Sher v. U.S. Department of Veterans Affairs

United States Court of Appeals
For the First Circuit

No. 06-1537

ALAM SHER,

Plaintiff, Appellant,

v.

U.S. DEPARTMENT OF VETERANS AFFAIRS,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. John C. Woodcock, U.S. District Judge]

Before

Lipez, Circuit Judge,
Stahl, Senior Circuit Judge,
and Howard, Circuit Judge.

Tracie L. Adamson, with whom Sumner H. Lipman, Keith R.
Varner, and Lipman, Katz & McKee, P.A. were on brief, for
appellant.
Halsey B. Frank, Assistant U.S. Attorney, with whom Paula D.
Silsby, U.S. Attorney, was on brief, for appellee.

May 29, 2007
 LIPEZ, Circuit Judge. This case requires us to examine

the implications of the immunity that a government employee

receives under Garrity v. New Jersey, 385 U.S. 493 (1967), when

threatened with an adverse employment action for refusing to answer

questions in an administrative investigation by his employer.

Statements made in response to such a threat, and the fruits of

such statements, may not be used against the employee in subsequent

criminal proceedings. That much is clear. The question we

consider is whether the circumstances present in this case

justified a failure to cooperate charge brought against appellant

Dr. Alam Sher by appellee, the Department of Veterans Affairs

("VA"), for Sher’s refusal to answer questions as part of an

investigation into his conduct by the VA.

Sher was Chief Pharmacist of a hospital operated by the

VA in Gardiner, Maine. In 2001, the VA suspended Sher for forty-

five days and demoted him from his position with a corresponding

reduction in pay grade for obtaining free samples from

pharmaceutical companies for personal use, in violation of 5 C.F.R.

§ 2635, and failing to cooperate with an administrative

investigation, in violation of 38 C.F.R. § 0.735-12(b). After an

initial reversal of the failure to cooperate charge by an

Administrative Law Judge (“ALJ”), the Merit Systems Protection

Board (“MSPB”) issued a final order upholding the VA’s decision.

Sher subsequently filed suit in federal district court challenging

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the MSPB decision to sustain the failure to cooperate charge and

the penalty imposed by the VA. He also brought a claim of

employment discrimination on the basis of religion and national

origin against the VA under Title VII, 42 U.S.C. § 2000e-2.

Additionally, he moved to amend the record to include a VA training

videotape that discusses the practice of obtaining free drug

samples. The district court denied the motion to amend the record,

upheld the MSPB's decision, and granted summary judgment to the VA

on the employment discrimination claim. We affirm the judgment of

the district court.

I.

A. Factual Background

We draw the following facts from the administrative

record and the parties’ affidavits. We note factual disputes where

they exist but find that these disputes do not affect our

disposition of the case.

Sher is a Muslim of Pakistani origin. He worked as Chief

Pharmacist for the Togus Medical Center, located in Gardiner, Maine

and operated by the VA, from 1992 until 2001. He received high

evaluations during his tenure as Chief Pharmacist. It is

uncontested that Togus Director John Sims knew of Sher’s Pakistani

origin, but the parties disagree as to whether Sims and Togus Chief

of Staff Timothy Richardson knew of Sher’s Muslim faith.

-3-
 Federal regulations prohibit federal employees from

accepting items of monetary value from anyone doing business with

the employee’s agency, subject to limited exceptions. See 5 C.F.R.

§§ 2635.201-.203. The VA also promulgates its own agency-specific

regulations, and individual units of the VA develop their own local

policies. In August 1999, Togus instituted a facility-wide policy

prohibiting “sampling,” a practice in which representatives of

pharmaceutical companies give providers free samples of their

medicines to facilitate better understanding of the medicines’

application and efficacy. Although the parties agree that Sher had

notice of this policy, Sher states that he believed that the policy

applied only to the distribution of samples to patients or

veterans. Many medical professionals at Togus shared his belief.

In August 2000, Sher attended a training on standards of

ethical conduct for government employees. At that training, he

received a pamphlet entitled “An Ethics Pamphlet for Executive

Branch Employees,” which explained the federal gift ban with the

statement that “[a]n employee shall not, except as permitted by the

Standards of Ethical Conduct, solicit or accept any gift or other

item of monetary value from any person . . . doing business with .

. . the employee’s agency.” The pamphlet also noted that “you may

not accept a gift from people or organizations who are ‘prohibited

sources’--those who do business with, or seek to do business with

your agency.” Employees could “accept any gift that is not worth

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more than $20,” but could not “ask for [ ] something worth $20 or

less.”

Throughout the proceedings leading to this litigation,

Sher has stipulated that, after experiencing chest pain and

consulting a cardiologist, he requested and received free samples

of Lipitor several times while employed as Chief Pharmacist at

Togus. On or about June 16, 2000, in order to participate in a

Parke-Davis promotional program, Sher signed a Free Goods

Requisition Form for Lipitor. He signed another such form on

August 16, 2000. In December 2000, Sher asked a Pfizer sales

representative for samples of Lipitor, and repeated his request

after a “lunch and learn” program in mid-January of 2001. On about

January 25, Sher asked another Pfizer representative for samples of

Lipitor and signed a “starter activity form” in order to receive

the Lipitor. Two days later, a Pfizer sales representative

provided Sher with thirty-two ten-milligram samples of Lipitor, a

fifty-six day supply. On about January 29, another sales

representative provided Sher with more samples of Lipitor.

On January 29, 2001, a Togus employee informed Chief of

Human Resources James Schillinger and VA counsel Carole Moore that

Sher had accepted drugs from a pharmaceutical representative. That

same day, at the request of Schillinger and Moore, Togus security

officers stopped Sher as he was leaving the medical center. The

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officers searched Sher’s briefcase and office, finding 672 ten-

milligram samples of Lipitor.

The VA initiated an investigation of Sher’s activities

related to sampling. Under 38 C.F.R. § 0.735-12(b), federal

employees must furnish information with respect to employment and

disciplinary matters unless to do so would be self-incriminating.

On February 1, VA Investigator Timothy Bond interviewed Sher, who

admitted receiving free samples of Lipitor from Pfizer sales

representatives. Having retained attorney Sumner Lipman to

represent him, Sher attempted, unsuccessfully, to contact Lipman by

phone during the interview. The parties dispute the events that

took place at this interview. Sher asserts that, although he

agreed to participate in the interview, he did so only because Bond

gave him no choice. For its part, the VA contends that Bond

informed Sher of his rights under Garrity, 385 U.S. 493,1 at the

meeting, and that Sher subsequently consented to the interview.

Bond presented the case against Sher to the United States

Attorney’s Office for the District of Maine for consideration for

criminal prosecution. On March 7, the U.S. Attorney’s Office

verbally declined prosecution.

On June 5, Bond again attempted to interview Sher without

Lipman present. The parties agree that Sher unsuccessfully tried

1
We will discuss Garrity and its progeny in section IV.B,
infra.

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to reach Lipman by phone during the interview, but the record

offers no other information about the events that took place at

this interview.

In a letter dated June 28, 2001, Togus Chief of Staff

Timothy Richardson notified Sher that an administrative interview

had been scheduled for July 10. The letter informed Sher that “the

United States Attorney of the District of Maine has declined

criminal prosecution in the matter before the Inspector General,”

that “the matter is therefore an administrative investigation,”

that he was “entitled to the representative of his choice,” that

federal regulations require employees to “furnish information . .

. in cases respecting employment and disciplinary matters,” and

that “[r]efusal . . . may be ground for disciplinary action.”

By letter dated July 2, Sher asked to reschedule the

interview because he had planned to be on vacation until July 11

and his attorney, Sumner Lipman, was unavailable until July 15.

Acting on behalf of Togus Director John Sims, Schillinger

rescheduled the interview for July 11, thereby effectively refusing

Sher’s request to have his preferred representative present. The

letter rescheduling the interview, dated July 2, reiterated that

the U.S. Attorney’s Office had declined criminal prosecution, that

the issue was now an administrative matter, that Sher was obliged

by regulation to provide information, and that he could be

disciplined if he refused.

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 On July 11, Sher appeared with attorney Keith Varner, a

partner of Lipman, for the interview with Investigator Bond. VA

Counsel Moore also attended the meeting. Varner requested that

they postpone the interview until July 13 to allow Lipman to

attend.2 Moore refused the request. Varner also expressed his

concern that the interview would expose Sher to criminal liability.

In an attempt to address this concern, Moore obtained, by fax, a

letter from the U.S. Attorney’s Office for the District of Maine

declining prosecution. The letter from First Assistant United

States Attorney William H. Browder stated, in its entirety:

On March 7, 2001, this office declined
criminal prosecution of Mr. Sher in favor of
administrative action. The conduct for which
Mr. Sher was being considered for prosecution
was his request and receipt of drug samples
(specifically Lipitor) in August of 2000 and
January and February of 2001.

After reviewing this fax, Varner consulted with Lipman by phone.

Lipman was concerned that the letter still left Sher at risk of

criminal prosecution, and Sher ultimately declined to be

interviewed.

As the result of its investigation, the VA subsequently

sustained administrative charges against Sher for soliciting

Lipitor on five occasions between June 2000 and January 2001 and

for receiving and possessing 672 individual samples of Lipitor on

2
Although Lipman originally planned to be out of town until
July 15, he later offered to cut short his vacation to attend a
July 13 interview.

-8-
January 29, 2001, all in violation of 5 C.F.R. § 2635. The VA also

sustained a charge of failure to cooperate with an administrative

investigation, in violation of 38 U.S.C. § 0.735-12. As punishment

for these violations, Sims imposed a forty-five day suspension and

demoted Sher from his position as Chief Pharmacist, with a

corresponding reduction in pay grade from GS-13 to GS-12.

B. Administrative Proceedings

Sher appealed the VA’s decision to the MSPB and raised

the affirmative defense of discrimination based on national origin

and religion. As part of the MSPB review process, an ALJ initially

heard Sher’s case and sustained the charges relating to Sher’s

sampling of pharmaceuticals, but overruled the failure to cooperate

charges on the ground that the concerns of Sher and his counsel

regarding possible prosecution were legitimate. The ALJ also

rejected Sher’s affirmative defenses of national origin and

religious discrimination. Finally, the ALJ held that the agency’s

penalty was unreasonable given the factors identified in Douglas v.

Veterans Administration, 5 M.S.P.R. 280 (1981).3

3
The Douglas factors include: “(1) the nature and seriousness
of the offense . . . ; (2) the employee's job level and type of
employment, including supervisory or fiduciary role, contacts with
the public, and prominence of the position; (3) the employee's past
disciplinary record;(4) the employee's past work record, including
length of service, performance on the job, ability to get along
with fellow workers, and dependability; (5) the effect of the
offense upon the employee's ability to perform at a satisfactory
level and its effect upon supervisors' confidence in the employee's
ability to perform assigned duties; (6) consistency of the penalty
with those imposed upon other employees for the same or similar

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 The parties cross-appealed the ALJ’s decision. An MSPB

panel sustained the ALJ decision on the sampling charges and Sher’s

defense of discrimination, but overruled the ALJ’s decision on the

failure to cooperate charge and the penalty imposed. The MSPB

panel indicated that the letter from the U.S. Attorney’s office

“was sufficient to provide the appellant with ‘use’ immunity from

prosecution” and found it significant that the letter came directly

from the U.S. Attorney’s Office. The MSPB panel also considered it

significant that Sher retained Lipman in February 2001, that Sher

was represented by Varner in person, and that Lipman was accessible

by phone during the July 11 interview.

C. District Court

On October 19, 2004, Sher filed suit in federal court

challenging the MSPB decision on both the failure to cooperate

offenses; (7) consistency of the penalty with any applicable agency
table of penalties; (8) the notoriety of the offense or its impact
upon the reputation of the agency; (9) the clarity with which the
employee was on notice of any rules that were violated in
committing the offense, or had been warned about the conduct in
question; (10) potential for the employee's rehabilitation; (11)
mitigating circumstances surrounding the offense . . . ; (12) the
adequacy and effectiveness of alternative sanctions to deter such
conduct in the future by the employee or others.” 5 M.S.P.R. at
325-26. After discussing these factors, the ALJ summarized his
reasons for finding the VA's penalty unreasonable: "I find that the
appellant's offenses were not intentional but were technical, that
he never knew that requesting/receiving the Lipitor samples was
wrong, and that his offenses were not serious due to the non-gift-
like qualities of drug samples received from pharmaceutical
representatives." The ALJ also noted that Sher "has no past
disciplinary record and excellent long-term prior performance and
job dedication."

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charge and the reasonableness of the penalty. He also alleged that

the VA discriminated against him based on national origin and

religion in violation of Title VII. Sher subsequently filed a

motion to amend the administrative record to include a training

videotape that discussed sampling.

The district court denied the motion to amend the record

on the ground that Sher had not made the required showing of bad

faith or improper behavior. The court then affirmed the MSPB

decision in all respects, adopting, in large measure, a Recommended

Decision by the magistrate judge. The court found no abuse of

discretion in the VA’s decision to discipline Sher for his refusal

to participate in the interview because Sher received multiple

assurances that he would not be prosecuted and was represented by

Varner in person and Lipman by phone. The court also granted

summary judgment to the VA on the Title VII claim on the ground

that Sher failed to demonstrate that the VA’s stated reasons for

disciplining him were pretext for discrimination. The district

court affirmed the penalty imposed by the VA without explicitly

discussing it.

On appeal, Sher challenges the court’s ruling on the

videotape, the affirmance of the MSPB decision on the failure to

cooperate charge and penalty, and the rejection of his Title VII

claim.

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 II.

Sher claims that the district court erred in refusing to

amend the administrative record to include a VA videotape entitled

“Employee Integrity and Pharmacy Security.” We review this claim

at the outset because our resolution of the issue determines the

content of the administrative record that we review in evaluating

Sher’s other claims.

The videotape came to Sher’s attention in March 2005 when

it was played at a monthly staff meeting of the Togus Pharmacy

Service; it apparently had been used for ethical training as early

as 1994. The video depicts with approval a chief of pharmacy

encouraging a doctor to call a drug manufacturer to obtain free

samples of medications.

In our review of an administrative decision, “the focal

point . . . should be the administrative record already in

existence, not some new record made initially in the reviewing

court.” Camp v. Pitts, 411 U.S. 138, 142 (1973). The reviewing

court “‘may’ (although it is not required to) supplement the record

where there is [] ‘a strong showing of bad faith or improper

behavior’ by agency decision makers.” Olsen v. United States, 414

F.3d 144, 155 (1st Cir. 2005) (quoting Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971), overruled on other

grounds by Califano v. Sanders, 430 U.S. 99 (1977)). Thus, the

question of whether there is bad faith or improper behavior is a

factual question, on which we review the district court's

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determination for clear error, Charles v. Rice, 28 F.3d 1312, 1317

(1st Cir. 1994). If the district court has properly found such

behavior, Olsen's statement that the district court may, but is not

required to, open the record indicates that we should review its

decision for abuse of discretion.

Here, the district court denied Sher’s motion to amend

the record on the ground that he had presented no evidence of bad

faith or improper behavior.4 It held that the videotape was

cumulative of other evidence demonstrating that the practice of

sampling was commonplace at the VA. It also emphasized that the

videotape’s implied approval of sampling cannot supersede the

federal regulatory prohibition on such activity.

On appeal, Sher contends that the court erred in finding

no bad faith in the VA’s failure to turn over the videotape in

response to an Acknowledgment Order from the ALJ seeking “all other

4
After the magistrate judge recommended denial of Sher’s
motion to amend the record, Sher petitioned the MSPB to reopen the
administrative record to allow the videotape. The MSPB declined to
hear the petition, stating that the Board’s regulations do not
provide for requests for reconsideration of its final decision.
Sher then filed a “Motion to Reconsider Motion to Amend the Record
and for Relief,” as well as an objection to the Recommended
Decision of the magistrate judge. He argued that, because the MSPB
declined jurisdiction, the district court assumed exclusive
jurisdiction to amend the record. In its review, the district
court alternately considered Sher’s motion as: (1) a motion for
judicial review of a MSPB denial of a motion for reconsideration;
(2) a motion for judicial review of a MSPB refusal to reopen the
record; (3) a motion for the district court to reopen the record.
The court found that, however the issue is conceived, Sher failed
to demonstrate that the record should be reopened. On appeal, Sher
pursues only the third alternative, requesting that we reverse the
district court’s decision and grant his motion to amend the record.

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documents which are relevant and material to this appeal.” He also

renews his argument that the videotape establishes VA approval of

sampling. The VA counters that there is no evidence that the VA

withheld the videotape in bad faith, the tape is not an

authoritative statement of VA policy, and the tape duplicates other

evidence in the record.

We find no clear error in the district court’s conclusion

that there was no bad faith. Sher offers no further evidence that

the tape was withheld intentionally or for any improper reason.

Indeed, the videotape came to light when Sher’s successor played it

for training purposes, undermining any suggestion that his

superiors sought to conceal the tape.

Moreover, the videotape would have had little probative

value if admitted. Sher already had introduced testimony from his

coworkers to demonstrate the unofficial understanding that sampling

was allowed. While the videotape might have suggested that the VA

— at some time — had endorsed that understanding, the tape could

not, as the district court recognized, preempt the regulation’s ban

on sampling. Thus, the district court did not err in denying

Sher’s motion to amend the record.

III.

Determining the framework applicable to our review of

Sher's challenge to the failure to cooperate charge, including his

affirmative defense of discrimination, is a matter of some

complexity. For the sake of clarity, we will first describe the

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district court's review of the MSPB decision. The Administrative

Procedure Act ("APA") explicitly provides that a claim of

discrimination on the basis of race, color, religion, sex, or

national origin is an affirmative defense to any adverse personnel

action taken by an agency. See 5 U.S.C. §§ 2302(b), 7701(c)(2).

Although a petition to review a final order of the MSPB usually is

filed in the Federal Circuit, see 5 U.S.C. § 7703(b)(1), that

procedure changes when an employee raises a discrimination claim

before the MSPB - even as an affirmative defense. The APA provides

that discrimination claims shall be filed under Title VII, see 5

U.S.C. § 7703(b)(2), and an affirmative defense of discrimination

raised under § 7701(c)(2) therefore is properly appealed to the

district court as a Title VII claim. See 29 C.F.R. § 1614.310(b);

Kelliher v. Veneman, 313 F.3d 1270, 1274 (11th Cir. 2002). In

“mixed” cases where discrimination claims as well as claims not

based on discrimination were presented before the MSPB, the

district court has jurisdiction to review both types of claims.

Kelliher, 313 F.3d at 1274.

The discrimination and non-discrimination claims are

subject to distinct standards of review. For the discrimination

claim, “the facts [are] subject to trial de novo by the reviewing

court.” 5 U.S.C. § 7703(c). The non-discrimination claims,

however, remain subject to the usual standard of review for

administrative decisions, and are set aside if the MSPB decision

was “(1) arbitrary, capricious, an abuse of discretion or otherwise

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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). Thus,

“where the MSPB decides a case combining both discrimination and

non-discrimination claims, the district court takes jurisdiction

over appeals from both determinations, but reviews the non-

discrimination claims on the [administrative] record.” Barnes v.

Small, 840 F.2d 972, 979 (D.C. Cir. 1988); see also Williams v.

Dep't of Army, 715 F.2d 1485, 1491 (Fed. Cir. 1983)(en banc).

Here, the district court reviewed Sher's claims using

this framework and granted summary judgment for the VA on all

claims. Although we now review the district court's decision to

grant summary judgment de novo, we apply that standard in a

differentiated fashion. With respect to the non-discrimination

claims, we review the administrative record directly, applying the

same standard of review to that record that the district court

applied. See Crawford v. Runyon, 37 F.3d 1338, 1340 (8th Cir.

1994). With respect to the discrimination claim, we review the

decision of the district court directly. See id. With this

framework in mind, we turn first to Sher’s challenge to the failure

to cooperate charge.

IV.

As the result of his refusal to answer questions on July

11, 2001, the VA charged Sher with failure to cooperate with its

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investigation into his alleged improper sampling in violation of 38

C.F.R. § 0.735-12(b).5 The VA contends that Sher had no legal

basis for his refusal to cooperate. It notes that Sher was

represented by Varner at the interview and had access to his first

choice counsel, Lipman, by phone. The VA also emphasizes that it

informed Sher and his attorneys orally and in writing that criminal

prosecution had been declined and that the investigation was purely

administrative. Sher argues that he had legitimate reasons for

refusing to answer questions because the letter stated only that

the U.S. Attorney had declined to prosecute as of a certain date,

not that it conferred immunity; the dates in the letter did not

match the dates that he sought Lipitor; and the VA did not

reschedule the interview so that Lipman could be present. The

question before us, therefore, is whether the MSPB was arbitrary

and capricious in upholding the failure to cooperate charge on the

ground that Sher had no legal basis for refusing to answer the

questions posed to him.

5
38 C.F.R. § 0.735-12(b) states: “Employees will furnish
information and testify freely and honestly in cases respecting
employment and disciplinary matters. Refusal to testify,
concealment of material facts, or willfully inaccurate testimony in
connection with an investigation or hearing may be ground for
disciplinary action. An employee, however, will not be required to
give testimony against himself or herself in any matter in which
there is indication that he or she may be or is involved in a
violation of law wherein there is a possibility of self-
incrimination.”

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A. Effect of Successive Decisions

In addition to the arbitrary and capricious review we

ordinarily apply to decisions of the MSPB, we have in this instance

another layer of review to consider due to the differences between

the MSPB decision and the ALJ decision that preceded it.6 Under

the APA and its regulations, the MSPB generally “is free to

substitute its judgment” for that of the ALJ. Connolly v. U.S.

Dep’t of Justice, 766 F.2d 507, 512 (1985). However, the MSPB must

give deference to the ALJ on any issues of credibility, see id.,

and is “not free to overturn an [ALJ’s] demeanor-based credibility

findings merely because it disagrees with those findings,” Haebe

v. Dep’t of Justice, 288 F.3d 1288, 1299 (Fed. Cir. 2002).

Here, the ALJ overruled the agency’s finding that Sher

failed to cooperate with the investigation into his sampling. The

MSPB then reversed the ALJ’s decision. If the ALJ’s decision

rested on credibility determinations, we would need to consider

whether the MSPB gave it due deference.

Such review is unnecessary, however, because any

credibility determinations by the ALJ were not dispositive of the

failure to cooperate charge. The ALJ acknowledged that “[a]lthough

6
The MSPB has the authority to refer cases to an ALJ. See 5
U.S.C. § 7701(b). However, the ALJ’s decision is merely “an
initial decision,” 5 C.F.R. § 1201.111, which becomes final unless
it is reopened or reconsidered on motion of the parties or by
motion of the board itself, see id. § 1201.113. Where a case is
reviewed or reopened, the MSPB may “affirm, reverse, remand,
modify, or vacate the decision of the judge, in whole or in part.”
Id. § 1201.117(b).

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there are slight differences in [the accounts provided by Moore,

Bond, and Varner], essentially what happened is not in dispute.”

Moreover, as we will discuss in more detail below, the failure to

cooperate charge raises the legal question of whether Sher had

adequate notice of his immunity under Garrity, see infra Section

IV.C. The subjective mental states of Sher and his attorneys are

irrelevant to that legal question.7

Thus, we need not consider whether the MSPB gave due

deference to the ALJ's credibility determinations as we apply

arbitrary and capricious review to the MSPB decision on the failure

to cooperate charge. In applying this review, the question is not

how this court would rule de novo, but rather whether the

administrative determination is supported by substantial evidence

in the record as a whole. Hayes v. Dep’t of the Navy, 727 F.2d

1535, 1537 (Fed. Cir. 1984).

B. Immunity Under Garrity

In Garrity v. New Jersey, 385 U.S. 493, 499 (1967), the

Supreme Court considered whether the government "can use the threat

of discharge to secure incriminatory evidence against an employee."

Garrity involved an investigation by the Attorney General of New

7
Thus, we owe no deference to the ALJ’s statements that
“legitimate concerns surfaced, dominating the appellant’s view of
the situation and causing him to refuse to answer Bond’s questions”
and that “Lipman, credibly, had a real concern about” the scope of
the grant of immunity. Although such statements arguably entail
credibility determinations by the ALJ, they have no bearing on our
disposition of the legal question of whether Sher had notice of his
immunity.

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Jersey into alleged irregularities in the handling of cases in

which the appellant police officers were told that if they did not

answer questions, they would be subject to removal from office.

Id. at 494.8 After the police officers answered the questions,

their statements were used in a subsequent prosecution against

them. Id. at 495. After noting that "[t]he option to lose their

means of livelihood or to pay the penalty of self-incrimination is

the antithesis of free choice to speak out or to remain silent,"

id. at 497, the Court held unconstitutional the "use in subsequent

criminal proceedings of statements obtained under threat of removal

from office," id. at 500.

Subsequently, the Court held that Garrity's prohibition

on the use of statements made under threat of adverse employment

action also means that if an employee

refuse[s] to answer questions specifically,
directly, and narrowly relating to the
performance of his official duties, without
being required to waive his immunity with
respect to the use of his answers or the
fruits thereof in a criminal prosecution of
himself, the privilege against self-
incrimination would not [be] a bar to his
dismissal.

Gardner v. Broderick, 392 U.S. 273, 278 (1968)(internal footnote

and citation omitted). Thus, together, Garrity and Gardner stand

8
Although Garrity involved an investigation by a state
attorney general, the constitutional prohibition on compulsory
self-incrimination also applies to statements made in an
administrative investigation. See Kastigar v. United States, 406
U.S. 441, 444-45 (1972).

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for the proposition that a government employee who has been

threatened with an adverse employment action by her employer for

failure to answer questions put to her by her employer receives

immunity from the use of her statements or their fruits in

subsequent criminal proceedings, and, consequently, may be subject

to such an adverse employment action for remaining silent.9

Importantly, the employee is not guaranteed transactional immunity.

Rather, “the United States is prohibited from using the testimony

or its fruits, and . . . this degree of prohibition is enough.”

Uniformed Sanitation Men v. Comm’r of Sanitation, 426 F.2d 619, 624

n.2 (2d Cir. 1970).10

When an employee is confronted with the threat of an

adverse employment action for refusal to answer questions, “the

very act of . . . telling the witness that he would be subject to

removal if he refused to answer was held to have conferred such

9
Some courts have referred to this proposition as the
"Garrity rule." See, e.g., Weston v. Dep't of Hous. & Urban Dev.,
724 F.2d 943, 948 (Fed. Cir. 1983).
10
The Supreme Court has distinguished transactional immunity,
which “accords full immunity from prosecution for the offense to
which the compelled testimony relates,” from use immunity, which
protects the witness from “the use of compelled testimony, as well
as evidence derived directly and indirectly therefrom.” Kastigar,
406 U.S. at 453. In Kastigar, the Court emphasized that “immunity
from use and derivative use is coextensive with the scope of the
privilege against self-incrimination, and therefore is sufficient
to compel testimony over a claim of the privilege.” Id. By
contrast, transactional immunity “affords the witness considerably
broader protection than does the Fifth Amendment privilege.” Id.
Thus, the Constitution mandates use immunity where testimony is
compelled, but transactional immunity is a matter of prosecutorial
discretion. See id. at 459.

-21-
immunity.” Uniformed Sanitation Men, 426 F.2d at 626.11 Under

these circumstances, no specific grant of immunity is necessary:

“It is the very fact that the testimony was compelled which

prevents its use in subsequent proceedings, not any affirmative

tender of immunity.” Gulden v. McCorkle, 680 F.2d 1070, 1075 (5th

Cir. 1982); see also United States v. Veal, 153 F.3d 1233, 1239 n.4

(11th Cir. 1998)("The Fifth Amendment protection afforded by

Garrity to an accused who reasonably believes that he may lose his

job if he does not answer investigation questions is Supreme Court-

created and self-executing; it arises by operation of law; no

authority or statute needs to grant it.").12

Here, the letters that Sher received from the VA on June

28 and July 2 quoted regulations stating that “[e]mployees will

furnish information and testify freely and honestly in cases

respecting employment and disciplinary matters. Refusal to testify

11
Although Garrity itself dealt with a situation in which
employees were threatened with removal, any situation in which the
employee is subject to an adverse employment action is sufficient
to trigger Garrity immunity. See, e.g., Uniformed Sanitation Men,
426 F.2d 619, 621 (applying Garrity in a situation where employees
were told generally that they would be “subject to disciplinary
action” for failure to answer questions).
12
True, we have previously noted that “[a] state may compel
incriminating answers to its questions . . . if the testimony and
its fruits are rendered unavailable for use in subsequent criminal
proceedings, i.e. through a grant of immunity.” United States v.
Stein, 233 F.3d 6, 15 n.4 (1st Cir. 2000)(emphasis added).
However, in light of the considerable amount of persuasive
authority from other circuits on this issue, we think it clear that
Stein should be read to mean that testimony compelled by the threat
of adverse employment action automatically triggers a grant of
immunity under Garrity.

-22-
. . . in connection with an investigation or hearing may be ground

for disciplinary action.” This notification was a threat of

removal sufficient to constitute coercion under Garrity. Under

such conditions, Sher’s statements and their fruits would be

inadmissible in subsequent criminal prosecutions regardless of the

subsequent letter faxed from the U.S. Attorney’s Office stating

that the office had declined prosecution.

We emphasize this point to clarify an apparent

misconception by both the MSPB and Sher. In its decision, the MSPB

stated that “we find that the letter from the U.S. Attorney was

sufficient to provide the appellant with ‘use’ immunity from

prosecution under the Garrity rule.” Similarly, Sher’s brief

refers to the letter’s “failure to confer immunity.” These

statements incorrectly suggest that the letter from the U.S.

Attorney's Office was the source of any immunity. As a matter of

law, the immunity attached automatically when Sher faced the loss

of his job for refusal to testify, and the letter served at most to

notify Sher of the existing immunity.

Sher thus had no basis under the Fifth Amendment for

refusing to answer the VA’s questions. However, in assessing the

propriety of the failure to cooperate charge, we still must

consider whether Sher received adequate notice from his employer of

his immunity under Garrity to justify the failure to cooperate

charge.

-23-
C. Notice of Garrity Immunity

The question of whether an employee has adequate notice

of his immunity under Garrity to justify a failure to cooperate

charge arises because the consequences of Garrity immunity are not

self-evident. As the Seventh Circuit has observed:

Uncounselled persons are much more likely to
know about their "Fifth Amendment" right than
they are to know about an immunity that
qualifies the right. Asked to give answers to
questions put to them in the course of an
investigation of their arguably criminal
conduct, they may instinctively "take the
Fifth" and by doing so unknowingly set
themselves up to be fired without recourse.

Atwell v. Lisle Park Dist., 286 F.3d 987, 990 (7th Cir. 2002).

Thus, to provide adequate notice of immunity under Garrity, a

government employer might have to explain two concepts. First, the

employer might have to explain that the threat of an adverse

employment action for a failure to answer questions means, as a

matter of Fifth Amendment law, that the employee's statements and

their fruits may not be used in subsequent criminal proceedings.

We refer to this concept as the “application of Garrity immunity."

Second, the employer might have to explain that the employee, now

afforded the self-incrimination protection of the Fifth Amendment

by operation of law, may be subject to adverse employment action

for remaining silent. We refer to this concept as the

“consequences of Garrity immunity."

The circuits have taken different approaches to the issue

of whether a government employer is required to provide such notice

-24-
to an employee. The Seventh Circuit has indicated that a

government employer has an affirmative duty to apprise an employee

of both the application and consequences of Garrity immunity:

Our court has ruled in several cases that the
government employer who wants to ask an
employee potentially incriminating questions
must first warn him that because of the
immunity to which the cases entitle him, he
may not refuse to answer the questions on the
ground that the answers may incriminate him.

Atwell, 286 F.3d at 990. Similarly, the Federal Circuit has held

that “[i]nvocation of the Garrity rule for compelling answers to

pertinent questions about the performance of an employee’s duties

is adequately accomplished when that employee is duly advised of

his options to answer under the immunity granted or remain silent

and face dismissal.” Weston, 724 F.2d at 948 (emphasis added).

Other circuits have been less directive. In Gulden, the

Fifth Circuit found that a municipality did not have to make "an

affirmative tender of immunity . . . prior to an employee's

appearance at a polygraph exam." 680 F.2d at 1075. Although the

court referred to a tender of immunity, the context of this phrase

indicates that the court actually meant that the employer need not

advise the employee of the immunity conferred by Garrity.13

However, because the employees did not actually show up for their

13
In discussing whether an "affirmative tender of immunity"
is constitutionally required, the court referred to several cases
in which the Seventh Circuit held that the employer must advise the
employee of the application and consequences of his immunity under
Garrity. See Gulden, 680 F.2d at 1074-75 (collecting cases).

-25-
interview, the court held that "the inquiry had not advanced to a

level of specificity in which the competing concerns of immunity

could be properly addressed," and, consequently, that "no

affirmative duty (if any such duty may ever be found) had devolved

upon the employer to advise [the employees] that immunity was

available." Id. at 1076.

Similarly, in Hester v. City of Milledgeville, the

Eleventh Circuit indicated by omission that it recognized no duty

of the employer to advise the employee of the application and

consequences of Garrity immunity. It stated: "We fail, however,

to see how the city’s failure to offer the plaintiffs use immunity

could make any constitutional difference. . . . Such a guarantee

would serve no useful purpose." 777 F.2d 1492, 1496 (11th Cir.

1985). The court then explained that "any grant of use immunity to

the plaintiffs would have been duplicative." Id. (citing Gulden,

680 F.2d at 1073-76). The court's statement that offering immunity

would serve no purpose and its silence as to any duty of the

employer to provide notice indicate a view that the employer has no

such duty.

This disagreement among the circuits notwithstanding, no

circuit has held that an employee who is represented by counsel is

entitled to notice from his employer of his Garrity immunity. In

Atwell, the Seventh Circuit considered a situation in which an

attorney for a municipality had told an employee under

investigation that her attorney would probably instruct her to

-26-
remain silent. 286 F.3d at 989. After consulting with her

attorney, the employee refused to be interviewed and was terminated

for insubordination. Id. While acknowledging its rule that

employers must explain to employees the nature of their immunity

under Garrity, the court suggested that the justification for such

a duty is most compelling for unrepresented employees. Id. at 990.

The court specifically left open the question of “whether, in light

of its rationale, [the Seventh Circuit's rule that an employer has

a duty to warn an employee of his immunity under Garrity] has any

possible application when the employee has a lawyer” and emphasized

that the employee “was not being asked to meet with the

investigator in the absence of her lawyer.” Id. at 991. However,

the court ultimately concluded that, because the employee did not

actually attend the interview, the municipality had not violated

her rights by failing to warn her about her immunity. Id.

The Federal Circuit also has deemed representation by a

lawyer significant. In Modrowski v. Department of Veterans

Affairs, 252 F.3d 1344, 1347 (Fed. Cir. 2001), the VA had

investigated an employee for violating rules prohibiting the

unauthorized sale of VA-owned property to close family members.

The employee received a letter on VA letterhead stating:

1. The U.S. Attorney has been apprised of the
situation, granted you immunity and has
declined to prosecute you in the matter of the
purchase of two properties by Ronald
Perzanowski. 2. You are hereby notified your
assertion of your Fifth Amendment rights is
unnecessary since you will not be prosecuted.

-27-
 3. You are therefore ordered to respond to my
questions concerning this matter.

Id. at 1347. After the employee refused to answer questions until

he could meet with his attorney, the VA charged him with failure to

cooperate in the investigative proceedings, and ultimately he was

removed from his position. Id. at 1348. The court concluded that

it was arbitrary and capricious to charge an employee for failing

to cooperate with an investigation “[i]n the limited circumstances

of the present case,” noting several “dispositive factors,”

including the ambiguity of the scope of immunity, the existence of

pending criminal proceedings on a different but related matter, and

the agency’s acknowledgment that it would have been reasonable to

allow Modrowski to consult with counsel. Id. at 1352. The court

specifically stated that it did not reach the question of “whether

Modrowski had an absolute right to counsel” and that it did not

“hold that all federal employees who are called to respond to

questions in an agency investigation have the right to delay

proceedings to obtain legal counsel.” Id.14

In sum, the circuits have reached different conclusions

about the notice, if any, that the government employer must give to

14
The dissent states that the decision in Modrowski was
premised on the fact that "the employee did not have full access to
counsel," and further states that "the same condition[] obtained in
Sher's case." The same condition does not apply here. In
Modrowski, the employee had no opportunity to meet with his
attorney prior to questioning, whereas Sher had been represented by
Lipman for over five months before the July 11 interview, Varner
accompanied Sher to the interview, and Varner was able to speak to
Lipman by phone during the interview.

-28-
an unrepresented employee about his Garrity immunity. However, no

court has held that the government employer must give notice of

Garrity immunity to an employee represented by counsel.

D. Sher’s Circumstances

In applying this authority to Sher's circumstances, our

inquiry is limited to determining whether the MSPB acted in an

arbitrary and capricious manner when it concluded that the VA

properly charged Sher with failure to cooperate. In the

circumstances of this case, we do not have to decide whether the VA

as employer had to give Sher notice of the application and

consequences of his Garrity immunity. Regardless of whether there

was any duty, Sher may be fairly charged with such notice under the

circumstances present here.

Although we agree with Sher that the VA’s conduct in

refusing to delay the interview so that Lipman could attend was not

exemplary, we cannot conclude that Sher was effectively without

legal representation. Sher's brief emphasizes that the June 28 and

July 2, 2001 letters from the VA stated that Sher was "entitled to

a representative of [his] choice." Sher had been represented by

Lipman since February 2001 and was accompanied to the interview by

Varner, an attorney who had been practicing since 1979 (albeit not

in criminal law). Varner consulted with Lipman on the phone during

the interview. As the district court noted, it is unclear what

more Lipman could have done if he had been present at the

interview. Without doubt, Sher’s request to delay the interview

-29-
for a few days so that Lipman could attend in person was not

unreasonable; the agency had already waited four months to take

administrative action.15 Nonetheless, with Varner present and

Lipman available by phone, we conclude that Sher had access to

counsel of his choice.16

Moreover, the June 28 and July 2, 2001 letters from the

VA clearly contained a threat of removal sufficient to provide

notice of the application of immunity under Garrity. Subsequently,

a July 25 letter from Lipman to Carol Moore, counsel for the VA -

written after the July 11 interview but well before charges were

filed against Sher on August 31 - indicated that Lipman had a

conversation with Moore in which she referred him to Weston, 724

F.2d 943, and Hanna v. Department of Labor, 18 Fed. Appx. 787 (Fed.

Cir. 2001). As we explained in Section IV.C, supra, Weston held

that an employee was duly advised of her immunity under Garrity

when she and her counsel were read a statement that the U.S.

Attorney's office had declined prosecution, that her failure to

answer questions could subject her to removal, and her statements

and their fruits would not be used criminally. 724 F.2d at 948.

Hanna explained that, "[a]s a consequence of the directive

15
The U.S. Attorney’s Office declined prosecution on March 7,
2001, and the interview did not take place until July 11, 2001.
16
We take no position on whether there is a right to counsel
under these circumstances. However, the involvement of counsel is
highly relevant to our evaluation of whether Sher had notice of the
application and consequences of immunity under Garrity and could be
fairly charged with a failure to cooperate.

-30-
compelling [the employee] to respond to questions at the interview

under threat of removal, [the employee] was automatically entitled

to use immunity for any statements made at the interview" and thus

had no basis for refusing to answer questions. 18 Fed. Appx. at

791.

If Sher had not been represented by counsel, these

communications from the VA may or may not have provided Sher with

adequate notice to justify a failure to cooperate charge. We do

not have to decide that issue here because of the involvement of

counsel. Since Sher received the June 28 letter more than two

weeks before the scheduled interview on July 11, his attorneys had

sufficient time to explain to Sher that the automatic conferral of

Garrity immunity meant that he could answer the VA's questions

without fear that his answers could be used against him in a

criminal prosecution.17 Although Moore apparently had not referred

Lipman to Weston and Hanna by the time of the July 11 interview,

there was ample opportunity after she did so for his attorneys to

advise Sher of consequences of his immunity and schedule another

interview at which he could respond to questions prior to the

filing of charges on August 31.

17
Although a letter from the U.S. Attorney’s Office declining
prosecution was unnecessary to confer Garrity immunity, which
flowed from the threat of removal itself, the VA also attempted to
reassure Sher and his attorneys at the July 11 interview by
obtaining a letter directly from the U.S. Attorney’s Office.

-31-
 Under such circumstances, we hold that Sher may be fairly

charged with adequate notice of his immunity under Garrity.18 Thus,

the MSPB was not arbitrary and capricious in sustaining the failure

to cooperate charge.

V.

We review de novo the district court’s grant of summary

judgment with respect to Sher’s claims of national origin and

religious discrimination. See 42 U.S.C. § 2000e-2; 5 U.S.C. §

7703(c). We will affirm the order if “there is no genuine issue as

18
The dissent attributes to the majority a rule that is
nowhere to be found in the majority decision:
[O]nce the employer requires a represented employee to
answer questions under the threat of discharge, the
employee automatically gets the benefit of use immunity
. . . and also is automatically obliged to answer
questions or face discipline . . . . This is true . . .
even where, as here, the employee declines to answer his
employer's questions because he has an objectively
reasonable fear that his statements will not in fact be
protected by use immunity.
If we had concluded that a represented employee with the benefit of
use immunity was automatically obliged to answer questions or face
discipline, we would not have engaged in the detailed analysis of
"Sher's Circumstances" in Part IV.D. Similarly, if we had
concluded there was such an obligation even where the employee has
an objectively reasonable fear that his statements will not be
protected by use immunity, we would not have emphasized that Sher's
attorneys had sufficient time to explain the application and
consequences of Garrity immunity to him so that Sher could be
fairly charged with notice of that immunity. Rather than adopting
any broad rule, we have analyzed what the dissent terms the
"discipline issue" by focusing on the case-specific facts which
include, importantly, Sher's representation by counsel in his
dealing with the VA. The dissent minimizes the importance of
Sher's representation by counsel, and proposes a broad rule
imposing a duty upon the government employer to warn the employee
about the application and consequences of Garrity immunity, even in
cases where the employee is represented by counsel. There is no
case law supporting such a rule.

-32-
to any material fact and [the VA] is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c).

Sher has presented his discrimination claim within the

burden-shifting framework established in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973).19 The parties agree that Sher has made

out a prima facie case of discrimination under McDonnell Douglas.

As its legitimate, nondiscriminatory reason for taking adverse

employment action, the VA asserts that Sher violated ethical rules

governing employees, specifically: (1) his failure to cooperate

with the investigation, and (2) his stipulations that he engaged in

sampling and was discovered with 672 individual samples of Lipitor.

Consequently, the burden of production shifts back to Sher to

present evidence that these stated reasons are pretext for

discrimination. We emphasize, however, that the burden of

persuasion remains with Sher at all times.

19
Under this analysis, the plaintiff must first establish a
prima facie case of discrimination, which is accomplished when
plaintiff shows that: “(1) he is a member of a protected class; (2)
he was qualified for the job; (3) the employer took an adverse
employment action against him; and (4) the position remained open
or was filled by a person with similar qualifications.” Kosereis
v. Rhode Island, 331 F.3d 207, 212-13 (1st Cir. 2003) (citations
omitted). After the plaintiff has established this prima facie
case, “[t]he burden then must shift to the employer to articulate
some legitimate, nondiscriminatory reason” for the adverse
employment action. McDonnell Douglas, 411 U.S. at 802. If the
defendant meets this requirement, the burden of production shifts
back to the plaintiff, who must offer evidence showing that the
defendant’s proffered reason is pretext for discrimination. Id. at
804. While the McDonnell Douglas analysis thus shifts the burden
of production, the burden of persuasion remains with the plaintiff
at all times. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511
(1993).

-33-
 Importantly, when an employer offers multiple legitimate,

nondiscriminatory reasons for an adverse employment action, a

plaintiff generally must offer evidence to counter each reason. In

Rathbun v. Autozone, Inc., 361 F.3d 62, 79 (1st Cir. 2004), we

upheld summary judgment for the defendant because the plaintiff’s

proffers, “[e]ven if fully credited . . . succeed only in calling

into doubt one of several rationales that [the employer] has

advanced for its decision.”20 Similarly, in Connell v. Bank of

Boston, 924 F.2d 1169, 1177 (1st Cir. 1991), we found plaintiff’s

evidence insufficient when he had rebutted only one of his

employer’s two stated reasons for the adverse employment action.21

Our precedent is consistent with decisions in the other

circuits. The Third Circuit has held that

to avoid summary judgment, the plaintiff's
evidence rebutting the employer's proffered
legitimate reasons must allow a factfinder
reasonably to infer that each of the
employer's proffered non-discriminatory
reasons was either a post hoc fabrication or
otherwise did not actually motivate the
employment action (that is, the proffered
reason is a pretext).

20
Although Rathbun involved claims filed under Rhode Island
law, we analyzed the claims under the McDonnell Douglas burden-
shifting framework. See Rathbun, 361 F.3d at 73.
21
Connell involved an action under the Age Discrimination in
Employment Act (“ADEA”). Although the Supreme Court has not yet
decided whether the same framework applies to Title VII and ADEA
claims, the courts of appeals have treated such claims similarly.
See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141-42
(2000)(collecting cases). We have also employed parallel
approaches to such claims. See, e.g., Fontanez-Nunez v. Janssen
Ortho LLC, 447 F.3d 50, 55 (1st Cir. 2006).

-34-
Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)(internal

citations omitted); see also Bodenheimer v. PPG Indus., 5 F.3d 955,

958 (5th Cir. 1993). Similarly, the Seventh Circuit has held:

[Plaintiff] has successfully demonstrated that
genuine issues of material fact exist
regarding four of the six reasons proffered by
[defendant] for his dismissal. We conclude,
however, that [plaintiff] has ultimately
failed to carry his burden of showing pretext
because the four reasons which he has
successfully called into question are neither
“so intertwined,” nor “so fishy” as to call
the remaining two reasons into doubt.

Wolf v. Buss (America) Inc., 77 F.3d 914 (7th Cir. 1996)(citation

omitted). Thus, Sher must provide evidence that both the failure

to cooperate charge and the sampling charge were pretext for

discrimination.

We find that Sher has not met this burden with respect to

the failure to cooperate charge. In his brief, he acknowledges

that the VA has cited his failure to cooperate as a legitimate,

nondiscriminatory reason for the adverse employment action, yet he

fails to adduce any evidence whatsoever to show that this charge is

pretext for discrimination. Moreover, our finding that Sher has

failed to meet his burden on the failure to cooperate charge does

not hinge on our conclusion that the MSPB was not arbitrary and

capricious in agreeing with the VA that Sher violated agency

regulations by failing to cooperate. Even if we were incorrect in

this conclusion, the failure to cooperate charge may still serve as

a legitimate, nondiscriminatory justification for the adverse

-35-
employment action, so long as Sher offers no evidence showing that

the charge itself was pretext for discrimination. Sher bears the

burden of persuasion on this issue, and he has failed to carry it.

Because Sher’s showing on the failure to cooperate charge

was inadequate, he necessarily cannot show that each of the VA’s

legitimate, nondiscriminatory reasons for his removal was pretext

for discrimination.22 Thus, in light of this failure, we find that

the district court properly granted summary judgment to the VA on

Sher's Title VII claim.

VI.

The Federal Circuit has noted the “well-established rule

of civil service law that the penalty for employee misconduct is

22
After Desert Palace, Inc. v. Costa, 539 U.S. 90, 101-02
(2003), even without direct evidence of discrimination, Sher could
have presented a mixed motive theory of discrimination rather than
the single motive theory he has presented. In a mixed motive case,
the plaintiff would only have to establish that national origin or
religious discrimination was a motivating factor in the analysis,
rather than the sole basis for the decision. See id. However,
Sher has not pursued a mixed motive theory. Before the district
court he proceeded under a single motive theory, permitting us to
conclude that he must raise a genuine issue of material fact with
respect to each of the VA's proffered legitimate nondiscriminatory
reasons. Sher may have had good reasons for taking the approach
he has chosen — for example, the remedies he would receive under
the mixed motive approach would be more limited if the VA
successfully asserted, as an affirmative defense, that it would
have made the same decision even in the absence of the
impermissible motivating factor. See, e.g., Weston-Smith v. Cooley
Dickinson Hosp., Inc., 282 F.3d 60 (1st Cir. 2002)). However,
Sher's failure to assert a mixed motive claim before the district
court amounts to a waiver of the claim. See, e.g., Ramirez
Rodriguez v. Boehringer Ingelheim Pharm., Inc., 425 F.3d 67, 78
n.12 (1st Cir. 2005); Hillstrom v. Best Western TLC Hotel, 354 F.3d
27, 31 (1st Cir. 2003).

-36-
left to the sound discretion of the agency.” Miguel v. Dep’t of

the Army, 727 F.2d 1081, 1083 (Fed. Cir. 1984). Thus, “[i]t is

only where the transgression is so minor, and a discharge based

thereon ‘so unduly harsh and unwarranted,’ that the dismissal could

be considered as constituting ‘an abuse of discretion that demands

redress by this court.’” Heffron v. United States, 405 F.2d 1307,

1312 (Ct. Cl. 1969) (citations and omissions omitted).

The penalty the VA imposed was not “unduly harsh.”

Courts have repeatedly held that removal from employment is

justified for failure to cooperate with an investigation. See,

e.g., Atwell, 286 F.3d at 991; Weston, 724 F.2d at 948. Since Sher

was not even removed from employment, but rather received a forty-

five day suspension, a demotion, and reduction in pay grade, the

penalty falls within established reasonable bounds.

Affirmed.

- Dissenting Opinion Follows -

-37-
 STAHL, Senior Circuit Judge, dissenting. I write briefly

in dissent because I believe that Sher had an objectively

reasonable concern that his statements could be used against him in

a subsequent prosecution, based on the inaccurate letter he

received from the U.S. Attorney's Office. Therefore, I would hold

that the failure to cooperate charge impinges on Sher's Fifth

Amendment right against self-incrimination and his rights under

Garrity v. New Jersey, 385 U.S. 493 (1967).

In my view, Garrity and its progeny address two separate

questions. The first ("the immunity question") is whether a

government employee's statements to his employer are in fact

protected from use in subsequent criminal prosecutions. The

majority is correct that an employee's statements are protected by

use immunity as soon as his employer requires him to speak under

threat of losing his job. See, e.g., Uniformed Sanitation Men v.

Comm'r of Sanitation, 426 F.2d 619, 626 (2d Cir. 1970), cert.

denied, 406 U.S. 961 (1972). However, this question is not

directly at issue in this case, as no subsequent prosecution was

brought against Sher.

The second question ("the discipline question"), which

Sher's appeal does implicate, is whether a government employee can

be fired or otherwise disciplined for maintaining his silence in

the face of his employer's questions. The majority concludes that,

at least where the employee is represented by counsel, he can be

disciplined for maintaining his silence at the point that use

-38-
immunity attaches. In other words, according to the majority, the

immunity question and the discipline question are answered using

the exact same test: once the employer requires a represented

employee to answer questions under the threat of discharge, the

employee automatically gets the benefit of use immunity (under the

immunity question) and also is automatically obliged to answer

questions or face discipline (under the discipline question). This

is true, the majority says, even where, as here, the employee

declines to answer his employer's questions because he has an

objectively reasonable fear that his statements will not in fact be

protected by use immunity.

A. Which Rule Should Govern the Discipline Question?

Given the complexity of this area of the law, it is not

surprising that the circuits are split as to whether a government

employer is required to advise an employee of his rights and

obligations before he can be disciplined for maintaining his

silence. As I read the cases, three circuits -- the Fifth, Eighth,

and Eleventh -- have arguably held that the government employer

does not have a disclosure obligation. See Hill v. Johnson, 160

F.3d 469, 471-72 (8th Cir. 1998) ("[T]he mere failure affirmatively

to offer immunity is not an impermissible attempt to compel a

waiver of immunity."); Hester v. City of Milledgeville, 777 F.2d

1492, 1496 (11th Cir. 1985) ("We fail . . . to see how the city's

failure to offer the plaintiffs use immunity could make any

constitutional difference. . . . [A]ny grant of use immunity to the

-39-
plaintiffs would have been duplicative."); Gulden v. McCorkle, 680

F.2d 1070, 1075 (5th Cir. 1982), cert. denied, 459 U.S. 1206 (1983)

("Failure to tender immunity was simply not the equivalent of an

impermissible compelled waiver of immunity."). However, even among

these circuits, the answer at least in the Fifth and Eleventh

circuits is not wholly clear.23

In contrast, three circuits -- the Second, Seventh, and

the Federal Circuit24 -- have concluded that the government has a

23
The cases cited address the question of whether immunity must
be "tendered" to the employee by the government. They do not,
however, address the somewhat different question, raised by Sher's
appeal, of whether discipline is permitted where the employee
remains silent because he has an objectively reasonable fear that
his answers could be used against him in a later prosecution. The
Fifth Circuit considered this question in Arrington v. County of
Dallas, 970 F.2d 1441, 1446 (5th Cir. 1992), and concluded that,
where the government allegedly warned the employee that his answers
could be used against him in a subsequent prosecution, the employee
was within his rights to remain silent and could not be disciplined
for that choice. In addition, the Fifth Circuit's decision in
Gulden did not reach the question of whether, had the employees
actually attended a required polygraph examination, the government
would have had an affirmative duty to advise them that "immunity
was available." 680 F.2d at 1076. The Eleventh Circuit's approach
on this issue is also less than clear. The Hester decision can be
read as only addressing the immunity question (whether use immunity
had attached where the employer did not "offer" such immunity)
rather than the discipline question (whether the employee can be
disciplined for maintaining his silence). See 777 F.2d at 1496.
Also, the Eleventh Circuit has expressed concern, albeit in dicta,
about employees who are unclear about the scope of their immunity
when they decide whether to cooperate with an investigation. See
Benjamin v. City of Montgomery, 785 F.2d 959, 962 (11th Cir. 1986)
("[W]e cannot require public employees to speculate whether their
statements will later be excluded under Garrity.").
24
Because, as the majority notes, most petitions for review of
a final order of the Merit Systems Protection Board are filed in
the Federal Circuit, see 5 U.S.C. § 7703(b)(1), close consideration
of that court's approach in Garrity cases is instructive.

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disclosure obligation. See Atwell v. Lisle Park Dist., 286 F.3d

987, 990 (7th Cir. 2002) ("[T]he government employer who wants to

ask an employee potentially incriminating questions must first warn

him that because of the immunity to which the cases entitle him, he

may not refuse to answer the questions on the ground that the

answers may incriminate him."); Modrowski v. Dep't of Veterans

Affairs, 252 F.3d 1344, 1351 (Fed. Cir. 2001) ("Invocation of the

Garrity rule for compelling answers to pertinent questions about

the performance of an employee's duties is adequately accomplished

when that employee is duly advised of his options to answer under

any immunity actually granted or remain silent and face

dismissal."); Sanitation Men, 426 F.2d at 627 (permitting the

firing of an employee for remaining silent where "only pertinent

questions" are asked "about the performance of his duties" and he

is "duly advised of his options and the consequences of his

choice."). In addition, the Tenth Circuit has suggested the same

result in dicta. See In re Grand Jury Subpoenas Dated December 7

and 8 v. United States, 40 F.3d 1096, 1102 n.5 (10th Cir. 1994),

cert. denied, 514 U.S. 1107 (1995) ("While this case does not

require us to decide whether the government must affirmatively

advise [an employee of his rights under Garrity], other circuits

arguably have adopted such a requirement.").

I would adopt the latter rule -- that the government

employer has a disclosure obligation -- because it fulfills the

inherently protective nature of the Supreme Court's decisions in

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Garrity and its progeny.25 While government employees may

understand that they have a Fifth Amendment right to remain silent,

they may not understand the complex exceptions to that rule under

Garrity. See Atwell, 286 F.3d at 990. Thus, in my opinion, the

rule adopted by the majority leaves government employees vulnerable

to discipline when they believe they are simply exercising a basic

constitutional right. Also, more ominously, the enunciated rule

permits the government to fire an employee for maintaining his

silence, even where the government makes incorrect, misleading, or

threatening statements regarding the employee's rights. See Hill,

160 F.3d at 473 (Heaney, J., dissenting) ("As a practical matter,

the majority's analysis impermissibly leaves public employees . .

. uninformed and guessing as to how their statements may be used,

what their constitutional rights are, and how to respond to

ambiguous requests for statements, answers to questions, or

polygraph examinations. I do not find this to be constitutionally

allowable.").

I also take issue with the majority's decision not to

adopt a firm rule to govern the discipline question. The majority

declines to determine whether the government has a disclosure

obligation, and instead bases its conclusion entirely on the fact

25
The burden on the government under such a rule would be quite
low. The Federal Circuit, for example, found sufficient the
government employer's use of a standardized disclosure form as it
was "a model of clarity" and "amply and fully conveyed" the
employee's rights. See Hanna v. Dep't of Labor, 18 Fed. Appx. 787,
789-90 (Fed. Cir. 2001).

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that Sher was accompanied by substitute counsel at his interview.

For three reasons, I believe this is a flawed basis for the

majority's conclusion. First, failing to adopt a clear rule leaves

government employees in this circuit unsure of whether their

employer is required to disclose their rights before they can be

fired for remaining silent. This is just the kind of uncertainty

that Garrity and its progeny intended to eliminate.

Second, the majority's legal basis for drawing the line

at representation is weak. While the majority may be correct that

"no circuit has held that an employee who is represented by counsel

is entitled to notice from his employer of his Garrity immunity,"

it also seems true that no circuit has held the opposite. In other

words, no circuit has drawn the line where the majority draws it

today.

The majority cites two decisions -- Atwell, 286 F.3d at

990-91, and Modrowski, 252 F.3d at 1352 -- neither of which

justifies its conclusion that a represented employee can be

disciplined for maintaining his silence once use immunity has

attached. First, the passage the majority cites from Atwell is

pure dicta. See 286 F.3d at 991. In Atwell, the Seventh Circuit

held that a discharged employee's Fifth Amendment right was not

violated because the employee failed even to attend a scheduled

investigative interview. See id. Though the court discussed the

significance of the employee's legal representation in dicta, its

decision did not turn on that fact.

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 The majority also cites the Federal Circuit's decision in

Modrowski, a case that is inapposite to the majority's reasoning

and conclusions. As a preliminary matter, Modrowski, unlike the

majority here, required that the employer "duly advise" the

employee of his rights before he could be disciplined for remaining

silent, 252 F.3d at 1351, and also took account of the employee's

reasonable belief regarding whether his statements would be used

against him in a subsequent criminal prosecution, id. at 1350-51.

Both of these rules are ones I would have adopted in this case. In

addition, the Modrowski court reversed the employee's failure to

cooperate charge for two primary reasons: (1) the declination to

prosecute letter from the U.S. Attorney's Office was ambiguous in

scope, and (2) the employee did not have full access to counsel.

Id. at 1352-53. In my view, the same conditions obtained in Sher's

case. The majority makes an error of logic when it concludes that,

because Modrowski held that the employee should have had full

access to counsel, it must logically follow that (a) full access to

counsel would have relieved the government of any disclosure

obligation, and (b) with full access to counsel, the employee's

subjective view of his legal predicament would not have been

relevant. These conclusions simply do not flow logically from

Modrowski's concern that the employee could not make an informed

decision, where, among other things, he was deprived of access to

counsel. To say, as Modrowski did, that not having counsel

deprives one of rights, is emphatically not the same as saying, as

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the majority does, that having counsel automatically guarantees

those rights.

The third problem with the majority's choice to base its

decision solely on the fact of representation is that, in this

case, the Veterans Administration (VA) investigators denied Sher's

request to postpone his interview by a mere two days so his counsel

of choice could attend the interview with him. This, despite the

VA's written assurance that Sher was entitled to a representative

of his choice. The VA's denial of Sher's reasonable postponement

request forced him to attend the interview with his attorney's

partner, who was not familiar with Sher's case or the relevant area

of law. In sum, the majority has applied a novel legal rule to a

questionable factual scenario, thus yielding a conclusion that

permits public employers to discipline employees for maintaining

their silence while unreasonably burdening their access to legal

advice.

B. The Letter from the U.S. Attorney's Office

Unlike the majority, because I believe the government has

a disclosure obligation, I think the letter from the U.S.

Attorney's Office is of crucial importance.26 The letter stated

that criminal prosecution had been declined as to three episodes of

26
Even under the majority's rule, I believe that a represented
employee who reasonably believes, based on the government's words
and actions, that his statements may indeed be used against him,
should not be punished for invoking his constitutional right to
remain silent.

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sampling by Sher. However, the letter included one date on which

no sampling had occurred (February 2001) and did not mention two

dates on which Sher had acknowledged requesting samples for

personal use (June 2000, and December 2000). In other words, as in

Modrowski, 252 F.3d at 1352, the scope of Sher's immunity was

ambiguous and Sher had a reasonable basis to believe that his

answers or their fruits could be used against him in a subsequent

criminal prosecution. Therefore, he chose to invoke his right to

remain silent pending clarification of the scope of his immunity.27

On the facts of this case, I would hold that the failure

to cooperate charge violated Sher's Fifth Amendment right and his

rights under Garrity.28 Because of the inaccurate letter from the

27
It is worth noting that Sher had previously met with
investigators on two occasions, without counsel, and had answered
their questions in full. In addition, after Sher refused to answer
questions at his third interview, his attorney sent two follow-up
letters to the VA requesting clarification of the scope of his
immunity and reiterating Sher's willingness to cooperate as long as
his right against self-incrimination was protected.
28
The majority dismisses Sher's claim that the punishment
imposed upon him was an abuse of discretion because, the majority
says, "[c]ourts have repeatedly held that removal from employment
is justified for failure to cooperate with an investigation."
However, the majority does not consider whether, if the failure to
cooperate charge were not sustained, Sher's punishment would
survive review based only on the sampling charge. Because I do not
believe the failure to cooperate charge should be sustained, I
would reexamine Sher's punishment on the sampling charge, in light
of the Douglas factors. See Douglas v. Veterans Admin., 5 M.S.P.B.
313, 332 (1981). I would particularly consider the ninth Douglas
factor -- the clarity with which the employee was on notice of any
rules that were violated. Id. Sher maintains that his
understanding of the Togus sampling policy was that it only barred
giving drug samples to patients, but permitted employees to receive
samples for personal use. Sher's understanding was echoed by

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U.S. Attorney's Office, Sher had an objectively reasonable basis to

believe that his statements could be used against him in a future

prosecution. The majority's view that the mere presence of an

attorney, and a last minute replacement at that, means that we

should close our eyes to the legitimately alarming impact that the

letter had on Sher's understanding of his legal predicament, is

unconvincing formalism and certainly not consistent with the

protective nature of the Supreme Court's jurisprudence in this

area. I therefore respectfully dissent.

overwhelming testimony from numerous employees (both physicians and
pharmacists) that they also understood that sampling for personal
use was permitted. Indeed, several witnesses testified that they
had openly sampled for personal use, believing it was permissible.
Arguably, the Togus facility's written policy on sampling is
consistent with the employees' understanding: "Due to Federal
regulations regarding drug diversion, SAMPLING IS NOT PERMITTED
within the Medical Center." In other words, sampling as to
patients was not allowed because Togus was concerned that patients
who received drug samples might sell them for money ("drug
diversion") instead of taking the medication themselves. Thus,
because the VA did not make clear to its employees that sampling
for personal use was prohibited, I would reconsider Sher's
punishment, based on the Douglas factors.

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