                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DENNIS T. MANGANO,                              DOCKET NUMBER
                   Appellant,                        SF-1221-04-0234-B-9

                  v.

     DEPARTMENT OF VETERANS                          DATE: October 31, 2014
       AFFAIRS,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Barbara Ann T. Konno, Esquire, Palo Alto, California, for the agency.

           Joseph V. Kaplan, Esquire, Washington, D.C., for the appellant.


                                           BEFORE

                            Susan Tsui Grundmann, Chairman
                            Anne M. Wagner, Vice Chairman
                               Mark A. Robbins, Member
                Vice Chairman Wagner issues a separate, dissenting opinion.

                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     denied the appellant’s request for corrective action in this individual right of
     action (IRA) appeal. Generally, we grant petitions such as this one only when:
     the initial decision contains erroneous findings of material fact; the initial

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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. See 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, and based on the following points and authorities, 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. We MODIFY
     the initial decision to address some of the appellant’s arguments related to the
     strength of the agency’s motive to retaliate and whether similarly-situated
     nonwhistleblowers were treated differently than the appellant.             We conclude,
     however, that the administrative judge correctly found that the agency proved by
     clear and convincing evidence that it would have terminated the appellant based
     on the suspension of his faculty appointment in the absence of his whistleblowing
     activity.   Accordingly, we find that the appellant is not entitled to corrective
     action.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant, a part-time Physician, Anesthesia Service, and a chapter 38
     employee, was removed from his position based on two charges: (1) failure to
     hold an active faculty position with the agency hospital’s affiliate, the University
     of California, San Francisco (UCSF) Medical School, 2 which was required to

     2
       The appellant’s faculty appointment was initially suspended effective June 1, 1999,
     and it was based on allegations of harassment and intimidation of colleagues, extensive
     and unauthorized use of University resources to financially benefit a non-University
     entity, misrepresentations to University officials, and the use of the appellant’s position
     and the name of the University to commit fraud against certain corporate research
     sponsors. MSPB Docket No. SF-1221-04-0234-W-1, Initial Appeal File (W-1 IAF),
                                                                                         3

     supervise and manage UCSF residents; and (2) misconduct towards other
     employees. W-1 IAF, Tab 5, Subtab 4g. He filed an IRA appeal, claiming that
     his May 25, 2001 termination, among other actions, was taken in retaliation for
     his 1997 disclosure to the agency’s Medical Center Director that there was
     potentially serious    animal-to-human-infectious     cross-contamination     use   of
     surgical patient-care equipment in animals and re-use in patients.         W-1 IAF,
     Tab 1, Subtab L. This is the third time that this matter is before the Board. See
     Mangano v. Department of Veterans Affairs, 109 M.S.P.R. 658 (2008); see also
     Mangano v. Department of Veterans Affairs, 104 M.S.P.R. 316 (2006). In its
     most recent remand order, the Board noted that further adjudication was required
     on the issue of whether the agency proved by clear and convincing evidence that
     it would have terminated the appellant based on the suspension of his faculty
     appointment in the absence of his whistleblowing, and it directed the
     administrative judge to allow the appellant to develop and present evidence
     regarding the strength of the agency’s evidence and the strength of the motive to
     retaliate by agency officials. Mangano, 109 M.S.P.R. 658, ¶¶ 46-47. The Board
     noted that, if the agency did not prove by clear and convincing evidence that it
     would have terminated the appellant for the suspension of his faculty appointment
     in the absence of his whistleblowing, the administrative judge may decide the
     remaining issues—including whether the agency proved that it would have
     terminated the appellant based on the misconduct charge in the absence of his
     whistleblowing—in the most efficient manner. Id., ¶ 48.
¶3        After holding a third hearing, see Hearing Transcript (HT) III, the newly
     assigned administrative judge issued a 31-page initial decision, concluding that
     the agency established by clear and convincing evidence that it would have


     Tab 5, Subtab 4x. The suspension was stayed pending an appeal, and the California
     trial court and court of appeals affirmed the suspension. See id., Subtabs 4k, 4s. The
     appellant began serving the suspension on May 24, 2001, and his termination was
     effected the following day. See id., Subtabs 4g-4h.
                                                                                             4

     removed the appellant based on the suspension of his faculty appointment in the
     absence of his whistleblowing disclosures. MSPB Docket No. SF-1221-04-0234-
     B-9, Initial Appeal File (B-9 IAF), Tab 15, Initial Decision (ID). In accordance
     with the Board’s remand order, the administrative judge did not address the
     misconduct charge, and he denied the appellant’s request for corrective action.
     See ID. 3 The appellant, with permission, filed a 59-page petition for review, the
     agency filed a response, and the appellant filed a reply brief. Petition for Review
     (PFR) File, Tabs 6, 8-9.
¶4         The issue before the Board is whether the administrative judge properly
     determined that the agency proved that it would have terminated the appellant
     based on the suspension of his faculty appointment in the absence of his
     whistleblowing.     In making this determination, the Board will consider the
     following factors: the strength of the agency’s evidence in support of its action;
     the existence and strength of any motive to retaliate on the part of the agency
     officials who were involved in the decision; and any evidence that the agency
     takes similar actions against employees who are not whistleblowers but who are
     otherwise similarly situated. Carr v. Social Security Administration, 185 F.3d
     1318, 1323 (Fed. Cir. 1999).        The administrative judge found that:          (1) the
     evidence relied upon by the agency to support the charge related to the
     suspension of the appellant’s faculty appointment was “very strong”; (2) the
     record contained “little or no evidence” that the agency’s decision to terminate
     the appellant based on the suspension of the faculty appointment was motivated
     by retaliatory animus; and (3) the appellant was not disparately treated compared
     to similarly-situated nonwhistleblowers. ID at 11-31. On review, the appellant



     3
       The administrative judge also noted in the initial decision that the appellant indicated
     that he was withdrawing his claim for consequential damages arising from any
     previously rescinded agency actions. ID at 8; see HT III at 4; W-1 IAF, Tab 18,
     Subtab I (notice of rescission).
                                                                                         5

     essentially argues that the administrative judge improperly analyzed these
     elements.
¶5        Regarding the strength of the agency’s evidence, we have considered the
     appellant’s argument that the administrative judge ignored the Board’s prior
     directives when he allowed the agency to present a new case-in-chief on the issue
     of whether the suspension of the appellant’s faculty appointment made it
     impractical to retain him. PFR File, Tab 6 at 11-14. The administrative judge
     rejected this argument below. See B-9 IAF, Tab 10 at 4 n.1 (explaining that the
     Board’s remand order set forth that “a full and proper evaluation of whether the
     agency has met its burden . . . has never been made,” and, even if this were not
     the case, a new and complete review of these questions was necessary because the
     case was reassigned to a new administrative judge after remand).
¶6        It is a well-established rule that an administrative judge has broad discretion
     to control the proceedings before him. Fritz v. Department of Health & Human
     Services, 87 M.S.P.R. 287, ¶ 15 (2000); see 5 C.F.R. § 1201.41.           Given the
     totality of the circumstances, including the complicated and complex litigation
     involved in this matter, the administrative judge’s recent reassignment of this
     case, the fact that the agency ultimately bears the burden on the issue of whether
     it still would have removed the appellant absent his whistleblowing activity, and
     the lack of evidence that the Board intended to prohibit the agency from
     presenting on remand, we find no abuse of discretion in this regard.
¶7        The appellant also asks the Board to adopt the rule that the post hoc
     rationale offered by the agency is not entitled to consideration. PFR File, Tab 6
     at 15-18; see Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 56
     (1st Cir. 2000) (“Another method of establishing pretext is to show that
     Centennial’s   nondiscriminatory    reasons   were   after-the-fact    justifications,
     provided subsequent to the beginning of legal action.”). He also requests that the
     Board adopt and apply the rule that shifting explanations for personnel actions are
     unworthy of belief and constitute illegal reprisal for whistleblowing. PFR File,
                                                                                           6

     Tab 6 at 19-22; see, e.g., Hudson v. U.S. Postal Service, Appeal No. 0120093843,
     2011 WL 2433178, at * 7 (E.E.O.C. June 6, 2011) (“The credibility of an
     employer’s explanation can be called into question if it is unduly vague, appears
     to be an after-the-fact explanation or appears otherwise fabricated (e.g., the
     explanation shifts, or inconsistent reasons are given).”). The appellant asserts
     that both of these rules are applied in the context of discrimination claims and
     these rules should apply with equal force in the context of whistleblower claims.
     PFR File, Tab 6 at 15-22. In response, the agency contends that, by applying a
     rule regarding post hoc rationale, the Board would be limiting or prohibiting
     testimony or evidence in violation of the U.S. Court of Appeals for the Federal
     Circuit’s (Federal Circuit) holding in Whitmore v. Department of Labor, 680 F.3d
     1353 (Fed. Cir. 2012). PFR File, Tab 8 at 15.
¶8         We agree with the agency that strictly applying the post hoc rationale rule
     would be at odds with the Federal Circuit’s instruction in Whitmore that the
     Board must “evaluate all of the pertinent evidence in determining whether an
     element or a claim or defense has been proven adequately.”             See Whitmore,
     680 F.3d at 1368. 4 Moreover, a witness’s changing explanations are already a
     factor to be considered by an administrative judge in assessing credibility. See
     Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987) (explaining that
     an administrative judge may consider a witness’s prior inconsistent statements in
     resolving credibility issues).
¶9         We also are not persuaded by the appellant’s argument that the
     administrative judge erroneously held that the agency proved by clear and
     convincing evidence that it was impractical to retain the appellant after his
     faculty appointment was suspended. PFR File, Tab 6 at 22-40. In this regard, the


     4
       The administrative judge considered and rejected the appellant’s argument that the
     Medical Center Director’s post hoc rationale regarding the practicality of retaining the
     appellant after his faculty appointment was suspended was unworthy of deference or
     credence, ID at 14, and we discern no error with his analysis in this regard.
                                                                                         7

      appellant   asserts   that   the   administrative   judge   erroneously found   that:
      (1) Dr. E.B., who held a locum tenens (or temporary) staff physician appointment,
      was supervising residents; (2) it would be impractical to schedule the appellant
      for surgeries; and (3) it would be impractical for the appellant to perform duties
      other than surgery. Id. He also contends that the administrative judge failed to
      consider that: (1) at least 50% of surgeries were performed without residents;
      (2) the appellant had limited clinical hours, and thus, he would only need to be
      scheduled for surgery less than 1 day per week; (3) surgery was only 40% of the
      appellant’s duties of his part-time schedule; (4) Dr. B.C., the appellant’s
      supervisor, and the individual against whom the appellant’s whistleblowing
      disclosure was made, intentionally misled the Board about how many daily
      surgeries were typically scheduled; and (5) Operating Room 7 was available for
      the appellant’s surgeries. Id. The appellant also argues that the Board need not
      give deference to the administrative judge’s credibility determinations because
      they were based on logic, not witness demeanor. Id. at 22-23.
¶10        We disagree with the appellant’s assertion that the administrative judge did
      not mention all of the cited evidence. To the contrary, the administrative judge
      acknowledged that the appellant was a part-time physician, whose appointment
      equated to approximately 30 hours per 2-week period.             ID at 2, 20.   The
      administrative judge also noted the appellant’s testimony that more than half of
      his time was spent working as a “researcher/administrative,” that he could
      perform other duties, and that there was a seventh operating room in which he
      could have worked. The administrative judge also discussed Dr. B.C.’s testimony
      regarding how staffing patterns were scheduled. ID at 16-19. It is true that the
      administrative judge did not specifically note that at least 50% of surgeries were
      performed without residents, nor did he discuss how many daily surgeries were
      typically scheduled, or that the appellant, by virtue of his part-time schedule and
      his various other duties, would only need to be scheduled for surgery
      approximately 1 day per week. We have considered this evidence, see Whitmore,
                                                                                        8

      680 F.3d at 1368, but conclude that the administrative judge properly found that
      the agency proved by clear and convincing evidence that it was impractical to
      retain the appellant once his faculty appointment was suspended, ID at 11-16.
      See, e.g., Simmons v. Department of Agriculture, 80 M.S.P.R. 380 ¶ 12 (1998)
      (finding that the Board had no authority to order a university to maintain the
      appellants in their university appointments, a prerequisite to their federal
      appointments).
¶11        As the administrative judge noted in the initial decision, the record supports
      a long-standing affiliation between the agency’s medical center and UCSF, and
      that, pursuant to this affiliation, anesthesia physicians were jointly recruited and
      were required to hold faculty appointments and supervise residents. See, e.g.,
      W-1 IAF, Tab 5, Subtabs 4y, 4cc (affiliation agreements); MSPB Docket No.
      SF-1221-04-0234-W-4, Initial Appeal File (W-4 IAF), Tab 15, Subtab W (the
      appellant’s 1996 proficiency report, which rated him “high satisfactory” in the
      category of educational competence, including effectiveness in teaching,
      monitoring, and coordinating education activities); HT III at 49 (affiliation
      agreement requires faculty members to teach residents), 213 (Chief of Staff
      explained that the agency’s medical center and the University of California have a
      “very close affiliation,” the affiliation agreement “probably began” in the 1960s,
      and that as a result of this affiliation, the agency’s medical center and the
      University jointly recruit physicians). The suspension of the appellant’s faculty
      appointment rendered him unable to supervise residents, made him unable to
      perform one of his duties, and led to his termination. See, e.g., W-1 IAF, Tab 5,
      Subtab 4g (decision letter), Subtab 4v (the Chair of the Anesthesiology
      Department, upon learning of the suspension of the appellant’s faculty
      appointment, stated that “in accord with the affiliation agreement, [the appellant]
      should no longer be allowed to participate in patient care teaching or research
      activities”), Subtab 4w (the University’s notice to the medical center of the
      suspension of the appellant’s faculty appointment stated that it was sharing the
                                                                                        9

      information “so that appropriate staffing and other necessary administrative
      decisions could be implemented”); see also HT III at 30 (Dr. B.C. testified that
      there were no permanent staff anesthesiologists who did not have a faculty
      appointment), 213 (Chief of Staff testified that the agency’s medical center
      “agree[d] to supervise [the University’s] residents in a way that [the University]
      require[s] for their accreditation of programs”), 288 (Medical Center Director
      explained that, “[a]s a Staff Anesthesiologist, [the appellant] would need to be
      involved in residency, training, supervision, and oversight, and [without his
      faculty appointment,] he could no longer function in that capacity”). The record
      also reflects the practical difficulty in assigning an anesthesiologist to perform
      surgeries when that individual did not have a faculty appointment.        See, e.g.,
      HT III at 32-33 (Dr. B.C. explained that it would be an “onerous burden” because,
      among other things, surgical assignments are revised during the day and it would
      be “quite difficult” to prevent a physician without a faculty appointment from
      having contact with residents), 226 (Chief of Staff stated that it would be “very,
      very awkward to have one anesthesiologist who had to be treated differently from
      all the others,” noting that such differential treatment might cause a “morale
      problem” and describing how it would be “extremely hard to . . . keep [the
      appellant] from having to supervise a resident or be on-call with a resident”).
¶12        The appellant correctly notes that the administrative judge did not make any
      explicit demeanor-based credibility determinations. PFR File, Tab 6 at 22-23.
      However, the administrative judge heard live testimony and his credibility
      determinations must be implicitly based on witness demeanor.          See Little v.
      Department of Transportation, 112 M.S.P.R. 224, ¶ 4 (2009). The Board must
      give deference to an administrative judge’s credibility determinations when they
      are based, explicitly or implicitly, on the observation of 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
      of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) . The appellant has not identified
                                                                                         10

      any   sufficiently   sound   reasons   for   overturning   the   judge’s   credibility
      determinations. Moreover, we are not aware of any prohibition on using “logic”
      to assist in the resolution of credibility issues.   See, e.g., Confer v. Office of
      Personnel Management, 111 M.S.P.R. 419, ¶ 17 (2009) (“[W]e do not find that
      the appellant’s later statements about her general inability to function are
      logically inconsistent with her ability to work as a home health care aide shortly
      after her resignation, and these statements do not undermine her credibility.”);
      Hillen, 35 M.S.P.R. at 458 (in resolving credibility disputes, an administrative
      judge may consider the contradiction of the witness’s version of events by other
      evidence or its consistency with other evidence and the inherent improbability of
      the witness’s version of events).
¶13         The administrative judge considered the entire record before him as well as
      the Board’s instruction in the remand order and he made findings and credibility
      determinations based on that record. We discern no error with the administrative
      judge’s conclusions regarding the strength of the agency’s evidence. See Crosby
      v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to
      disturb the administrative judge’s findings when the administrative judge
      considered the evidence as a whole, drew appropriate inferences, and made
      reasoned conclusions); see also Broughton v. Department of Health & Human
      Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶14         Regarding the existence and the strength of the agency’s motive to retaliate,
      the Board previously found that Dr. B.C. was “involved” in the agency’s decision
      to terminate the appellant, but that his “animosity and bitterness” towards the
      appellant does not resolve the issue of whether that animosity was related to the
      appellant’s whistleblowing, and remanded this issue for further development of
      the record and adjudication. Mangano, 109 M.S.P.R. 658, ¶¶ 32, 34-35, 47. The
      administrative judge noted, among other things, that Dr. B.C.’s involvement with
      the faculty appointment suspension charge was “vanishingly small,” both
      Dr. B.C. and the Medical Center Director testified that they did not speak to each
                                                                                      11

      other regarding this charge, and the Medical Center Director said she did not
      know the appellant; the administrative judge concluded that there was “little or no
      evidence” that the agency’s decision to terminate the appellant for the suspension
      of his faculty appointment was motivated by retaliatory animus. ID at 23-30.
¶15        On review, the appellant argues that the administrative judge “ignored” the
      law of the case doctrine concerning Dr. B.C.’s involvement and contends that the
      administrative judge violated the law when he found that the Medical Center
      Director did not have a retaliatory motive. PFR File, Tab 6 at 40-48. Under the
      law of the case doctrine, “a decision on an issue of law made at one stage of a
      proceeding becomes a binding precedent to be followed in successive stages of
      the same litigation.” King v. Department of the Air Force, 119 M.S.P.R. 663,
      ¶ 30 (2013); see Mangano, 109 M.S.P.R. 658, ¶ 24. The Board’s finding that
      Dr. B.C. was “involved” in the agency’s decision to terminate the appellant does
      not require a finding that Dr. B.C. had a strong motive to retaliate against the
      appellant regarding the suspension of his faculty appointment. Indeed, the Board
      stated in its remand order that it was unable to decide the strength of Dr. B.C.’s
      motive to retaliate against the appellant for his whistleblowing based on the
      existing record. Mangano, 109 M.S.P.R. 658, ¶ 35.
¶16        We discern no error with the administrative judge’s decision regarding the
      strength of Dr. B.C.’s motive to retaliate against the appellant concerning the
      suspension of his faculty appointment. Notably, there was no proposal notice,
      and thus, the Medical Center Director was the “sole” decision-maker on the
      termination.   ID at 25.    Based on the testimonial evidence in the record,
      Dr. B.C.’s involvement in the decision to terminate the appellant due to the
      suspension of his faculty appointment was at best de minimis, and thus, any
      animosity that he held based on the appellant’s whistleblowing disclosure played
      little, if any, role in the termination decision. Moreover, the appellant does not
      allege on review, and the record does not reflect, that Dr. B.C. caused UCSF to
                                                                                      12

      suspend the appellant’s faculty appointment or that UCSF’s suspension of his
      faculty appointment was in any way related to his whistleblowing activity.
¶17        We modify the initial decision, however, because the appellant correctly
      notes that the Board may find a retaliatory motive if an agency official, such as
      the Medical Center Director, knew of the disclosures and the disclosures reflected
      poorly on her. PFR File, Tab 6 at 43; see Whitmore, 680 F.3d at 1370-71 (“Those
      responsible for the agency’s performance overall may well be motivated to
      retaliate even if they are not directly implicated by the disclosures, and even if
      they do not know the whistleblower personally, as the criticism reflects on them
      in their capacities as managers and employees.”). Here, there is no dispute that
      the Medical Center Director was aware of the appellant’s whistleblowing
      disclosures, HT III (Medical Center Director) at 353-54, and, if the appellant’s
      disclosure was made public, it is likely that such disclosures would reflect poorly
      on her.
¶18        The appellant contends that the Medical Center Director’s actions,
      including, among other things, refusing to meet with him to discuss his
      whistleblowing allegations, barring him from the premises without obtaining
      prior written notice, convening an Administrative Investigative Board (AIB) to
      look into his alleged misconduct, and expanding the scope of the AIB constitute
      strong evidence of retaliatory motive. PFR File, Tab 6 at 46; see, e.g., W-1 IAF,
      Tab 5, Subtab 4p (bar notice); W-4 IAF, Tab 15, Subtab K (Medical Center
      Director convened an AIB to investigate the April 24, 2000 incident), Subtab L
      (clarification of the scope of the AIB). We note that the administrative judge
      considered and rejected some of these allegations. See ID at 29-30. We are not
      persuaded that the appellant’s allegations warrant a different conclusion regarding
      the strength of the Medical Center Director’s motive to retaliate against the
      appellant. Indeed, the Medical Center Director testified—credibly in our view—
      that she regarded the suspension of the appellant’s faculty appointment as a “clear
      cut” issue and that she did not have any discretion or a need for “extensive
                                                                                        13

      conversations with the supervisor” to proceed with the appellant’s termination on
      this charge. HT III (Medical Center Director) at 298-301, 369-70. Her actions
      support this assertion.     Indeed, upon learning that the appellant’s faculty
      appointment was originally suspended in 1999, and before the incident that
      formed the basis for the misconduct charge ever occurred, the Medical Center
      Director immediately proceeded to terminate him.           See W-1 IAF, Tab 5,
      Subtab 4u (May 26, 1999 termination of appointment). 5      As for the other actions
      identified by the appellant, one of the Medical Center Director’s duties was to
      convene AIBs, HT III (Medical Center Director) at 305-06; indeed, she convened
      an AIB to investigate the allegations that the appellant made against Dr. B.C., see
      W-4 IAF, Tab 15, Subtab F. Moreover, as a result of an investigation into the
      whistleblowing allegations that the appellant made against Dr. B.C., the Medical
      Center Director issued a written admonishment or counseling to Dr. B.C. HT III
      (Medical Center Director) at 349-51.      Based on our review of the record, we
      cannot conclude that these actions evince the Medical Center Director’s
      retaliatory motive towards the appellant based on his whistleblowing.            We
      therefore affirm as modified the administrative judge’s analysis of this element,
      and we agree that the strength of the agency’s motive to retaliate regarding the
      suspension of the appellant’s faculty appointment was not very strong.
¶19        Finally, the appellant challenges the administrative judge’s findings
      regarding alleged similarly-situated employees who were not whistleblowers.
      PFR File, Tab 6 at 48-53.        For instance, the appellant contends that the
      administrative judge erroneously found that Drs. U.J. and G.F. were similarly
      situated and that the administrative judge also erred when he found that Dr. E.B.
      was not similarly situated. Id.; see ID at 30-31 (finding that, in every comparable
      situation where a jointly-accredited physician like the appellant lost his faculty
      appointment, the physician was notified that he would be terminated).
      5
        The termination was stayed pending a resolution in the California courts. See supra
      n.2.
                                                                                         14

¶20         Regarding Dr. G.F., the appellant claims that the Medical Center Director’s
      testimony, that she terminated Dr. G.F. after he lost his faculty appointment,
      constituted “surprise and unsupported testimony.” PFR File, Tab 6 at 51; see id.
      at 55-56 (the appellant’s affidavit). The appellant contends that the agency never
      mentioned Dr. G.F.’s termination in any of its discovery responses, he did not
      know Dr. G.F., and he was “totally unaware” that the agency would consider him
      as a comparator.     Id. at 51 & n.31.       To that end, the appellant provides a
      statement from Dr. G.F., made under penalty of perjury, which appears to
      contradict the Medical Center Director’s testimony. See id. at 57-58.
¶21         Importantly, the appellant did not object to the Medical Center Director’s
      testimony regarding Dr. G.F., HT III at 302-03, 336, nor did he seek additional
      time to submit rebuttal evidence. Moreover, he did not raise the “surprise” issue
      in his closing argument, which he submitted more than 1 month after the hearing.
      See B-9 IAF, Tab 14. In fact, the appellant did not raise this issue at any time
      prior to the initial decision being issued, nearly 8 months after the hearing; rather,
      he only claimed surprise after the administrative judge issued an initial decision
      finding Dr. G.F. to be similarly situated.
¶22         The Board has previously held that a rebuttal to “surprise” witness
      testimony does not constitute new evidence when the appellant did not request an
      extension of time in order to rebut the alleged surprise, and his posthearing brief
      did not allude to any surprise.      Wakeland v. National Transportation Safety
      Board, 6 M.S.P.R. 37, 38-39 (1981).          Similarly, we find that the appellant’s
      statement from Dr. G.F. does not constitute new evidence. Moreover, evidence
      offered merely to impeach a witness’s credibility is not generally considered new
      and material. Bucci v. Department of Education, 42 M.S.P.R. 47, 55 (1989). For
      these reasons, we do not consider Dr. G.F.’s statement on review.
¶23         The appellant also asserts that, contrary to Dr. B.C.’s testimony, Dr. U.J.
      was never advised that he was required to have a faculty appointment in order to
      maintain his position, and he refers to Dr. U.J.’s 2005 affidavit, which was in the
                                                                                        15

      record below. PFR File, Tab 6 at 49-51. Dr. U.J. averred, in pertinent part, that
      he held a faculty appointment from 1995-2001 when he worked as a Staff
      Anesthesiologist, he was never advised that he was required to have a faculty
      appointment as a condition or requirement of his employment, and he was
      unaware of such a requirement. W-4 IAF, Tab 15, Subtab QQQ. The appellant
      properly notes that the administrative judge did not discuss this evidence in the
      initial decision. We have considered Dr. U.J.’s affidavit. Even if there were an
      inconsistency about whether Dr. B.C. told Dr. U.J. that he needed to have a
      faculty appointment to keep his position, there is no evidence that Dr. U.J. was
      permitted to perform his services as an anesthesiologist at a time when he did not
      have a faculty appointment.
¶24        Regarding Dr. E.B., the appellant contends that the administrative judge
      incorrectly concluded that Dr. E.B. was mistakenly allowed to supervise
      residents, and he focuses on the testimonial evidence purportedly showing that
      Dr. E.B. performed surgeries in which he did not supervise residents. PFR File,
      Tab 6 at 52-53 (referring to his argument at id. at 23-27). As the administrative
      judge correctly noted, Dr. E.B. was hired on a temporary basis because the
      agency had a “great clinical need,” and he was not jointly recruited by the agency
      and the University. ID at 30-31; see HT III (B.C.) at 23. We therefore agree with
      the administrative judge that Dr. E.B. was not similarly situated to the appellant.
¶25        Our reviewing court, in Whitmore, 680 F.3d at 1373, noted that “similarly
      situated” does not mean “identically situated” to the whistleblower. In Whitmore,
      the court concluded that the two purported comparators, who each had
      supervisory positions within the same branch of the same department and
      operated within the same chain of command, were similarly situated to
      Mr. Whitmore “from an employment position and responsibility perspective.”
      Here, however, the temporary nature of Dr. E.B.’s locum tenens appointment,
      coupled with the fact that he was hired through a private company, meant that he
      did not hold a faculty appointment and he was not subject to the same supervision
                                                                                          16

      responsibilities as other physicians, including the appellant, who had held such an
      appointment.      For these reasons, we conclude that Dr. E.B. was not similarly
      situated to the appellant.
¶26           For these reasons, we affirm the initial decision as modified herein.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
              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 have the right to
      request the United States Court of Appeals for the Federal Circuit to review this
      final decision.
              The court must receive your request for review no later than 60 calendar
      days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
      27, 2012). If you choose to file, be very careful to file on time. The court has
      held that normally it does not have the authority to waive this statutory deadline
      and that filings that do not comply with the deadline must be dismissed. See
      Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
              If you want to request review of the Board’s decision concerning your
      claims     of   prohibited   personnel   practices   under   5   U.S.C.   § 2302(b)(8),
      (b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
      the Board’s disposition of any other claims of prohibited personnel practices, you
      may request review of this final decision by the United States Court of Appeals
      for the Federal Circuit or any court of appeals of competent jurisdiction. The
      court of appeals must receive your petition for review within 60 days after the
      date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
      you choose to file, be very careful to file on time. You may choose to request
      review of the Board’s decision in the United States Court of Appeals for the
      Federal Circuit or any other court of appeals of competent jurisdiction, but not
      both.    Once you choose to seek review in one court of appeals, you may be
      precluded from seeking review in any other court.
                                                                                 17

         If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States     Code,    at   our   website,   http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective         websites,     which       can      be      accessed      through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
         If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for a list of attorneys who have
expressed interest in providing pro bono representation for Merit Systems
Protection Board appellants before the Federal Circuit. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                             ______________________________
                                           William D. Spencer
                                           Clerk of the Board
Washington, D.C.
                     DISSENTING OPINION OF ANNE M. WAGNER

                                              in

                   Dennis T. Mangano v. Department of Veterans Affairs

                          MSPB Docket No. SF-1221-04-0234-B-9

¶1         I respectfully dissent and would remand this appeal for a determination as
     to whether the involvement of agency personnel in the faculty suspension process
     at the University of California, San Francisco (UCFS) constituted a personnel
     action (i.e., a threat to an appointment) within the meaning of the Whistleblower
     Protection Act (WPA) under Mattil v. Department of State, 118 M.S.P.R. 662
     (2012), and Dorney v. Department of the Army, 117 M.S.P.R. 480 (2012).
¶2         This is the third time that this individual right of action (IRA) appeal has
     been before the Board on petition for review. See Mangano v. Department of
     Veterans Affairs, 109 M.S.P.R. 658 (2008); see also Mangano v. Department of
     Veterans Affairs, 104 M.S.P.R. 316 (2006). The agency removed the appellant, a
     part-time staff physician appointed under Title 38, effective May 25, 2001, after
     22 years of service with the San Francisco Veterans Affairs Medical Center, San
     Francisco, based on two charges: (1) failure to hold a faculty position with the
     agency’s hospital affiliate, UCSF Medical School; and (2) misconduct toward
     other employees. Mangano v. Department of Veterans Affairs, MSPB Docket No.
     SF-1221-04-0234-W-1, Initial Appeal File (W-1 IAF), Tab 5, Subtab 4g. The
     appellant claimed that the agency removed him in retaliation for his
     September 1997 disclosures that his supervisor, Dr. B.C., engaged in potentially
     dangerous animal-human infectious cross-contamination by using surgical
     equipment in animals and re-use in human patients. W-1 IAF, Tab 1, Subtab H at
     4, Subtab I at 5. The appellant also alleged that agency officials further retaliated
     against him by, inter alia, testifying against him and recruiting other colleagues
     to testify against him in the UCSF’s administrative hearing before its Committee
     on Privilege and Tenure. Id., Subtab H at 5-6, Subtab I at 7-8.
                                                                                     2

¶3         In the latest remand decision, the administrative judge found that the
     appellant established that he made a protected disclosure and that the disclosure
     was a contributing factor in his removal. He concluded, however, that the agency
     established by clear and convincing evidence that it would have removed the
     appellant based on the suspension of his faculty appointment from the UCSF in
     the absence of his whistleblowing and, consequently, denied the appellant’s
     request for corrective action. MSPB Docket No. SF-1221-14-0234-B-9, Initial
     Appeal File, Tab 15, Initial Decision (ID) at 9-31.     While finding retaliatory
     animus on the part of Dr. B.C. against the appellant, the administrative judge
     nevertheless concluded that the agency’s decision to remove the appellant was
     unaffected by it because the suspension of his faculty appointment alone justified
     the action. ID at 27-30.
¶4         However, in light of evidence of Dr. B.C.’s alleged retaliatory campaign to
     “blacklist” the appellant from future employment with the agency, as well as the
     involvement of Dr. B.C. and other agency personnel in the UCSF’s suspension
     action against the appellant, it cannot be assumed that the suspension was a
     completely independent and intervening action unaffected by the retaliatory
     animus. See Mattil, 118 M.S.P.R. 662, ¶ 17 (2012) (although “blacklisting” per
     se is not an enumerated personnel action under the WPA, broadly construed, it
     could constitute a failure to appoint).    Thus, under a cat’s paw theory, the
     deciding official’s removal decision may well have been tainted by unlawful
     retaliatory animus. See Dorney, 117 M.S.P.R. 480, ¶¶ 11-13. I would therefore
     remand this appeal for further development of the record as to the agency’s
     involvement with the UCSF suspension action.



     ______________________________
     Anne M. Wagner
     Vice Chairman
