NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3043
DIANE KING,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Diane King, of Deatsville, Alabama, pro se.
Robert C. Bigler, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeffrey S. Bucholtz, 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NOTE: This disposition is nonprecedential.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
2008-3043
DIANE KING,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Petition for review of the Merit Systems Protection Board in AT0752070136-I-1.
__________________________
DECIDED: May 6, 2008
__________________________
Before NEWMAN, MAYER and SCHALL, Circuit Judges.
PER CURIAM.
Diane King appeals the final order of the Merit Systems Protection Board
denying her petition for review of the initial decision affirming the Department of
Veterans’ Affairs (“agency”) action in removing her from the position of Medical
Technologist, GS-9, on the following two charges: (1) copying and removing confidential
medical records, and (2) altering a patient’s medical records a month after his death by
eliminating a notation and adding a personal opinion regarding alleged specimen
mishandling. King v. Dept. of Veterans Affairs, No. AT-0752-07-0136-I-1 (M.S.P.B. Oct.
9, 2007). The board concluded that there was no new, previously unavailable, evidence
and that the administrative judge made no error in law or regulation affecting the
outcome. Id.; 5 C.F.R. § 1201.115(d). We affirm.
King was removed from her position as a Medical Technologist at the Central
Alabama Veterans Health Care System in Montgomery, Alabama, on October 18, 2006.
In February, 2005, she heard from her supervisor that a medical lab technologist had
found yeast cells present in a spinal fluid sample that was refrigerated overnight without
nutrient added to it, and that this sample was used on a patient who died a few days
later. She concluded that the sample was mishandled and may have been a factor in
the patient’s death, and reported the incident to the agency’s director, who confirmed
that an inquiry into the matter would follow. Before receiving the results of the agency’s
inquiry, she altered the patient’s microbiology worksheet about a month after the
patient’s death, took copies home, and faxed them to the Joint Commission on Hospital
Operations and to the Office of Special Counsel (“OSC”) as part of a complaint. The
board found that she eliminated an entry on the worksheet dated February 18, “No
growth 7 days” and added the entry “3/17/05 Dr. Vacchani not informed specimen
mishandled.” The agency removed her from service on charges of (1) copying and
removing confidential medical records; (2) failing to follow policy regarding rejection of
unacceptable specimens; (3) failing to follow procedures for reporting problems that
could potentially interfere with patient care; and (4) failing to follow procedures for
making entries to patient records. The board sustained the agency’s charges (1) and
(4), and affirmed the removal action.
On appeal, King asserts that the board erred in affirming the agency action
because the termination was a prohibited personnel practice. She reiterates her status
2008-3043 2
as a whistleblower, argues that the microbiology worksheet is not a medical record, and
that the Whistleblower Protection Act (“WPA”) protects her disclosures to OSC.
The scope of our review in an appeal from a decision of the board is limited.
Generally, we must affirm the decision unless we find it to be “(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). Under the WPA, employees with the
authority to take personnel actions are forbidden to do so as a result of any disclosure
of information by an employee that the employee reasonably believes evidences (1) a
violation of law, rule, or regulation, or (2) 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). The board must order corrective action if an employee
proves that a disclosure under section 2302(b)(8) contributed to an adverse personnel
action, unless the agency demonstrates by clear and convincing evidence that it would
have taken the same personnel action in the absence of the disclosure. See id. §
1221(e)(1), (2).
The board found, and the parties do not dispute, that King made protected
disclosures, that she was removed from service following such disclosures, and that the
disclosures were a contributing factor in the removal action. Before us is whether the
board's decision that the agency met its burden of proving by clear and convincing
evidence that it would have removed her even in the absence of her protected
disclosures is correct, see Marano v. Department of Justice, 2 F.3d 1137, 1141 (Fed.
Cir. 1993), and whether the penalty was within the tolerable limits of reasonableness.
2008-3043 3
After receiving evidence and live testimony that agency policy defines
microbiology worksheets as medical records, the board concluded that the worksheets
at issue are medical records, and that the agency proved the facts of the sustained
charges. The board also concluded that the agency met its burden of proof because it
demonstrated that it would have taken the removal action regardless of the protected
disclosures due to the seriousness of her misconduct—altering, copying, and removing
confidential medical records—compounded by incidents of previous misconduct that
resulted in reprimands and disciplinary action, including making false statements about
VA personnel, disrespectful conduct, and failing to comply with a request from her
immediate supervisor. It also concluded that the agency officials involved were not
motivated to retaliate against King for her protected disclosures.
Substantial evidence supports the board’s conclusion that King violated agency
policy when she (1) took the records to her home, thus removing the agency’s property
from its custody without authorization, and (2) added post-hoc critical documentation to
the medical record a month after the patient’s death occurred. She could have
disclosed her first-hand knowledge regarding the alleged specimen mishandling and
cover-up she perceived to OSC without altering, copying, removing to her home, and
releasing confidential agency-owned medical records to OSC without following agency
procedures for doing so. With respect to the removal penalty, the board balanced the
relevant Douglas factors, including King’s prior disciplinary history, the gravity of her
misconduct, and its relation to the efficiency of the service and determined that the
penalty of removal was within the tolerable limits of reasonableness. Because the
2008-3043 4
board applied the appropriate legal standards, and substantial evidence supports its
conclusions, its decision must stand.
2008-3043 5