Doyle v. DVA

Case: 19-2149 Document: 64 Page: 1 Filed: 05/14/2021

NOTE: This disposition is nonprecedential.

United States Court of Appeals
for the Federal Circuit
______________________

JOCELYN LISA DOYLE,
Petitioner

v.

DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________

2019-2149
______________________

Petition for review of the Merit Systems Protection
Board in No. PH-1221-18-0012-W-3.
______________________

Decided: May 14, 2021
______________________

DEBRA D'AGOSTINO, The Federal Practice Group,
Washington, DC, for petitioner.

JANA MOSES, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for respondent. Also represented by CLAUDIA BURKE,
JEFFREY B. CLARK, ROBERT EDWARD KIRSCHMAN, JR.
______________________

Before O’MALLEY, REYNA, and HUGHES, Circuit Judges.
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2 DOYLE v. DVA

Opinion for the court filed by Judge REYNA.
Circuit Judge HUGHES dissents.
REYNA, Circuit Judge.
Ms. Jocelyn Doyle appeals a decision from the Merit
Systems Protection Board that affirmed the Department of
Veterans Affairs’s denial of her request for corrective ac-
tion in connection with her whistleblower complaint. The
Board determined that although Ms. Doyle had made whis-
tleblower protected disclosures and that the agency had at
least a slight motive to retaliate against her, the Depart-
ment of Veteran Affairs established that it would have
taken the same action in the absence of those protected dis-
closures. Because the Board erred in that determination,
we reverse.
BACKGROUND
Ms. Doyle joined the Department of Veterans Affairs
(“VA”) on July 26, 2015, as a dental assistant (“DA”). Prior
to November 2016, Ms. Doyle received praise and an award
for her performance and team participation. See, e.g., J.A.
264 (emails to Ms. Doyle stating, “let me mention again
what a wonderful job you are doing,” and “I can’t thank you
enough for your efforts and enthusiasm since you began
with us.”).
In early December 2016, Ms. Doyle met with a Safety
Officer to express her concern that members of the dental
clinic were removing used surgical razor blades and scal-
pels from medical tools with their fingers, which she
claimed created a health and safety risk (“Razor Blades
Disclosure”). J.A. 72. Ms. Doyle later testified that, alt-
hough the department and its leadership were aware of the
issue for six months previously, the DAs were still remov-
ing the blades with their fingers, so she notified the Safety
Officer about the practice. J.A. 274. Members of Ms.
Doyle’s department, including her Administrative Officer,
Ms. Moody, and other DAs, were agitated that Ms. Doyle
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DOYLE v. DVA 3

went “outside her chain of command” to report this safety
concern and that it made the department “look bad.” See,
e.g., J.A. 73, 77–78. Numerous emails were exchanged be-
tween staff and management regarding Ms. Doyle and her
actions alleging that she was “unstable” and creating a
“toxic work environment.” J.A. 79–81, 85–86, 87, 88.
On December 27, 2016, Ms. Doyle filed a complaint
with the U.S. Office of Special Counsel (“OSC”) alleging
whistleblower reprisal. J.A. 93, 115. From that point on,
she kept the OSC informed of developments, including her
subsequent reassignments to other departments. J.A. 90–
148, 105, 122.
In early January 2017, Ms. Doyle reported to Dr.
McCutcheon, one of her directors, concerns involving Dr.
Kevin Patel, a department dental resident. Specifically,
she claimed that he was not wearing sterile gloves during
surgery and exhibited poor patient care, including unnec-
essary removal of bone during an extraction (“Patel Disclo-
sure”). Appellant Br. 10–11; J.A. 157–159. She drafted an
email about her concerns, see J.A. 157–58, but Ms. Doyle
alleges Dr. McCutcheon told her that she did not need to
send it. Appellant Br. 10–11. Once Dr. Patel was informed
of Ms. Doyle’s complaint, he met with Ms. Moody. This led
to a discussion between Dr. McCutcheon and Dr. Miller,
the Dental Service Chief. J.A. 162.
Around the same time, Ms. Doyle expressed to Dr. Mil-
ler dissatisfaction with her performance appraisal.
J.A. 265. Dr. Miller later testified that the two discussed
her self-assessment and that he modified her appraisal rat-
ing from “fully satisfactory” to “excellent,” stating, “I’ll give
[Ms. Doyle] credit where credit is due.” Id.
On February 1, 2017, Ms. Moody sent an email inform-
ing Human Resources that Dr. Patel was writing a com-
plaint about Ms. Doyle which Ms. Moody intended to send
to Ms. Moody’s superiors. J.A. 184–185. Dr. Miller and
Ms. Moody reviewed Dr. Patel’s draft complaint before it
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4 DOYLE v. DVA

was filed. J.A. 220. The next day, Dr. Patel submitted the
complaint to Ms. Moody in which he alleged that Ms. Doyle
neglected her patients while checking her email, had con-
frontations with other employees, put patients at risk of
serious injury, acted aggressively in front of patients, and
frequently documented her experiences in the clinic.
J.A. 170–180, 181.
AIB Investigation
Dr. Patel’s complaint led to an Administrative Investi-
gation Board (“AIB”) investigation. 1 The AIB investigation
was ordered by Timothy Cook, Medical Center Director,
Martinsburg, West Virginia. Three individuals were ap-
pointed to the AIB: Dr. James Regan, Physician, Surgical
Services Chair; Richard Coffinbarger, Quality Manage-
ment; and Jennifer Riggs, Dental Hygienist. The AIB was
also staffed with a professional investigator and an individ-
ual for administrative and logical support. J.A. 170.
The AIB was tasked with investigating allegations con-
cerning whether Ms. Doyle had engaged in: (a) incidents of
patient abuse, mistreatment or neglect; (b) violation of pa-
tient treatment procedures and protocols; (c) bullying, dis-
respectful, insulting, abusive, or obscene language or
conduct; and (d) refusal to carry out supervisors’ or physi-
cians’ orders or willful resistance to the same. J.A. 262.
The AIB was mandated to determine the following
facts or findings: (a) whether there is conclusive evidence
the allegations occurred, (b) the time periods during which
the alleged infractions occurred, and (c) mitigating

1 The VA may utilize an AIB to collect evidence and
determine facts regarding alleged employee misconduct.
U.S. GOV’T ACCOUNTABILITY OFF., GAO-12-483, VA
ADMINISTRATIVE INVESTIGATIONS (2012), at p. 1. The AIB
conducts investigations and its findings can be used to in-
form corrective actions. Id.
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DOYLE v. DVA 5

circumstances that may have affected the employees ac-
tions. J.A. 170.
The AIB held a Preliminary Review Panel meeting on
February 6, 2017. J.A. 266. The Facility Compliance Of-
ficer asked Dr. Miller why there was no progress note for a
patient whom Ms. Doyle had allegedly abused, in direct vi-
olation of a VA rule that requires progress notes to be filed
within twenty-four hours of diagnostic or therapeutic pro-
cedures. Id. Forty-seven minutes after this meeting, Dr.
Patel started, completed, and signed a progress note for the
incident. Id. He later testified to the AIB that both Ms.
Moody and Dr. Miller reviewed the draft progress note
prior to Dr. Patel signing it. J.A. 267.
At the AIB hearing, Dr. Patel testified consistent with
the allegations in his complaint, but on his last day of em-
ployment with the VA, Dr. Patel reversed positions and
stated under oath that he did not believe Ms. Doyle should
lose her license because she did not intentionally harm or
pose a risk to patients. J.A. 220. Further, under oath on
his last day, Dr. Patel said he “felt like a pawn with respect
to writing this complaint” because Ms. Moody “encouraged
him to document everything and [she and Associate Super-
visor Ms. Sowers] want [dental] residents to file the com-
plaints because their residency is only a year and then they
leave.” Id. He stated that Ms. Moody and Ms. Sowers told
another resident to “start documenting things against [two
other DAs] and then [the dental resident] will file an AIB
complaint.” Id. He later testified before the Board that his
initial AIB testimony consistent with his complaint was in
fact truthful. J.A. 222.
Notably, during the AIB investigation, Ms. Doyle was
reassigned once to the mailroom and then to the library.
J.A. 226, 229. When the AIB asked her in June 2017
whether she wanted to return to the Dental Service depart-
ment, she said she did not. J.A. 263.
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6 DOYLE v. DVA

The AIB issued its report on July 27, 2017, finding that
there was “no credible evidence” as to the first three alle-
gations in Dr. Patel’s complaint: (a) patient abuse, mis-
treatment or neglect; (b) violations of patient safety
protocols and polices; and (c) bullying, disrespectful, insult-
ing, abusive, insolent, or obscene language or conduct.
J.A. 275. Specifically as to the Razor Blades Disclosure,
the AIB stated that “it does not appear this was insubordi-
nation,” and that the AIB noted that a new procedure was
implemented “only after Ms. Doyle notified Safety.”
J.A. 274. As to the fourth allegation, the AIB found “mini-
mal evidence that Ms. Doyle may have refused to carry out
supervisor or physician orders.” J.A. 231.
The AIB also determined that the dental department
was not a healthy environment for Ms. Doyle and, as a re-
sult, she was reassigned in September 2017 to the Medical
Service Department. The AIB found that “an unhealthy
environment was allowed to fester in Dental Service with
[Ms. Doyle] being the unfortunate ‘target.’” J.A. 276. The
AIB in turn recommended that another, separate AIB
should be empaneled to investigate dental service manage-
ment and conduct. Specifically, the AIB made findings that
the AIB investigation was retaliatory and manipulative in
order to get rid of Ms. Doyle:
The AIB members believe Ms. Moody may have or-
chestrated this AIB [investigation] in an effort to
‘get rid of’ Ms. Doyle for personal reasons. Cer-
tainly, (altering and editing) another individual’s
AIB complaint is inappropriate to say the least
when Ms. Moody had no first-hand knowledge of
the events, and how Dr. Patel could compromise his
integrity by signing the document and recanting
his statement when under oath is quite telling.
The AIB members believe that Dr. Miller allowed
Ms. Moody to manipulate facts, and corrupt other
individuals’ opinions regarding Ms. Doyle.
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DOYLE v. DVA 7

Id. The AIB also recommended team-building training,
proper leadership and management training, and reconsid-
eration as to Ms. Doyle’s position and job placement. Id.
Merit Systems Protection Board Decision
On October 7, 2017, Ms. Doyle filed a pro se Individual
Right of Action before the Merit Systems Protection Board
(“Board”) requesting corrective action. J.A. 1–42. The
Board refers to this appeal as “Doyle 2,” since Ms. Doyle
was involved in a concurrent appeal dubbed “Doyle 1” that
dealt with her removal from her latest position and also
included a defense of whistleblower retaliation. J.A. 6. Alt-
hough the Board states that “evidence for these [two cases]
– whether presented as retaliatory personnel actions or in-
cidents evidencing retaliatory animus – were largely the
same,” it did not allow Ms. Doyle to recall witnesses from
Doyle 1 in Doyle 2, finding that she “failed to make an ad-
equate showing . . . to justify” doing so. Id. The parties
were permitted, however, to cite to the record of Doyle 1
during Doyle 2. J.A. 14. The Board states that its rulings
from Doyle 1 “are essentially law of [Doyle 2],” but the
Board fails to summarize those rulings. J.A. 7.
The Board decided that some of Ms. Doyle’s disclosures
could be “fairly deemed whistleblower disclosures under
5 U.S.C. § 1201(b)(8), while some cannot.” J.A. 14. Like-
wise, the Board determined that the protected disclosures
were a significant contributing factor in the personnel ac-
tions taken against Ms. Doyle; “[A]ll the challenged person-
nel actions occurred within a sufficiently short time to
trigger the knowledge-timing test,” a test used to deter-
mine if a disclosure was a contributing factor in an agency’s
decision to take an adverse personnel action, J.A. 18.
The Board examined the alleged personnel actions,
J.A. 20–33, and concluded that the “evidence readily estab-
lished [by a clear and convincing standard] that the com-
plained of actions were not personnel actions (for purposes
of 5 U.S.C. § 2302(a)(2)), or the agency took no wrongful
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8 DOYLE v. DVA

action, and/or the agency would have taken the same ac-
tion” absent the disclosure, J.A. 19.
The Board reviewed the record evidence and noted that
dental staff thought Ms. Doyle was “ruining [the dental de-
partment], embarrassing [the dental department], toxic,
and should stay in her chain of command.” J.A. 19. The
Board determined that “there [was] at least a slight motive
to retaliate on the part of the dental managers/supervi-
sors.” J.A. 20. But the Board explained that the “decisive
factor” was the agency’s evidence supporting its decision,
which the Board found “overwhelming[ly] . . . outweighed
any motive to retaliate, and readily established that the
agency would have taken the same action in the absence of
the protected activity[.]” J.A. 20.
As to the AIB investigation, the Board discounted in
total the results of the AIB investigation on grounds that
the AIB investigation was not a qualifying personnel ac-
tion. See J.A. 24 (citing Mastrullo v. Dep’t of Labor, 123
M.S.P.R. 110 (M.S.P.B. 2015)). In addition, the Board re-
jected the findings of the AIB on the basis that the findings
were contradicted by the testimony of Dr. Regan, head of
the AIB, and Ms. Doyle’s supervisors, who were inter-
viewed during the AIB investigation. For example, the
Board credited Ms. Moody’s testimony over the finding of
the AIB that she did not write or amend Dr. Patel’s com-
plaint and that Dr. Patel wrote the complaint himself.
J.A. 25. The Board accepted Dr. Patel’s explanation that
he was “uncertain” why he told the AIB that he felt like a
pawn, that he most likely said that to avoid getting in-
volved, and that he was trying not to compromise Ms.
Doyle’s career. J.A. 25–26. The Board found that the AIB
“may have misread Ms. Moody’s AIB testimony as a per-
sonality conflict,” since she expressed frustration with Ms.
Doyle. J.A. 26. The Board noted that “[Ms. Moody’s] ex-
pressed enthusiasm is not akin to a vendetta.” J.A. 26. The
Board further found, contrary to the AIB’s finding, that the
AIB also appeared to believe there was no vendetta against
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DOYLE v. DVA 9

Ms. Doyle, but rather just a failure by management “to nip
problems in the bud with communication and discipline.”
J.A. 26–27. The Board also rejected the AIB’s findings be-
cause, it alleged, the agency’s failure to form an AIB (as
recommended) to investigate Ms. Doyle’s supervisors
meant that “the agency viewed certain recommendations
with a grain of salt[.]” J.A. 10 n.9. The Board cited no ev-
idence in support of this assertion, nor did it explain why
it accepted testimony from individuals it found to have mo-
tive to retaliate.
The Board also cited testimony from Dr. Regan. Dr.
Regan apparently testified on his own behalf, and not on
behalf of the AIB. Still, the Board accepted his testimony
as discrediting the very findings made by the AIB, on which
he sat as chairman:
Notably, Regan testified: (1) the panel could not
sustain the first three charges; (2) he found Patel
credible; (3) the underlying basis of the AIB was
valid (e.g. not a bogus complaint) and everyone in-
volved had good intentions; (4) there is a difference
between an unstained charge and a bogus one;
(5) he never believed the investigation was retalia-
tory; (6) management was ill-equipped to deal with
a “strong personality” like the appellant; (7) the is-
sue with Patel was his change of heart on whether
the appellant’s action was deliberate; (8) Moody
had a personality conflict with the appellant;
(9) clinic notes are frequently changed after the
fact; (10) Patel was ending his residency and just
wanted to leave; (11) the reference to the appellant
as the “unfortunate target” generally referred to
the unproven charges; (12) the panel was aware
Moody or Miller could have edited the chart note,
and that was simply a concern; (13) there was no
“finding” that Moody manipulated anything from
Patel; and (14) there was no evidence Moody was
engaging in a vendetta.
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10 DOYLE v. DVA

J.A. 24 (emphasis in original). The Board’s decision be-
came final on August 3, 2019, J.A. 33, and Ms. Doyle timely
appealed to this court. We have jurisdiction over this ap-
peal pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
On appeal, Ms. Doyle argues that the Board erred in
its determination that the AIB investigation was not a
qualifying personnel action, and its determination that the
agency proved it would have taken the same action in the
absence of the protected disclosures. Ms. Doyle also chal-
lenges the VA’s assertion that she waived any arguments
that her job reassignments constituted qualifying person-
nel actions.
Our review authority of Board decisions is limited. We
review Board decisions to determine if a decision is “(1) ar-
bitrary, capricious, an abuse of discretion, or otherwise not
in accordance with the law; (2) obtained without proce-
dures required by law, rule, or regulation having been fol-
lowed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). A Board decision is supported by sub-
stantial evidence if the record contains “‘such relevant evi-
dence as a reasonable mind might accept as adequate to
support a conclusion.’” Crepeau v. Dep’t of Labor, 245 F.
App’x 16, 18 (Fed. Cir. 2007) (citation omitted).
As petitioner, Ms. Doyle bears the burden of establish-
ing, by a preponderance of the evidence, a prima facie case
that she made a protected disclosure and that the disclo-
sure was a “contributing factor” in the agency’s decision to
take a personnel action against her. 5 U.S.C. § 1221(e)(1);
Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357,
1363 (Fed. Cir. 1998). If a prima facie case is made, the
burden shifts to the agency to show, by clear and convinc-
ing evidence, “that it would have taken the action even in
the absence of the protected disclosure.” Kewley, 153 F.3d
at 1363.
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DOYLE v. DVA 11

Protected Disclosures
The Board determined that some of Ms. Doyle’s com-
munications could be “fairly deemed whistleblower disclo-
sures under 5 U.S.C. § 1202(b)(8)[.]” J.A. 14; see also J.A.
18 (finding that “at the very minimum” the Razor Blades
Disclosure was a protected disclosure). We agree and af-
firm that portion of the Board’s determination that Ms.
Doyle made protected disclosures.
Contributing Factor
The Board also determined that Ms. Doyle satisfied the
“knowledge/timing” test. J.A. 18. Under this test, a whis-
tleblower is required to demonstrate that a protected dis-
closure was a “contributing factor” to the alleged adverse
personnel action. The whistleblower must, by a preponder-
ance of evidence, demonstrate that (1) “the official taking
the personnel action knew of the disclosure” and (2) “the
personnel action occurred within a period of time such that
a reasonable person could conclude that the disclo-
sure . . . was a contributing factor in the personnel action.”
5 U.S.C. § 1221(e)(1); see also Kewley, 153 F.3d at 1361–63.
There is no dispute that the knowledge-timing test is
satisfied in this case. J.A. 18. It is undisputed that Ms.
Doyle’s supervisors knew of the Razor Blades Disclosure
and the Patel Disclosure (knowledge), and the AIB investi-
gation was initiated a mere two months after her disclosure
(timing). We therefore agree and affirm that portion of the
Board’s decision finding that Ms. Doyle’s protected disclo-
sures were a contributing factor to the challenged person-
nel actions.
Adverse Personnel Action
The VA asserts that although Ms. Doyle made pro-
tected disclosures and proved that the disclosures were a
contributing factor, the personnel actions central in this
case are not qualifying adverse personnel actions under the
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12 DOYLE v. DVA

statute. 2 J.A. 24–27. In addition, the VA argues that Ms.
Doyle has waived any argument that her reassignments
constitute adverse actions. We first address the waiver is-
sue.
Waiver
It is undisputed that Ms. Doyle was reassigned job re-
sponsibilities and duties several times. In fact, the record
evidence establishes that Ms. Doyle was reassigned three
times. The VA asserts, however, that Ms. Doyle has waived
any argument that the reassignments qualify as adverse
personnel actions because she “failed to present those al-
leged personnel actions for the [Board’s] consideration.”
Appellee Br. at 13. We disagree. Ms. Doyle raised her re-
assignments in her submissions to the OSC, J.A. 105, 122;
before the Board in her initial appeal forms, J.A 242; and
in her closing argument at the Board hearing, J.A. 1377.
That the Board chose not to list the reassignments as a per-
sonnel action at the prehearing conference and chose not to
address them at the hearing does not render them waived.
Ms. Doyle was acting pro se and states that she had no rea-
son to suspect her claims would not be part of her appeal.
Appellant Reply Br. 5. An issue raised before the Board is
preserved for appeal “unless the appellant has knowingly
abandoned or waived the issue.” Bosley v. Merit Sys. Prot.
Bd., 162 F.3d 665, 668 (Fed. Cir. 1998). We see nothing in
the record that shows that Ms. Doyle knowingly abandoned
or waived the reassignment issue. We therefore conclude
that Ms. Doyle has not waived her reassignment argu-
ments.
Ms. Doyle argues that the Board’s conclusion that the
AIB investigation does not qualify as an adverse personnel
action is contrary to law. This court has held that an in-
vestigation of an employee, without more, is not a

2 5 U.S.C. § 2302(a)(2).
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DOYLE v. DVA 13

qualifying personnel action. See Sistek v. Dep’t of Veterans
Affairs, 955 F.3d 948, 955 (Fed. Cir. 2020). But “a retalia-
tory investigation, either on its own or as part of a broader
set of circumstances, may qualify as a personnel action if it
rises to the level” of a “significant change in duties, respon-
sibilities, or working conditions.” Id.,
5 U.S.C. § 2302(a)(2)(A)(xii).
As noted above, there is no dispute that Ms. Doyle had
several significant changes in job duties and responsibili-
ties as well as working conditions. During the course of the
AIB investigation, Ms. Doyle was reassigned from her job
as a DA to the mailroom, and then to the library. She was
reassigned a third time as a direct result of a recommenda-
tion made by the AIB in its investigation report. J.A. 5,
237. As such, the AIB investigation was the direct cause
for at least one change in Ms. Doyle’s change in duties.
The record evidence establishes that the AIB investi-
gation was retaliatory, either on its own or as part of a
broader set of circumstances. Indeed, the circumstances
surrounding the AIB investigation are unusual for several
reasons. First, the AIB investigation was initiated upon a
complaint submitted by Dr. Patel in which he raises seri-
ous allegations against Ms. Doyle. See J.A. 262 (“This en-
tire Administrative Investigative Board was precipitated
by a complaint from Dr. Kevin Patel[.]”). Second, Dr. Patel
is a subject of Ms. Doyle’s protected disclosures. See J.A.
157–58. Third, Dr. Patel presented conflicting (reversal)
testimony. Fourth, the AIB investigation report asserts
that the investigation was a manipulation by Ms. Doyle’s
supervisors as a means to “get rid” her. J.A. 276. Fifth,
the AIB determined that Ms. Doyle’s supervisors reviewed
Dr. Patel’s complaint before he submitted it. Sixth, the AIB
suggested in its investigation report that a separate AIB
should be empaneled to investigate the actions taken by
Ms. Doyle’s supervisory and managerial staff. Seventh, the
atmosphere and work environment in Ms. Doyle’s dental
unit had been rendered so toxic and adverse against Ms.
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14 DOYLE v. DVA

Doyle that it was not prudent to return her to her former
DA position and therefore it was recommended she be re-
assigned (for a third time). Eighth, the AIB determined
that almost all the allegations brought against Ms. Doyle
were not credible and were not substantiated by evidence. 3
The VA urges this court to disregard the findings of the
AIB on grounds that the Board determined that the AIB
findings were contradicted by Dr. Regan, chair of the AIB.
We refuse the invitation to affirm the Board’s decision to
toss out AIB factual findings on the basis of Dr Regan’s tes-
timony. Dr. Regan testified before the Board—apparently
on his own behalf and not on behalf of the AIB—and gen-
erally discredited each of the AIB’s findings. He testified
that the parties had good intentions, that personality dif-
ferences were at fault, and that manipulation (by Ms.
Doyle’s supervisors) was not proven. J.A. 24.
Dr. Regan’s testimony is little more than unsupported
post hoc rationalizations. On the other hand, the AIB in-
vestigation process is a tool that the agency wields to in-
vestigate and address serious issues of safety, health care,
abuse of patients, and institutional management. In this
case, the VA empaneled the AIB and charged it to investi-
gate serious allegations brought against Ms. Doyle. The
AIB collected evidence and heard from fourteen witnesses.
And, as required by its mandate, the AIB made specific
findings of fact which it set out in its report. J.A. 276. We
find no basis in the record to conclude that the AIB failed

3 See J.A. 276 (finding no credible evidence to sup-
port the allegations of patient abuse, mistreatment or ne-
glect; violations of patient safety protocols and policies; or
bullying, disrespectful, insulting, abusive, insolent, or ob-
scene language or conduct; and finding “minimal evidence”
to support that Ms. Doyle refused to carry out orders).
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DOYLE v. DVA 15

in its mission, or that its specific findings are discredited,
including by Dr. Regan’s testimony.
The VA’s position in this case is strikingly incredible.
The VA argues that we should hold that the Board correctly
discredited the agency’s own investigation based on Dr. Re-
gan’s conclusory, unsupported testimony. For example, the
AIB found that Dr. Miller permitted Ms. Moody to turn the
dental unit against Ms. Doyle; in response, the Board notes
that Dr. Regan testified that the department got along.
The AIB investigation uncovered actions and conduct by
supervisors which it recommended be addressed in a sepa-
rate AIB investigation; in response, Dr. Regan says that
such actions were never proven. But Dr. Regan does not
challenge the AIB’s specific findings that the allegations
brought against Ms. Doyle were not credible and were un-
substantiated with evidence. Further, the VA does not
point to any findings by the Board that the AIB was im-
properly empaneled, acted outside its authority or was oth-
erwise illegal. For these reasons, we reject the VA’s
argument that the AIB report was properly rejected by the
Board.
Based on the foregoing circumstances, we conclude
that the AIB investigation was a retaliatory investigation
closely related to at least one reassignment. Russell v.
Dep’t of Justice, 76 M.S.P.R. 317, 323–24 (M.S.P.B. 1997)
(“The Board will consider evidence regarding the conduct
of an agency investigation when the investigation was so
closely related to the personnel action that it could have
been a pretext for gathering evidence to retaliate against
an employee for whistleblowing activity.”). We therefore
hold that the Board’s legal conclusion that the AIB investi-
gation was not a qualifying personnel action was contrary
to law. Consequently, the burden shifts to the agency to
prove, by clear and convincing evidence, that it would have
taken the same personnel action in the absence of the pro-
tected disclosure. Kewley, 153 F.3d at 1363.
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16 DOYLE v. DVA

Agency’s Burden
We review the question of whether the agency would
have taken the same adverse personnel action absent the
protected whistleblower disclosures in light of three non-
exclusive factors known as the Carr factors: (1) “the
strength of the agency’s evidence in support of its personnel
action”; (2) “the existence and strength of any motive to re-
taliate 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 whis-
tleblowers but who are otherwise similarly situated.” Carr
v. Social Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999).
Evidence must leave the Board with a “firm belief” that the
personnel action would have still taken place if not for the
disclosure. Newby v. E.P.A., 135 F.3d 777 (Fed. Cir. 1998).
The VA argues that the Board’s determination that the
VA’s decision to conduct an AIB investigation (Carr factor
one) is based on evidence that “far outweighed” any motive
to retaliate. J.A. 20. We disagree. The problem here for
the VA is that the reasons it cites for taking the adverse
personnel actions (the AIB investigation and reassign-
ments) were expressly found to be lacking credibility and
not substantiated with evidence. The single allegation that
the AIB found to be partially substantiated, that Ms. Doyle
may have refused to carry out supervisor or physician or-
ders, is not cited by the Board as sufficient to initiate the
investigation or to compel the reassignments. We therefore
conclude that Carr factors one and two favor Ms. Doyle. 4
As to Carr factor three, Ms. Doyle argues that the
Board’s conclusion that the agency would have taken the

4 As noted above, we agree with the Board that the
record reflects motive to retaliate (Carr factor two). We af-
firm the part of the Board determination finding motive
under the second Carr factor.
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DOYLE v. DVA 17

same personnel action against similarly situated employ-
ees absent protected disclosures was erroneous. Id. We
agree.
The Board’s analysis of Carr factor three was to simply
state, “No one appears to have ever conducted themselves
as the appellant did[.]” Id. This is contrary to law. Where
comparator evidence exists, “the agency is required to come
forward with all reasonably pertinent evidence.” Whitmore
v. Dep’t of Labor, 680 F.3d 1353, 1374 (Fed. Cir. 2012).
Here, the record reflects that potential comparator evi-
dence exists. 5 But instead of reviewing this evidence, the
Board simply chose not to conduct a comparator analysis
because it alleged no one ever acted like Ms. Doyle.
The VA asserts that Dr. Patel’s testimony was devoid
of “any evidence that he observed other dental assistants
injuring patients resembling his observation of Ms. Doyle’s
conduct, which prompted his complaint,” and therefore
other DAs are not comparable to Ms. Doyle. Appellee Br.
33–34. This is error. The VA ignores that the AIB

5 The record evidence demonstrates that during the
AIB investigation, Dr. Patel was asked about previous as-
sistants that he did not consider “good assistants.” J.A.
217. He spoke of Theresa Scott, with whom “everyone ha[d]
an issue,” to the point Dr. Miller “wouldn’t work anymore
with her.” Id. In fact, Dr. Patel testified, “they had to kick
her out of his clinic and [she had to] go somewhere else.”
Id. Dr. Patel also discussed Sherri Napier, who was “kind
of the same way” and with whom he “definitely had issues.”
Id. After Ms. Sowers insinuated that she might be let go,
Ms. Napier was given a chance to “turn[] it around.” Id. at
217–18. Lastly, Dr. Patel mentioned Ella Clevenger who
“doesn’t even show up half the time . . . [and] doesn’t really
want to work too much.” Id. at 218. No evidence was pre-
sented that any of these previous assistants underwent an
AIB investigation.
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18 DOYLE v. DVA

investigation concluded there was no credible evidence of
patient abuse. J.A. 4. In addition, Dr. Patel testified that
Ms. Doyle did not abuse or otherwise endanger patients.
“Similarly situated” employees can be those with simi-
lar job status, duties, responsibilities, years of service—but
who were not whistleblowers. See Whitmore, 680 F.3d at
1373 (comparing two individuals that were “both in super-
visory positions within the same branch of the same de-
partment,” “operated within the same chain of command,”
and were similar “from an employment position and re-
sponsibility perspective”). The focus of the inquiry is on
agency actions taken against similarly situated employees
that were not whistleblowers. But here the VA fails to ask
and answer this question. As such, the agency fails to
prove by clear and convincing evidence that it would have
taken the same adverse personnel action against a simi-
larly situated employee absent protected disclosures by
that employee.
Ms. Doyle’s case is comparable to Chambers v. Dep’t of
the Interior, where the agency did not prove by clear and
convincing evidence that it would have taken the same ac-
tion. 116 M.S.P.R. 17, 56–57 (M.S.P.B. 2011). There, the
Board found that a motive to retaliate existed and that the
agency lacked evidence that it took similar actions against
similarly situated non-whistleblowers. Chambers, 116
M.S.P.R. at 56–57 (stating that “we are simply not left with
a ‘firm and definite conviction’” in large part because the
agency “did not show that it took similar actions against
similarly situated non-whistleblowers”).
The VA cites to Whitmore in support of its contention
that it did not need to provide evidence as to Carr factor
three; rather a lack of evidence as to that factor would “ef-
fectively remove [the factor] from the analysis.” Appellee
Br. 33 (citing Whitmore, 680 F.3d at 1374). The VA misap-
prehends Whitmore.
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DOYLE v. DVA 19

In Whitmore, the Board did not conduct a comparator
analysis because it believed the only comparable employee,
Mr. Dubois, was not similarly situated to Mr. Whitmore,
because Mr. Dubois, unlike Mr. Whitmore, was not the in-
stigator or the one who threatened physical violence.
Whitmore, 680 F.3d at 1372. We held that the Board’s
reading of “similarly situated” was too narrow. Id. at 1372–
73. We explained that, where evidence as to Carr factor
three exists, “the agency is required to come forward with
all reasonably pertinent evidence.” Id. at 1374. Failure to
do so “may be at the agency’s peril” because “the absence of
any evidence concerning Carr factor three may well cause
the agency to fail[.]” Id.; see also Russell, 76 M.S.P.R. at
327–328 (weighing the three Carr factors to find that the
agency did not meet its burden where “strong evidence to
support their reports concerning the appellant” was out-
weighed by a motive to retaliate and a lack of comparable
treatment of non-whistleblowers).
In view of the record evidence concerning the three
Carr factors, we hold that the Board’s conclusion that the
strength of the agency’s evidence supporting the personnel
actions outweighs any motive to retaliate is unsupported
by substantial evidence and is otherwise contrary to law.
See J.A. 217–18; supra n.5.
We hold that the Board’s decision is unsupported by
substantial evidence and otherwise contrary to law as to its
determinations that: (i) the AIB investigation did not con-
stitute an adverse personnel action, and (ii) that the VA
would have conducted an AIB investigation of Ms. Doyle
absent the whistleblower disclosures.
CONCLUSION
The court has considered the parties’ remaining argu-
ments and does not find them persuasive. The decision of
the Board is reversed.
REVERSED
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20 DOYLE v. DVA

COSTS
Costs to the petitioner.