NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
06-3161
ADLEAN DENNIS,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
____________________________
DECIDED: September 7, 2006
____________________________
Before MICHEL, Chief Judge, LOURIE, Circuit Judge, and ELLIS,* District Judge.
PER CURIAM.
DECISION
Adlean Dennis (“Dennis”) appeals from the final decision of the Merit Systems
Protection Board (the “Board”) holding that her removal by the Department of Veterans
Affairs (“the VA”) was not a retaliatory personnel action prohibited under the
Whistleblower Protection Act (“WPA”), 5 U.S.C. § 2302(b)(8). Dennis v. Dep’t of
Veterans Affairs, NY-1221-05-0114-W-1 (M.S.P.B. Dec. 14, 2005) (“Final Decision”).
We affirm.
*
Honorable T.S. Ellis, III, District Judge, United States District Court for the
Eastern District of Virginia, sitting by designation.
BACKGROUND
Dennis was assigned to the nursing service at Montrose, New York from
sometime in 2000 to April 2003, but was engaged full time as the president of a local
union of the American Federation of Government Employees. Dennis v. Dep’t of
Veterans Affairs, NY-1221-05-0114-W-1, slip op. at 4 (M.S.P.B. Aug. 1, 2005) (“Initial
Decision”). On June 9, 2002, she was quoted in a local newspaper as stating that a
patient who had been discharged from the Montrose hospital and was subsequently
struck and killed by a train had annotations in his chart stating that he should not be
released and that, in her opinion, releasing the patient “was like signing his death
warrant.” Id. Dennis later alleged that her statement was a disclosure protected by the
WPA. Id., slip op. at 5.
In May 2003, Dennis lost an election to remain as president of the local union
and she then returned to nursing service at the VA as a Staff Nurse II. Id., slip op. at 4.
On May 20, 2003, she submitted a doctor’s note to the VA imposing restrictions on her
ability to perform her nursing duties. Id. The note indicated that she could not perform
repetitive motions or do any pushing or pulling due to problems with her left shoulder.
Id. Subsequently, Dennis submitted additional doctor’s notes continuing to limit her
ability to use her shoulder, including one, dated September 19, 2003, which stated that
Dennis was totally disabled. Id.
In September 2003, Dennis had surgery on her shoulder and returned to work in
December of that year. Id. In the interim, viz., in November 2003, the VA’s local
Reasonable Accommodation Committee met to consider Dennis’s request for a
“reasonable accommodation” of her disability, and concluded that she could not perform
06-3161 -2-
the essential functions of her position with or without accommodation. Id., slip op. at 4-
5. On December 16, 2003, Dennis was reassigned to the VA’s campus at Castle Point,
New York, pending further review of her request for accommodation. Id., slip op. at 5.
However, she refused to accept reassignment to any position other than a nursing
position at Castle Point. Id., slip op. at 11. Dennis was then removed from her position
effective November 19, 2004, on the ground that she was unable to perform all the
essential functions of her position. Id., slip op. at 4-5.
Dennis then alleged to the Office of Special Counsel (“OSC”) that seven
incidents that occurred between May 2003 and November 2004 constituted retaliation
by the agency for her statement to the newspaper in 2002. Specifically, Dennis claimed
that the VA’s notice to her that she was being separated from service was a retaliatory
action. Id., slip op. at 10-14. The OSC failed to act within 120 days, entitling Dennis to
appeal to the Board. 5 U.S.C. § 1214(a)(3). Having exhausted the required
proceedings before the OSC as to the seven allegedly retaliatory actions, Dennis filed a
timely individual right of action appeal to the Board.
On August 1, 2005, the Administrative Judge (“AJ”) denied Dennis’s request for
corrective action, concluding that the VA proved by clear and convincing evidence that it
would have taken the same actions absent Dennis’s protected disclosures. Initial
Decision, slip op. at 14. As an initial matter, the AJ held that Dennis “could not appeal
her separation as an adverse action because she did not meet the definition of an
employee who can appeal an adverse action to the Board.” Id., slip op. at 3 n.*. That
determination is not challenged on appeal. The AJ then held that Dennis had made
non-frivolous allegations of protected disclosures, and that she had made non-frivolous
06-3161 -3-
allegations that her disclosures were a contributing factor in at least some of the
personnel actions at issue. Id., slip op. at 2. The AJ determined, however, that there
was clear and convincing evidence in the record that Dennis’s separation was related to
her physical limitations, and had nothing to do with her protected disclosures. Id., slip
op. at 10-14.
Dennis sought review by the full Board, the Board denied her petition, and the
AJ’s decision accordingly became the final decision of the Board. See 5 C.F.R.
§ 1201.113(b) (2006). Dennis timely appealed to this court, and we have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a decision of the Board is limited. We
must affirm the Board’s decision unless it was “(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) (2000); see Briggs v. Merit Sys. Prot. Bd.,
331 F.3d 1307, 1311 (Fed. Cir. 2003).
On appeal, Dennis argues that the Board did not take into account the fact that
she had suffered the adverse action of removal despite her long “clean” record, and that
the Board failed to consider that her removal occurred after her superiors had motive to
retaliate against her. Dennis also contends that the VA did not “identify with specificity”
the information it considered in determining that she was unable to perform the
essential functions of her job and that the VA did not consider the “medical certificate”
from her orthopedic surgeon stating that she could work full time as a registered nurse.
06-3161 -4-
In addition, Dennis asserts that the Board erred by not considering other types of relief
than removal, and by not considering the “medical certificate” from her orthopedic
surgeon.
The government responds that the Board considered whether retaliation for the
protected disclosures was a contributing factor to Dennis’s removal, and correctly
concluded that it was not. The government asserts that the VA clearly identified the
information it considered in finding that Dennis could not perform her essential duties,
and that she was separated for that reason. The government points out that the note
from the orthopedic surgeon was not relevant to the VA’s decision to remove her
because the note was dated after the date of her separation. Further, the government
argues that Dennis was not entitled to any form of relief because she was not subjected
to a retaliatory personnel action.
We agree with the government that the Board’s decision was supported by
substantial evidence and was in accordance with law. To establish a prima facie case
of retaliation for whistleblowing activity, an employee must show both that she engaged
in whistleblowing activity by making a disclosure protected under 5 U.S.C. § 2302(b)(8)
and that the protected disclosure was a contributing factor in a personnel action. See 5
U.S.C. §§ 1221(e)(1), 2302(b)(8). If a plaintiff establishes a prima facie case of
retaliation for whistleblowing, corrective action must be ordered unless “the agency
demonstrates 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); Carr v.
Social Sec. Admin., 185 F.3d 1318, 1322 (Fed. Cir. 1999).
06-3161 -5-
Here, substantial evidence of record supports the Board’s determination that the
VA proved by clear and convincing evidence that Dennis’s separation was not related to
any protected disclosures and that the agency would have taken that action in the
absence of those disclosures. The physical requirements of Dennis’s position included
the ability to move patients unable to move themselves, pushing heavy carts, dealing
with patients in emergency situations by moving them, restraining them, and performing
CPR, and otherwise providing “hands on” patient care. The record shows, however,
that Dennis could lift no more than ten pounds or engage in pushing/pulling greater than
20 pounds, and that her repetitive motions were to be limited. Further, the record
indicates that her prognosis for recovery of complete function was poor, and that her
physician characterized her limitations as “permanent.” Accordingly, the Board
reasonably concluded that the VA had proven by clear and convincing evidence that
Dennis was separated because of her inability to perform essential duties. Thus, the
agency has shown that substantial evidence supports the AJ’s conclusion that the
agency would have removed her in the absence of any protected disclosures.
We reject Dennis’s argument that the Board erred by not considering other relief.
Because Dennis was not found to have been subjected to a retaliatory personnel action,
she was not entitled to any form of relief. We also reject Dennis’s contention that the
Board and the VA should have considered a “medical certificate” from her orthopedic
surgeon stating that she was able to work full time as a registered nurse. Because that
note was dated May 27, 2005, after the date of her separation on November 19, 2004, it
had no bearing on the motivation of the VA to separate her six months earlier, and the
Board had no reason to consider it.
06-3161 -6-
We have considered Dennis’s remaining arguments and find them unpersuasive.
We therefore affirm the Board’s decision.
06-3161 -7-