UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ARUNA JHA, DOCKET NUMBER
Appellant, CH-0752-15-0472-I-2
v.
DEPARTMENT OF VETERANS DATE: February 28, 2023
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Steven Glink, Esquire, Northbrook, Illinois, for the appellant.
Janet M. Kyte, Hines, Illinois, for the agency.
Timothy B. Morgan, Esquire, Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymod A. Limon, Member
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her removal. On petition for review, the appellant argues that the
administrative judge erred in sustaining the charges, in finding that the appellant
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
did not establish her affirmative defenses, and in finding that removal was a
reasonable penalty. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute
or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly M ODIFIED
regarding the administrative judge’s analysis of the appellant’s whistleblower
defense, we AFFIRM the initial decision.
¶2 The agency removed the appellant from her GS-12 Social Worker position
based on: (1) failure to follow agency policies by sending 27 unencrypted emails
containing patients’ personal identifying information (PII) and medical
information to her personal email account, her attorney, and her daughter
(10 specifications); (2) requesting Home Health Aide services for veterans who
were not eligible for such services (2 specifications); (3) lack of candor
(2 specifications); (4) failure to follow supervisory directions (1 specification);
and (5) failure to complete assigned work (1 specification). MSPB Docket
No. CH-0752-15-0472-I-1, Initial Appeal File (IAF), Tab 6, Subtabs A, D. In
effecting the appellant’s removal, the agency considered her past disciplinary
record consisting of a 3-day suspension in 2013, and a 14-day suspension in 2014,
for performance and conduct issues. Id., Subtab D at 6. On appeal, the appellant
3
challenged the charges and alleged retaliation for EEO activity and for
whistleblowing. IAF, Tabs 1, 9.
¶3 In her initial decision, the administrative judge sustained charges (1), (2),
and (5). MSPB Docket No. CH-0752-15-0472-I-2, Appeal File, Tab 13, Initial
Decision (ID) at 4-17. She found that specification 2 of charge (2) was virtually
identical to charge (4), and she therefore merged them and sustained the merged
charge. ID at 20-24. The administrative judge did not sustain charge (3). ID
at 17-20. The administrative judge found that the appellant failed to establish her
EEO retaliation affirmative defense. ID at 24-28. Regarding the appellant’s
whistleblower reprisal claim, the administrative judge found th at the appellant
established her prima facie case, but that the agency proved by clear and
convincing evidence that it would have removed her despite her protected
disclosure. ID at 28-37. Finally, the administrative judge found that a nexus
existed between the sustained charges and the efficiency of the service, ID at 37-
38, and that removal was a reasonable penalty, ID at 38-42.
¶4 On review, the appellant has challenged virtually all of the administrative
judge’s findings. Petition for Review (PFR) File, Tab 1 at 1-27. We have
considered the appellant’s claims regarding the sustained charges but find that her
claims do not establish error in the administrative judge’s well-reasoned findings.
See Clay v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (finding no
reason to disturb the administrative judge’s findings when she considered the
evidence as a whole, drew appropriate inferences, and made reasoned conclusions
on the issue of credibility); Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06
(1997) (same).
¶5 The appellant disputes the administrative judge’s credibility findings. PFR
File, Tab 1 at 3-4. The Board must defer to an administrative judge’s credibility
determinations when, as here, they are based on observing the demeanor of
witnesses testifying at a hearing; the Board may overturn such determinations
only when it has “sufficiently sound” reasons for doing so. Haebe v. Department
4
of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Here, after describing the
testimony of the relevant witnesses, including the appellant, regarding the
charged misconduct, the administrative judge made reasoned credibility
determinations based on the factors set forth in Hillen v. Department of the Army,
35 M.S.P.R. 453, 458 (1987). ID at 12-13, 16-17, 23. In fact, she made specific
demeanor findings to explain why she credited the testimony of the appellant’s
first- and second-level supervisors over that of the appellant. Id. Although the
appellant disputes the administrative judge’s findings, the app ellant has not
presented sound reasons for the Board to revisit the administrative judge’s
demeanor-based and other credibility findings.
¶6 The appellant also challenges the administrative judge’s finding that she
did not establish her claim of retaliation for EEO activity. She alleges that the
administrative judge failed to give proper weight to her supervisors’ “motive to
fabricate,” that she filed an EEO complaint and a Federal lawsuit against them
over their decisions to impose upon her several successive suspensions, PFR File,
Tab 1 at 4, and that the 14-day suspension and removal followed soon after her
filings. Id. at 18.
¶7 To prove an affirmative defense of retaliation for EEO activity protected
under Title VII, an appellant must show that the prohibited consideration was a
motivating factor in the agency’s action. Pridgen v. Office of Personnel
Management, 2022 MSPB 31, ¶¶ 21-22, 30. However, to obtain full relief under
the statute, including reinstatement, back pay, and damages, an appellant must
show that retaliation was a but-for cause of the agency’s action. Id., ¶ 22. An
appellant may prove a claim of retaliation under Title VII through direct
evidence, circumstantial evidence, or some combination of the two. Id., ¶ 24.
¶8 In finding that the appellant did not establish that retaliation for her EEO
activity was a motivating factor in her removal, the administrative judge found
that the appellant provided no evidence of such retaliation apart from her
testimony that she filed an EEO complaint against her supervisors in May 2014
5
and was disciplined shortly thereafter, and that she also filed a Federal lawsuit
against her supervisors and the agency in November 2014. ID at 27. The
administrative judge considered evidence that the appellant’s performance
problems began in 2013, Hearing Transcript (HT) at 308-15 (testimony of the
appellant’s second-level supervisor), before she filed her EEO complaint. ID
at 26. The administrative judge also considered the deciding official’s testimony
that she did not assume her duties as Acting Medical Director until just after the
agency issued the appellant’s notice of proposed removal, and that, although she
was not sure that she knew of the appellant’s EEO complaint when she rendered
her decision, she did not know about the Federal lawsuit at that time. HT
at 555-56 (testimony of deciding official); ID at 26. The administrative judge
found no evidence that the appellant’s supervisors influenced the deciding official
to remove the appellant based on her prior EEO activity, ID at 27, no evidence
that other employees who did not file EEO complaints or Federal civil actions
were treated differently, and no evidence that the charged misconduct was not the
real reason for the agency’s action, ID at 27-28.
¶9 Contrary to the appellant’s claim on review, the administrative judge
did not fail to consider that the appellant’s supervisors were the subject of her
EEO complaint and Federal lawsuit. To the extent that that factor provided them
with a motive to retaliate against the appellant, the administrative judge found
that all three supervisors testified clearly and consistently that they did not
retaliate against the appellant and that the decision to remove her was based upon
her serious misconduct, which is well documented in the record. ID at 27. In
reaching her finding on the appellant’s claim, the administrative judge considered
the witnesses’ demeanor. ID at 27. As noted earlier, absent sufficiently sound
reasons for doing so, the Board will not overturn credibility determinations based
upon demeanor. Haebe, 288 F.3d at 1301. The appellant has presented no such
6
reasons here. Therefore, she has not shown error in the ad ministrative judge’s
analysis of this affirmative defense. 2
¶10 The appellant also challenges the administrative judge’s finding that she did
not establish her claim of retaliation for whistleblowing. The appellant argues
that the administrative judge erred in finding that her supervisors had only a
“slight” motive to retaliate against her. PFR File, Tab 1 at 4; ID at 36.
¶11 The administrative judge found that the appellant disclosed what she
reasonably believed was a violation of law, rule, or regulation when she told her
senator that: (1) she had documented that a quadriplegic veteran’s wife had
expressed concerns to her that the facility was not responsive to her requests
regarding her husband’s care; (2) sometime later the wife committed suicide in
the patient’s room; and (3) the appellant’s supervisors subsequently directed her
to “redact and revise” her notes on the patient and his wife. ID at 29-30. The
administrative judge further found that, based upon the timing and knowledge
test, the appellant established that her disclosure was a contributing factor to her
removal. ID at 30-31. These findings have not been challenged on review and
we find no basis upon which to disturb them.
¶12 The administrative judge further found that the agency proved by clear and
convincing evidence that it would have removed the appellant even absent h er
protected disclosure. ID at 32-37. In making her finding, the administrative
judge considered the “Carr” factors, specifically: (1) the strength of the agency’s
evidence in support of the personnel action; (2) the existence and strength of a
motive to retaliate on the part of the agency officials who were in volved 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.
2
Because we affirm the administrative judge’s finding that the appellant failed to show
that retaliation for EEO activity was a motivating factor in her removal, we need not
resolve the issue of whether the appellant proved that retaliation was a but-for cause of
the agency’s decisions. See Pridgen, 2022 MSPB 31 ¶¶ 20-22, 30-33.
7
Soto v. Department of Veterans Affairs, 2022 MSPB 6, ¶ 11; see Carr v. Social
Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). 3 In so doing, the
administrative judge acknowledged the requirement that she consider all the
pertinent evidence in examining whether the agency has met its burden . ID
at 32-37; see Soto, 2022 MSPB 6, ¶ 11.
¶13 Addressing Carr factor (3) first, the administrative judge, referencing a
previous Board decision involving a medical professional at the Departm ent of
Veterans Affairs, found that Dr. Parikh, the appellant in that case who was
removed for releasing confidential medical information, was not similarly
situated to the appellant in this case, as the appellant disputed below and on
review. ID at 33; PFR File, Tab 1 at 17. The administrative judge acknowledged
that Dr. Parikh’s removal was reversed by the Board because of retaliation for
whistleblowing. ID at 33; Parikh v. Department of Veterans Affairs,
116 M.S.P.R. 197 (2011). She found that, although one charge in the Parikh case
was similar, the agency in the instant case proved two additional charges of
misconduct against the appellant, and that, because she and Dr. Parikh occupied
different positions at different medical centers such that there were different
proposing and deciding officials, the appellant and Dr. Parikh were not similarly
situated. ID at 33. The Board has held that the requirement that comparator
employees for Carr factor purposes be “similarly situated” does not require
“virtual identity” and “[d]ifferences in kinds and degrees of conduct between
otherwise similarly situated persons within an agency can and should be
3
Historically, the Board has been bound by the precedent of the U.S. Court of Appeals
for the Federal Circuit on this issue. However, as a result of changes initiated by the
Whistleblower Protection Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat.
1465, extended for 3 years in the All Circuit Review Extension Act, Pub. L.
No. 113-170, 128 Stat. 1894, and eventually made permanent in the All Circuit Review
Act, Pub. L. No. 115-195, 132 Stat. 1510 appellants may file petitions for judicial
review of Board decisions in whistleblower reprisal cases with any circuit court of
appeals of competent jurisdiction. See 5 U.S.C. § 7703(b)(1)(B). We are unaware of
other circuit courts that have considered this issue.
8
accounted for.” Chavez v. Department of Veterans Affairs, 120 M.S.P.R. 285,
¶ 34 (2013) (quoting Whitmore v. Department of Labor, 680 F.3d 1353, 1373
(Fed. Cir. 2012)). Notwithstanding, we agree with the administrative judge that
the appellant and Dr. Parikh were not similarly situated for these purposes. ID
at 33; cf. Chavez, 120 M.S.P.R. 285, ¶ 34 (finding that the appellant and the other
Licensed Vocational Nurse were similarly situated in that both were pr obationary
employees with the same supervisor). We also agree with the administrative
judge that, because of the additional charges against the appellant, Dr. Parikh’s
deficiencies were not sufficiently similar to the combination of reasons for the
appellant’s removal to provide persuasive evidence regarding Carr factor (3). ID
at 33.
¶14 As to Carr factor (1), the strength of the agency’s evidence in support of its
action, the administrative judge found the evidence to be very strong. ID
at 33-36. She found that the agency proved four of the five charges it brought,
and that the appellant’s prior two suspensions for similar misconduct had failed to
correct her behavior. ID at 33-34. The administrative judge noted that, because
of the appellant’s misconduct in charge (1), the agency was required to notify
27 individuals of the PII disclosure and offer them credit monitoring. ID at 35.
Other than arguing that no veterans were “harmed” by her admitted disclosure of
their PII, PFR File, Tab 1 at 7, the appellant has not directly challenged the
administrative judge’s analysis of Carr factor (1), and we see no reason to disturb
this analysis.
¶15 Regarding Carr factor (2), the existence and strength of any motive to
retaliate on the part of agency officials involved in the decision, the
administrative judge found that the appellant’s second-level supervisor could
have had a slight motive to retaliate based on the appellant’s continual insistence
on performing her duties as she thought best, and not conforming to agency
policies and procedures, but that the “repeated seriousness” of the appellant’s
misconduct outweighed any slight motivation her second-level supervisor might
9
have had to retaliate against her. ID at 36. The administrative judge found no
motive to retaliate on the part of the deciding official because she had been
Acting Director of the facility for only a short time, there were approximately
4,000 employees at that facility, and the appellant’s disclosure did not involve the
deciding official because she was the director at another facility at that time. ID
at 37.
¶16 On review, the appellant argues that her supervisors had “enormous”
motives to retaliate against her because she named them in her whistleblowing
complaint with the Office of Special Counsel, in her EEO complaint, and in her
Federal lawsuit alleging that they improperly directed her to alter a patient’s
medical record and committed other irregularities. PFR File, Tab 1 at 4. We
agree that the administrative judge erred in not considering this information when
she described the appellant’s supervisors’ moti vation to retaliate as “slight.”
Rather, we believe that the appellant’s filings, particularly to the extent that they
named her second-level supervisor, provided him with a significant motive to
retaliate against her when he proposed her removal. Phillips v. Department of
Transportation, 113 M.S.P.R. 73, ¶ 23 (2010). However, we nonetheless agree
with the administrative judge that, weighing the Carr factors, the agency has met
its burden to show by clear and convincing evidence that it would have removed
the appellant, absent her disclosure. ID at 33-37. Although the proposing official
had a clear motive to retaliate, the deciding official did not. Most significantly,
the agency had a strong basis upon which to remove the appellant based on the
four sustained charges of serious misconduct and her two prior suspensions for
similar misconduct, both of which occurred within a year prior to the misconduct
that led to her removal. IAF, Tab 6, Subtab D; Phillips, 113 M.S.P.R. 73, ¶ 31.
Employees who engage in protected activity are not granted immunity from the
ordinary consequences of misconduct or poor performance. Mt. Healthy City
School District Board of Education v. Doyle, 429 U.S. 274, 285-86 (1977);
Lachance v. White, 174 F.3d 1378, 1381 (Fed. Cir. 1999). Therefore, we
10
conclude that the administrative judge’s error did not prejudice the appellant’s
substantive rights. See Panter v. Department of the Air Force, 22 M.S.P.R. 281,
282 (1984).
¶17 Finally, in addressing the reasonableness of the penalty, the administrative
judge found, and we agree, that the deciding official carefully considered the
factors set forth by the Board in Douglas v. Veterans Administration, 5 M.S.P.R.
280, 305-06 (1981). ID at 41-42; HT at 528-37 (testimony of the deciding
official). We have considered the appellant’s challenges to this finding, PFR
File, Tab 1 at 19-26, but find that they do not establish error.
NOTICE OF APPEAL RIGHTS 4
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
4
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
11
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warra nts that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
12
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court (not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
13
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 5 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
5
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
14
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.