation” and should have raised the
administrative judge’s suspicions. PFR File, Tab 1 at 28-30 (emphasis omitted).
However, like the administrative judge, we find the Associate Chief of Staff’s
explanation of the agency’s monthly peer review process to be consistent with the
immediate cancellation of privileges. ID at 16. We have considered the
appellant’s alleged contradictory evidence regarding other part -time physicians
with active privileges. PFR File, Tab 1 at 29. As explained below, we agree with
the administrative judge’s finding that they were not similarly situated. ID
at 19-20. Considering the record as a whole, we find that the speed with which
his clinical privileges were terminated under the circumstances is not a strong
indicator of retaliatory motive and does not undermine the strong evidence
supporting the nonretaliatory reasons for the agency’s actions.
¶24 The appellant argued below and on review that the Associate Chief of Staff
falsely stated that he resigned on the Provider Exit Review form, and by doing so,
she sought to cover up the real reason for her actions. ID at 18; PFR File, Tab 1
at 6, 11, 16, 24-27. The administrative judge found that, given the available
choices, it was reasonable for the Associate Chief of Staff to characterize the
appellant’s actions as a resignation. ID at 18. The administrative judge
additionally explained that the characterization was harmless because the agency
6
The appellant views both of these matters with suspicion. He asserts that the offer of
a position in Gallup was the agency’s “first attempt to avoid culpability” because he
had not specified that location on his application. PFR File, Tab 1 at 15. He interprets
the agency’s noncancellation of his appointment as a “calculated move” to hide the real
reason for its actions. Id. at 24. However, we find the agency’s actions more indicative
of a willingness to use the appellant’s services at a later date if he had been available on
the agency’s terms.
14
only shares information from the Provider Exit Review form when it has
identified concerns to report to state licensing boards and the agency had no such
concerns in the appellant’s case. ID at 18 & n.12. The administrative judge thus
found no reason to conclude that the Associate Chief of Staff was trying to hide
the real reason of retaliatory animus for her actions. ID at 18.
¶25 We agree. Although the appellant did not write a formal resignation letter,
PFR File, Tab 1 at 24, his email messages to the Associate Chief of Staff clearly
stated that he was unavailable to work under the conditions the agency was
offering and that he knew his appointment might be terminated for that reason,
0182 IAF, Tab 5 at 20-22. Additionally, the form gives the exit interviewer
limited options for describing the reason for a provider’s departure. Id. at 25. Of
the available options, “resigned” best describes the appellant’s departure from the
facility. In any event, the appellant was not disfavored by the agency’s
characterization of his departure as a resignation. When we consi der all the
pertinent evidence in the record, including that which might fairly distract from
the conclusion, we thus find that the strength of the agency’s evidence in support
of its actions weighs in favor of a finding that it would have taken the same
actions in the absence of any disclosure.
¶26 Regarding the second Carr factor, the existence and strength of any motive
to retaliate on the part of the agency officials involved in the decisions at issue,
the administrative judge acknowledged that the Associ ate Chief of Staff might
have had some motive to retaliate against the appellant, but she found that such
motive would not have been strong. ID at 18-19. The administrative judge
explained that the 1,195-patient panel was consistent with the agency’s saf ety
guidelines, and there was no evidence that the appellant’s disclosure had led to or
would lead to any action being taken against the Associate Chief of Staff or any
other person. ID at 19. Additionally, the administrative judge found the
Associate Chief of Staff’s immediate response to the disclosure —to ask the
appellant if he would be willing to work for the rest of the week and to notify him
15
about an available part-time position—was inconsistent with a strong retaliatory
motive. Id. Indeed, our reading of the email exchange between the appellant and
the Associate Chief of Staff suggests that she may not have even perceived his
concerns about the size of the panel to have been a disclosure. 0182 IAF, Tab 5
at 20-22.
¶27 However, we have found 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, as the criticism reflects on them in their
capacities as managers and employees. Wilson v. Department of Veterans Affairs,
2022 MSPB 7, ¶ 65; Smith v. Department of the Army, 2022 MSPB 4, ¶¶ 28-29.
However, in assessing Carr factor two, the Board and its administrative judges
should avoid an overly restrictive analysis and should fully consider whether a
motive to retaliate can be imputed to the agency officials involved and whether
those officials possessed a “professional retaliatory motive,” because the
whistleblower’s disclosures implicated agency officials and employees in general.
See Whitmore, 680 F.3d at 1370-71. In conducting this analysis, all of the record
evidence relevant to whether there was a motive to retaliate and the extent of that
motive must be considered. 7 See id. at 1368; Soto, 2022 MSPB 6, ¶ 11.
¶28 In the instant case, we find that the administrative judge took too narrow an
approach in her analysis of Carr factor two and placed too much emphasis on the
fact that the appellant’s immediate managers did not suffer any consequences as a
result of his disclosures. However, there is no evidence in this case that the
appellant’s disclosures attracted the attention of high-level agency managers. In
his petition for review, the appellant asserts that the lack of any justification for
7
In Robinson v. Department of Veterans Affairs, 923 F.3d 1004, 1019 (Fed. Cir. 2019),
for example, the court noted that the administrative judge failed to discuss whether the
deciding official had a “professional motive to retaliate,” but ultimately decided that
Carr factor two slightly favored the agency based on its conclusion that the
administrative judge’s crediting of the deciding official’s testimony that he lacked a
motive to retaliate was “not unreasonable.” Robinson, 923 F.3d at 1019-20.
16
the personnel action at issue and the speed with which the agency imposed it
following his disclosure proves retaliatory motive. As discu ssed above, the
administrative judge thoroughly considered and rejected the appellant’s
arguments that the agency’s reasons for taking the personnel action were not
reasonable or credible, and the appellant has not otherwise proffered any reason
why the administrative judge’s findings concerning the second Carr factor were
incorrect. We find, therefore, that the administrative judge properly concluded
that the agency’s motive to retaliate was slight.
¶29 As for the third Carr factor, the agency has not identified any evidence that
it took similar actions against employees who are not whistleblowers. The
appellant reiterates his argument regarding other Fee Basis Physicians who were
treated differently. PFR File, Tab 1 at 19-20, 29-31. However, the administrative
judge found that not all Fee Basis Physicians are similarly situated employees.
ID at 19. Instead, she found that the agency appointed Fee Basis Physicians
under individualized arrangements to meet specific needs. Id. For example, one
of the other fee basis providers was hired to see patients at a Saturday clinic, to
see new patients and walk-ins on other days, and to cover for other physicians as
her schedule allowed. ID at 19-20. She testified that she would not have taken a
full-time position had one been offered and that she negotiated the specific terms
of her appointment before accepting the position. ID at 20. The administrative
judge found that such physicians were not similarly situated to the appellant and
the evidence regarding their conditions of employment would not be persuasive
under the third Carr factor. Id. The appellant has not identified any evidence in
the record that suggests he negotiated the arrangement he believed he had in
advance of accepting an appointment. When there is no relevant comparator
evidence, the third Carr factor is effectively removed from consideration,
although it cannot weigh in favor of the agency. Soto, 2022 MSPB 6 ¶ 18; see
also Rickel v. Department of the Navy, 31 F.4th 1358, 1365-66 (Fed. Cir. 2022).
We find that this factor is neutral.
17
¶30 If the first two Carr factors are only supported by weak evidence, the
failure to present evidence of the third Carr factor may prevent the agency from
carrying its overall burden. Smith, 2022 MSPB 4, ¶ 30; see also Miller v.
Department of Justice, 842 F.3d 1252, 1262-63 (Fed. Cir. 2016) (where an agency
presented little or weak evidence for the first two Carr factors, the lack of Carr
factor three evidence “if anything[ ] tends to cut slightly against the
government”). Here, based on the entire body of evidence, the administrative
judge found that the agency showed by clear and convincing evidence that the
Associate Chief of Staff would have terminated the appellant’s clinical privileges
and not assigned him additional work in the absence of his disclosure. ID at 20.
We have considered the appellant’s arguments and agree that his inability to meet
the agency’s workload and scheduling expectations after he was appointed, rather
than his protected disclosure, led to the termination of his clinical privileges and
the agency’s decision not to assign him additional work. Accordingly, we affirm
the findings in the initial decision.
The administrative judge must make findings on the appellant’s request for
corrective action regarding the alleged threat to terminate his appointment.
¶31 The administrative judge did not make findings on the merits for every
personnel action that she found to be within the Board’s jurisdiction. In his first
whistleblower complaint, OSC File No. MA-15-1650, the appellant alleged that
the agency first threatened to terminate him, then terminated his employment and
clinical privileges after he made his disclosure to the Associate Chief of Staff.
0371 IAF, Tab 1 at 11-18. He references this alleged verbal threat several times
in his petition for review. PFR File, Tab 1 at 5, 15, 25. A threatened personnel
action may be a basis for the Board’s jurisdiction in an IRA appeal. See 5 U.S.C.
§ 2302(b)(8); see, e.g., Mastrullo v. Department of Labor, 123 M.S.P.R. 110,
¶¶ 24-27 (2015) (finding that the administrative judge erred in failing to reach the
merits of whether the appellant’s protected disclosure was a contributing factor in
the agency’s decision to threaten to take a personnel action against him ). The
18
administrative judge here found that the appellant made a nonfrivolous allegation
that the agency threatened termination of his employment in response to his
alleged protected disclosure. 0371 IAF, Tab 7 at 2-3. He is thus entitled to a
decision on the merits of that claim. Mastrullo, 123 M.S.P.R. 110, ¶ 26.
ORDER
¶32 For the reasons discussed above, we remand these appeals to the Denver
Field Office for further adjudication in accordance with this Remand Order. 8
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
8
As explained above, we affirm the administrative judge’s findings with respect to the
personnel actions at issue in MSPB Docket No. DE-1221-16-0182-W-1. However, in
order to efficiently process these appeals, which are based upon the same intertwined
facts, we remand both appeals. See 5 C.F.R. § 1201.117(a)(5). The administrative
judge should incorporate her earlier findings concerning the alleged termination of the
appellant’s appointment, denial of work, and termination of the appellant’s clinical
privileges into the remand initial decision and provide review rights for both appeals.