NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3211
GARY DILORENZO,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Gary DiLorenzo, of Boca Raton, Florida, pro se.
Dawn E. Goodman, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Gregory G. Katsas, Acting Assistant Attorney General, Jeanne E.
Davidson, Director, and Reginald T. Blades, Jr., Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3211
GARY DILORENZO,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Petition for review of the Merit Systems Protection Board in AT1221060015-B-1
__________________________
DECIDED: October 10, 2008
__________________________
Before RADER and SCHALL, Circuit Judges, and ALSUP, District Judge. *
PER CURIAM.
DECISION
In this whistle-blower action, petitioner Gary DiLorenzo, formerly employed as a
probationary employee with the Department of Veterans Affairs (“DVA”), appeals from
an order of the Merit Systems Protection Board holding that DVA complied with the
Whistleblower Protection Act when DiLorenzo was discharged. See, DiLorenzo v. Dep’t
of Veterans, No. AT-1221-06-0015-B-1 (M.S.P.B. Mar. 29, 2007)(“Initial Decision”);
*
Honorable William H. Alsup, District Judge, United States District Court for the
Northern District of California, sitting by designation.
DiLorenzo v. Dep’t of Veterans Affairs, No. AT-1221-06-0015-B-1 (M.S.P.B. Feb. 6,
2008) (Decision of the Board denying petition for review of the Initial Decision.). For the
reasons stated below, we affirm.
I. BACKGROUND
On March 2, 2005, DiLorenzo was appointed as a certified respiratory-therapy
technician by DVA for the VA Medical Center in Miami. The appointment was subject to
an initial probationary period of one year. On March 23, DiLorenzo approached his
supervisor, James Vance, with his concern that the staff was not using the proper
methods for dispensing certain medications. This was the protected disclosure.
DiLorenzo then asked for permission to approach the pharmacy students about the
subject. Before the Board, Vance granted the request. Later on that same day, Vance
testified, he met with DiLorenzo to ask him what he found out from the pharmacy
students. According to Vance, DiLorenzo stated that the hospital had been “doing them
all wrong” and that the staff hospital was guilty of “culpable negligence.” DiLorenzo also
purportedly explained to Vance the appropriate method that should have been
employed.
After DiLorenzo left the room, Vance testified that Eli Germane, a respiratory
therapist who had been assigned to work with DiLorenzo that day, approached him and
stated that he (Germane) overheard a pharmacist student say “that they would look into
it” --- not that the procedures in question were improper. Both Vance and Germane
documented the incident with notes on March 30. Vance testified that he felt “lied” to by
DiLorenzo.
2008-3211 2
On two occasions, DiLorenzo was alleged to have acted outside the scope of his
respiratory-therapy duties. First, Dixianne Marchant (Vance’s supervisor) testified that
on March 21, Marlene Acosta, a respiratory therapist, told her that she was with
DiLorenzo at the nurses’ station when she left to get some equipment. When Acosta
returned, DiLorenzo informed her that he was called by housekeeping to a patient’s
room because the patient had pulled out his IV from his arm. DiLorenzo stated that he
proceeded to apply pressure to the arm, which Acosta replied was an appropriate
measure. DiLorenzo then told Acosta that he was also an EMT and knew how to
reconnect the IV. Acosta then advised DiLorenzo that connection of IVs was something
the nurses had to handle and was outside the scope of his duties as a respiratory
therapist. Costa summarized the incident in an email written to Marchant on March 31.
Second, on March 24, DiLorenzo was assigned to work with Christina Calvo,
another therapist. In an email dated April 4 sent to Marchant, Calvo stated that she
observed DiLorenzo checking various connections for the IVs, catheters, and unit
monitors for a patient. Calvo then told DiLorenzo that he should not interfere with the
connections because it was the responsibility of the registered nurses. DiLorenzo,
according to Calvo’s email, ignored her and continued to check the connections until the
patient’s nurse reiterated Calvo’s remarks. Vance testified he was called to intervene
and subsequently reassigned DiLorenzo to another therapist. As a result of the
incident, Marchant testified, she setup a meeting with DiLorenzo and Adrian Balaguer,
an administrative officer, to remind DiLorenzo the appropriate scope of his job duties
and responsibilities.
2008-3211 3
Marchant also testified that several members of her team reported being
“uncomfortable” around DiLorenzo and noted that one shift supervisor, Emilia Diaz-
Bencomo, told her that DiLorenzo was not a “team player.” In an email dated March 30
to Michael Kraus, in human resources, Marchant summarized the complaints:
This morning I have been made aware of several other issues, which have
my staff on edge, understandably so. This morning he came in early and
was making copies of policies, which in itself is nothing, he has told some
RT staff that he works part-time for a malpractice lawyer doing case
reviews and he is reviewing charts here to a degree more then [sic] would
be expected and finally, the staff are under the impression that he is using
his cell phone to record things being said. It seems, and I have seen it
also, when he is in conversation he starts handling his cell phone. When
asked he says he is putting numbers in, which is what he told me. I told
him I had already given him my numbers several times. He put the phone
away at that point. Jim has told me he is using legal terms for things he is
“finding” and has made statements to him that we (RT) are doing things
“against the law.”
My staff is paranoid when he is around, I have already had staff calling
and coming to my office with their feeling regarding this individual.
Needless to say the working environment is not pleasant in RT and is
getting worst [sic] each day.
I realize we have to follow rules and for good reason and in this case more
so, but something has to be done as soon as possible.
Marchant then testified that her Medical Director, the Service Chief, and Krause all
agreed that DiLorenzo “could potentially become a safety hazard.”
Kraus then forwarded the matter to Larry Brinkman, chief of human resources,
who ultimately made the decision to terminate DiLorenzo. The termination letter, dated
May 2, stated the following:
The Chief, Medical Service has recommended that you be terminated
during your trial period based on the following reasons:
During your time with the VA, you have demonstrated behaviors which do
not promote the efficiency of the service. You also have acted outside the
scope of your duties and management instructions.
2008-3211 4
Brinkman testified that the VA Medical Center terminated roughly 25 probationary
employees a year --- many for “very similar” reasons as DiLorenzo. Brinkman also
testified that he was aware of DiLorenzo’s disagreement over how medication was
dispersed and checked with a specialist who advised that the VA Medical Center was
doing nothing wrong. Regardless of the disagreement, however, Brinkman stated that
DiLorenzo would have been terminated based on his “inability to get along with others”
and his “problem following instructions.”
* * *
After exhausting his administrative remedies before the Office of Special Counsel
(“OSC”), DiLorenzo filed an individual right of action (“IRA”) appeal with the Merit
Systems Protection Board alleging that DVA had violated the Whistleblower Protection
Act, 5 U.S.C. 1211. In a decision dated February 10, 2006, the administrative judge
dismissed DiLorenzo’s appeal for lack of jurisdiction. The full board then vacated the
decision and remanded the case for further adjudication of the jurisdictional issues and,
if necessary, adjudication on the merits. After holding two hearings, the administrative
judge determined that jurisdiction was established because DiLorenzo had made non-
frivolous allegations that he made a protected disclosure and that the disclosure was a
contributing factor to DVA’s decision to terminate. The administrative judge also found,
however, that DVA had established by clear and convincing evidence that it would have
terminated DiLorenzo’s employment absent his protected disclosures. DiLorenzo’s
request for corrective action was therefore denied. The decision was rendered final on
February 6, 2008, and the full board denied DiLorenzo’s petition for review with one
2008-3211 5
board member dissenting on the ground that DVA had not carried its burden by clear
and convincing evidence.
II. DISCUSSION
A. Legal Standard.
This court must affirm a Board decision unless the petitioner establishes under 5
U.S.C. 7703(c) that it is: (1) arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without adherence to procedures required by
law, rule, or regulation; or (3) unsupported by substantial evidence. Kewley v. Dep’t of
Health and Human Services, 153 F.3d 1357, 1361 (Fed. Cir. 1998). 1
The Board has jurisdiction over an IRA appeal where the petitioner has
exhausted all administrative remedies and has made non-frivolous allegations that: (1)
he or she engaged in whistleblowing activity by making a protected disclosure under 5
U.S.C. 2302(b)(8) and (2) the disclosure was a contributing factor in the agency’s
decision to take or fail to take a personnel action as defined by 5 U.S.C. 2302(b)(8).
Fields v. DOJ, 452 F.3d 1297, 1302 (Fed. Cir. 2006). Once jurisdiction is established,
the petitioner must show by a preponderance of the evidence that the protected
disclosure was a contributing factor to the personnel action. If the disclosure was a
contributing factor, then 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 the
disclosure. See 5. U.S.C. 1221(e). With respect to evidence expressly relied on by the
administrative judge, we must affirm a finding of independent causation unless the
petitioner establishes that it is unsupported by substantial evidence. See 5 U.S.C.
1
Unless indicated otherwise, internal citations are omitted from all quoted
authorities.
2008-3211 6
7703(c)(3). When determining whether the agency has satisfied its burden the following
three factors will be considered: (1) the strength of the agency’s evidence in support of
its personnel 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 are not whistleblowers but who are
otherwise similarly situated. Carr v. Social Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir.
1999).
Here, the administrative judge determined that DiLorenzo had satisfied his initial
burden to show that the disclosure was a contributing factor in the decision to terminate
his employment. We therefore limit review to the Board’s determination that DVA
satisfied its burden by clear and convincing evidence that it would have taken the same
personnel action in the absence of the disclosure.
B. The AJ’s Decision Was Supported by Ample Evidence.
As an initial matter, DiLorenzo argues that the majority of evidence relied on by
the AJ consisted of inadmissible and non-corroborated hearsay testimony. “It has long
been settled, however, that hearsay evidence may be used in Board proceedings and
may be accepted as preponderant evidence even without corroboration if, to a
reasonable mind, the circumstances are such as to lend it credence. In addition, we
have held that procedural matters such as the admissibility of evidence, including
hearsay, fall within the sound discretion of the Board and its AJs.” Kewley, 153 F.3d at
1364. 2
2
DiLorenzo also failed to raise any hearsay objection before the AJ and has
therefore waived any such objection now. See Akro Corp. v. Luker, 45 F.3d 1541, 1546
(Fed. Cir. 1995).
2008-3211 7
DiLorenzo next contends that he was precluded from presenting evidence to
support his case. This argument is without merit. The transcript for the hearing
demonstrates that DiLorenzo was given an opportunity to present whatever evidence he
desired. After submitting an eight-page declaration, the AJ permitted DiLorenzo to offer
additional evidence:
Administrative Judge: So you want to make an additional statement under
oath in addition to those eight pages or not?
The Witness: Okay, I won’t, no.
Administrative Judge: You can if you want.
DiLorenzo then submitted additional documents he wanted in evidence. In short,
DiLorenzo was not precluded at all from presenting his case.
Evaluating the Carr factors here, we affirm the AJ’s findings. First, the agency’s
decision to terminate DiLorenzo’s employment is supported by substantial evidence.
On two separate occasions, DiLorenzo had to be told not to involve himself with the
connections of IVs, catheters, and unit monitors. The first incident involving Marlene
Acosta, by itself, was not particularly alarming. Three days after the first episode,
however, DiLorenzo once again had to be told that his responsibilities did not include
IVs, catheters, and unit monitors. This time, his assigned respiratory therapist for the
day, Christine Calvo, stated in email that DiLorenzo “disregarded [her] statements” until
a registered nurse stepped in. Although the record is unclear as to whether DiLorenzo
actually connected or disconnected any IV, Calvo believed DiLorenzo was ignoring her
instructions. Vance testified that he was soon called to intervene and assigned
DiLorenzo to another respiratory therapist. The AJ also credited Vance’s testimony that
DiLorenzo had lied to him about the conversation with the pharmacy students regarding
2008-3211 8
whether the medications were being properly administered. Vance’s version of the
incident was evidenced by a note written by Eli Germane who overheard the
conversation with the pharmacy students. Vance subsequently reported the incident to
his supervisor, Marchant. Next, Marchant testified that DiLorenzo had problems
working with the rest of the staff, was not a team player, and was making other
employees generally feel uncomfortable. She then spoke to her Medical Director, the
Service Chief, and Krause who advised her that DiLorenzo’s problems could potentially
be a safety hazard.
Second, there is no evidence indicating any motive to retaliate on the part of the
agency officials involved in the decision to terminate. Significantly, DiLorenzo was
never admonished when he approached Vance to discuss his concerns over
implementing the proper methods for dispensing medications. To the contrary, Vance
encouraged DiLorenzo to approach the pharmacy students to address the subject. In
addition, although Brinkman (the official in charge of making the final decision to
terminate) admitted he was aware of DiLorenzo’s challenges, there is no evidence that
he took them into account when making his decision. Brinkman instead testified that
DiLorenzo was primarily released because he could not get along with his co-workers
and supervisors. 3
3
In arguing that the agency did have a motive to retaliate, DiLorenzo relies
on the deposition of Adrian Balaguer, the administrative officer at VA’s Miami medical
center. That deposition, however, was not presented to the administrative judge. It was
not filed with the Board until DiLorenzo attached it to his petition for full Board review,
i.e., after the administrative judge issued his decision. 5 C.F.R. 1201.58 provides,
“[o]nce the record closes, no additional evidence or argument will be accepted unless
the party submitting it shows that the evidence was not readily available before the
record closed.” Here, the deposition was taken weeks before the hearing in front of the
AJ. DiLorenzo argues that the only reason the deposition was not a part of the record
2008-3211 9
Third, there is substantial evidence demonstrating that the agency treated
DiLorenzo no differently than other employees who did not make protected disclosures.
Brinkman testified that approximately 25 probationary employees were terminated each
year --- many for similar reasons as DiLorenzo. While DiLorenzo argues that
Brinkman’s testimony was lacking and unsubstantiated, there is simply no other
evidence on the record indicating otherwise.
III. CONCLUSION
Based on the Board’s findings, which we hold are supported by substantial
evidence, we sustain the Board’s decision that DVA did not violate the WPA by
terminating DiLorenzo from his position at the VA Medical Center.
before the AJ is because the AJ would not permit him to enter it. DiLorenzo, however,
fails to cite or quote to any specific passages from the transcript where the AJ refused
to allow the Balaguer deposition. Without such reference, we cannot accept
DiLorenzo’s argument. DiLorenzo has therefore not met his burden. Accordingly, the
Balaguer deposition will not be considered.
2008-3211 10