USCA4 Appeal: 19-2004 Doc: 43 Filed: 06/02/2022 Pg: 1 of 6
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-2004
SUSAN WEBER,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
On Petition for Review of an Order of the Merits Systems Protection Board.
(PH−1221−18−0334−W−3)
Argued: May 4, 2022 Decided: June 2, 2022
Before THACKER, HARRIS, and QUATTLEBAUM, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Charles Williamson Day, Jr., DAY LAW PRACTICE, LLC, Rockville,
Maryland, for Petitioner. Nathanael Brown Yale, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Joseph H. Hunt, Assistant
Attorney General, Robert E. Kirschman, Jr., Director, Elizabeth M. Hosford, Assistant
Director, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Dr. Susan Weber (“Appellant”) appeals the Merit Systems Protection Board’s
(“MSPB”) decision in favor of her employer, the Department of Veterans Affairs
(“Appellee”), on her retaliation claim brought pursuant to the Whistleblower Protection
Act. We affirm based on the reasoning of the MSPB in Weber v. Department of Veterans
Affairs, No. PH-1221-18-0334-W-3, 2019 WL 2574953 (June 18, 2019).
I.
On October 30, 2016, Appellee hired Appellant as a clinical psychologist and the
head of a post-traumatic stress disorder program for veterans at the Veterans Affairs
Medical Center (“VAMC”) in Martinsburg, West Virginia. Appellant’s “appointment
[was] subject to the completion of [a] one year trial period.” J.A. 130. * In the months
following Appellant’s hiring, her supervisor, Michelle Cooke (“Cooke”), recorded notes
detailing her discussions with Appellant about Appellant’s role and limits to her job duties.
On June 22, 2017, at a town hall meeting, Appellant “asked the Secretary of Veterans
Affairs David J. Shulkin . . . what his expectations were for employees to be ‘bolder’ and
more proactive in response to his statement that he wanted [employees] to be bolder
because [Appellee] is in ‘critical condition.’” J.A. 36. Appellant then “approached Acting
Deputy Secretary Scott R. Blackburn [(“Blackburn”)] and spoke to him for about ten
minutes about what [Appellant] reasonably believed to be substantial and specific dangers
*
Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.
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to public safety at the VAMC in Martinsburg, WV, abuse of authority, and gross
mismanagement of the facility.” Id.
On June 23, 2017, Cooke met with one of Appellant’s subordinates, Kristy-Ann
Cook (“Cook”), who expressed “many complaints/concerns about how she ha[d] been
treated by [Appellant].” J.A. 479. Six days later, Appellant and Cook were involved in an
incident in the parking lot at the VAMC, wherein Cook alleged Appellant “pulled out in
front of [her] cutting [her] off.” J.A. 170–71. A verbal altercation followed, which resulted
in Cook calling the police. The responding officer asked Cook to complete a witness
statement for the investigative report. The officer closed the case because the incident
“appear[ed] to be an administrative action to be handled by both employee”s [sic] upper
management.” J.A. 142. Appellant and Cook both contacted Cooke about the incident,
and they were both subsequently re-assigned to other positions. Cook was moved to a
“temporary assignment” with another program, J.A. 599, and Appellant was re-assigned to
a non-supervisory position in “Mental Health Services until further notice” while Appellee
investigated allegations of a hostile work environment. J.A. 46.
On July 10, 2017, Appellant met with Blackburn, Chief of Mental Health Services
Dr. Mark Mann (“Mann”), and others to again discuss the concerns she raised at the town
hall meeting. The next day, Appellant also informed Blackburn that she had been removed
from her original position. Later in the month, while Appellee was still conducting its
investigation of Appellant, Appellant emailed Blackburn and described the tension she felt
with her supervisors.
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By August 8, 2017, Appellee’s investigation of the allegations against Appellant
concluded, and on August 17, 2017, Appellee terminated Appellant “due to unacceptable
conduct.” J.A. 134. On September 28, 2017, Appellant filed a complaint with the Office
of Special Counsel (the “OSC”). Appellant alleged that her re-assignment and ultimate
termination were retaliation for the protected disclosures she raised concerning issues at
the VAMC. The OSC “terminated its inquiry into [Appellant’s] allegations” of retaliation
on March 23, 2018. J.A. 20. Appellant then timely filed an individual right of action
appeal with the MSPB. On June 18, 2019, the MSPB held that Appellant made protected
disclosures and “met her prima facie burden of showing that her protected disclosures were
a contributing factor in her reassignment and removal.” J.A. 1336. But the MSPB denied
her request for corrective action after concluding that Appellee “demonstrated by clear and
convincing evidence that it would have reassigned and removed [Appellant] during her
probationary period even absent her protected disclosure.” J.A. 1341. Appellant timely
filed a petition in this court seeking review of the MSPB’s ruling.
II.
We “may only set aside agency actions, findings, or conclusions if they are ‘(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.’” Flynn v. U.S. Sec. & Exch. Comm’n, 877 F.3d
200, 204 (4th Cir. 2017) (quoting 5 U.S.C. § 7703(c)).
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III.
“When a whistleblower claims an agency took an impermissible personnel action,
the Merit Systems Protection Board evaluates the case using a burden-shifting framework.”
Flynn v. U.S. Sec. & Exch. Comm’n, 877 F.3d 200, 204 (4th Cir. 2017). If a petitioner
establishes a prima facie case of retaliation by demonstrating that she made a protected
disclosure and that the protected disclosure was a contributing factor in the agency’s
personnel action, 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.’” Id. (quoting 5 C.F.R. § 1209.7(b)). Appellee does not contest the MSPB’s
determination that Appellant satisfied her burden to establish a prima facie case of
retaliation. Accordingly, the sole issue before us is whether substantial evidence supports
the MSPB’s determination that Appellee proved by clear and convincing evidence that it
would have re-assigned and removed Appellant if she had not made any protected
disclosures. See Miller v. Dep’t of Just., 842 F.3d 1252, 1258 (Fed. Cir. 2016) (noting
there is an “interrelatedness of the burden of proof a party must satisfy to win its case --
here, clear and convincing evidence -- and our standard of appellate review—substantial
evidence in this instance”).
The parties submit that we should follow the MSPB’s lead in using the factors set
forth in Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir. 1999) to
determine whether Appellee has demonstrated it would have otherwise terminated
Appellant, and we agree. Those factors are:
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the strength of the agency’s evidence in support of its personnel action; the
existence and strength of any motive to retaliate on the part of the agency
officials who were involved in the decision; and any evidence that the agency
takes similar actions against employees who are not whistleblowers but who
are otherwise similarly situated.
Carr, 185 F.3d at 1323. Based on those factors, Appellee has met its burden.
First, the record evidence demonstrates workplace hostilities between Appellant and
her subordinate, Cook, and both parties were re-assigned during the course of Appellee’s
investigation. Second, there is no evidence that the relevant decisionmaker for Appellant’s
termination, Mann, had any animus based on Appellant’s protected disclosures at the town
hall meeting or the subsequent meeting with Blackburn. Rather, the evidence supports
Appellee’s position that Mann’s decision to terminate Appellant was based on the staff
conflict. While the final Carr factor is not determinative either way in this case, the balance
of the factors demonstrates that Appellee would have removed Appellant absent the
protected disclosure.
IV.
Having reviewed the record and the applicable law, and having had the benefit of
oral argument, we affirm the judgment based on the reasoning of the MSPB.
AFFIRMED
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