                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2015 MSPB 38

                            Docket No. CH-1221-11-0498-B-1

                                   Francis A. Mithen,
                                        Appellant,
                                             v.
                           Department of Veterans Affairs,
                                         Agency.
                                       May 28, 2015

           Kurt Cummiskey, Esquire, Saint Louis, Missouri, for the appellant.

           Paul Petraborg, Esquire, Saint Louis, Missouri, for the agency.

                                         BEFORE

                             Susan Tsui Grundmann, Chairman
                                Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     denied his request for corrective action in a remanded individual right of action
     (IRA) appeal. For the following reasons, we GRANT the petition for review,
     VACATE the finding on an abandoned claim, REVERSE the finding that the
     appellant did not make a protected disclosure, FIND that the agency has proven
     by clear and convincing evidence that it would have taken the same action absent
     his protected disclosure, and DENY the appellant’s request for corrective action.
                                                                                                2

                                         BACKGROUND
¶2            The appellant is alleging that the agency indefinitely detailed him from the
     Program        Manager   of   Neurology       position   at   the   Saint   Louis Veterans
     Administration Medical Center (VAMC) to a Staff Neurologist position in
     reprisal for whistleblowing. Mithen v. Department of Veterans Affairs, MSPB
     Docket No. CH-1221-11-0498-W-1, Initial Appeal File (IAF), Tabs 1, 7. The
     VAMC is affiliated with Saint Louis University (SLU). Hearing Transcript (HT)
     at 11. The appellant has been a full-time employee at the VAMC and affiliated
     with SLU since July 1, 1983. IAF, Tab 31 at 5. The appellant also had been the
     VAMC Residency Program Coordinator, supervising medical residents from SLU
     who worked in the Neurology Department. IAF, Tab 1, Attachment 1. In early
     September 2010, prior to the appellant’s disclosure, the Chairman of Neurology
     and Psychiatry at SLU (SLU Chairman) informed the VAMC that several
     residents had complained about the appellant’s conduct. IAF, Tab 12 at 17-19.
     On or about September 13, 2010, the agency convened an Administrative
     Investigative Board (AIB) to investigate the complaints. Id. at 93-95. During the
     AIB investigation, the appellant, at the agency’s direction, abstained from his
     collateral duties as the VAMC Residency Program Coordinator for Neurology but
     continued as the Program Manager for Neurology. IAF, Tab 31 at 6. The AIB
     issued     a    report   on   January   24,     2011,    which      concluded   as   follows:
     (1) communications and interactions between the appellant and some of the
     residents were generally poor during the SLU rotations at the VAMC; (2) in some
     instances, the appellant had unreasonable expectations of some trainees; (3) poor
     customer service was a concern in some instances; and (4) unprofessional conduct
     also was a concern. IAF, Tab 12 at 181-83.
¶3            On March 2, 2011, the VAMC Executive Board approved a reorganization
     which dissolved Specialty Care, including the Neurology Program. Id. at 187,
     191-92.        The reorganization created new positions, including the Chief of
     Neurology, the Chief of Psychiatry, and the Chief of Anesthesiology, reporting
                                                                                    3

     directly to the Chief of Staff.    Id.   The new Chief of Neurology position
     encompassed the appellant’s duties as VAMC Residency Program Coordinator for
     Neurology and his duties as Program Manager for Neurology. Id. The new Chief
     of Neurology position was going to be advertised for applicants. IAF, Tab 31
     at 6-7.
¶4         On March 24, 2011, the VAMC Acting Chief of Staff (Acting Chief) and
     Specialty Care Associate Chief of Staff, the appellant’s supervisor, met with the
     appellant to discuss the AIB’s recommendations.       HT at 110.     During this
     meeting, the Acting Chief told the appellant that the VAMC would undergo a
     reorganization that would include advertising a Chief of Neurology position, for
     which the appellant could apply, and that SLU would collaborate with the VAMC
     in the selection decision.   HT at 115-23, 186-89.   The appellant alleges that,
     during this meeting, the Acting Chief told him that the SLU Chairman held “veto
     power” over the selection of a new Chief of Neurology. IAF, Tab 7 at 2, Exhibit
     (Ex.) A.   During the meeting, the appellant was told to continue having no
     interaction with the residents and medical students. IAF, Tab 33, Subtab O.
¶5         On March 25, 2011, the appellant sent a memorandum entitled “Improper
     Influence” to the Human Resources Manager, Acting Chief of Staff, and Director
     of the VAMC. IAF, Tab 7, Ex. A. In the memorandum, the appellant asserted
     that the SLU Chairman:       (1) caused an unsubstantiated investigation of the
     appellant; and (2) had “veto power” over the selection for the Chief of Neurology
     position at the VAMC. Id. The appellant has alleged that this March 25, 2011
     memorandum is his protected whistleblowing disclosure. IAF, Tab 7 at 2.
¶6         On March 28, 2011, the SLU Chairman memorialized a discussion with the
     Acting Chief from the previous day informing her that SLU was restricting its
     residents’ activities at the VAMC Neurology Department.            IAF, Tab 33,
     Subtab G. By memorandum dated April 5, 2011, the VAMC Director informed
     the appellant that, effective April 6, 2011, he would be detailed to a Staff
     Neurology position and relieved of any responsibility related to the Neurology
                                                                                       4

     Residency Program. IAF, Tab 1, Attachment 2. After seeking corrective action
     through the Office of Special Counsel, the appellant filed this IRA appeal. IAF,
     Tab 1.
¶7            The administrative judge found that the Board had jurisdiction over the
     appellant’s IRA appeal.        IAF, Tab 30 at 3.         Following a hearing, the
     administrative judge issued an initial decision finding that the appellant failed to
     show that he made a protected disclosure. IAF, Tab 37, Initial Decision (ID)
     at 5-9.    The administrative judge also found that, assuming the appellant had
     made a protected disclosure, he met his burden of showing that the disclosure was
     a contributing factor in the agency’s actions by satisfying the knowledge/timing
     test. ID at 10. The administrative judge found, however, that the agency showed
     by clear and convincing evidence that it would have detailed the appellant even
     absent the disclosure. ID at 11-14. The appellant filed a petition for review of
     this initial decision, which the Board granted. Mithen v. Department of Veterans
     Affairs, 119 M.S.P.R. 215, ¶ 1 (2013).
¶8            The Board issued a remand order affirming the initial decision’s finding
     concerning contributing factor but stating that the administrative jud ge should
     make appropriate credibility determinations in deciding whether the appellant
     proved by preponderant evidence that he made a protected disclosure and whether
     the agency proved by clear and convincing evidence that it would have detailed
     the appellant from his position even absent his disclosure. Id., ¶¶ 23-24. The
     remand order also stated that the administrative judge was to apply the guidance
     provided by the court in Whitmore v. Department of Labor, 680 F.3d 1353 (Fed.
     Cir. 2012), in determining whether the agency proved by clear and convincing
     evidence that it would have detailed the appellant from his position in the absence
     of   the    disclosures   contained   in   his   March   25,   2011   memorandum.
     Mithen, 119 M.S.P.R. 215, ¶¶ 19, 24.
¶9            On remand, the administrative judge gave both parties an opportunity to
     file additional briefs addressing the issues identified in the Board’s remand order.
                                                                                       5

      Mithen v. Department of Veterans Affairs, MSPB Docket No. CH-1221-11-0498-
      B-1, Remand Appeal File (RAF), Tab 9. After receiving both parties’ briefs, the
      administrative judge issued an initial decision denying the appellant’s request for
      corrective action.    RAF, Tab 14, Remand Initial Decision (RID).              The
      administrative judge found that the appellant failed to show that he reasonably
      believed his disclosure evidenced an abuse of authority.      RID at 4-16.     The
      appellant has filed a petition for review arguing that the administrative judge
      failed to make the credibility determinations required by the remand order and in
      accordance with the Board’s precedent.       Mithen v. Department of Veterans
      Affairs, MSPB Docket No. CH-1221-11-0498-B-1, Remand Petition for Review
      (RPFR) File, Tab 1.

                                         ANALYSIS
¶10         As a preliminary matter, the Board found in its decision on the appellant’s
      first petition for review that he had not contested the administrative judge’s
      finding that his disclosure concerning the investigation was not a protected
      disclosure. Mithen, 119 M.S.P.R. 215, ¶ 14 n.10. The Board did not consider
      this issue on review and did not remand this issue to the administrative judge. Id.
      We agree with the appellant that this issue was abandoned, RPFR File, Tab 1 at 5,
      and we VACATE the initial decision’s findings on this matter.
      The administrative judge properly applied the Hillen factors in making the
      required credibility determinations.
¶11         On review, the appellant argues that the administrative judge erred in her
      credibility determinations. RPFR File, Tab 1 at 6. Specifically, he argues that
      the credibility determinations are incomplete because, although the administrative
      judge cites to the factors articulated in Hillen v. Department of the
      Army, 35 M.S.P.R. 453 (1987), the initial decision does not contain a detailed
      explanation as to why she found the agency’s version of events more credible
      than the appellant’s. RPFR File, Tab 1 at 6-7. The appellant also argues that
      several relevant Hillen factors were not considered. Id. at 11-14. Finally, the
                                                                                       6

      appellant argues that, in applying several Hillen factors, the administrative judge
      erred in analyzing the relevant evidence. Id. at 15-18.
¶12         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.        Haebe v. Department of
      Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant appears to argue
      that the administrative judge could not properly assess demeanor because the
      hearing was held via video conference. RPFR File, Tab 1 at 7. The appellant did
      not object to the hearing being held via video conference.          Moreover, the
      appellant has not identified any problem with the video conference that would
      undermine the administrative judge’s ability to assess the witnesses’ demeanor.
      See, e.g., Vicente v. Department of the Army, 87 M.S.P.R. 80, ¶ 8 (2000) (the
      video conference was interrupted throughout with technical difficulties); Perez v.
      Department of the Navy, 86 M.S.P.R. 168, ¶ 7 (2000) (the administrative judge’s
      view was primarily of the back of the witnesses’ heads and sometimes a profile
      view). In this appeal, the administrative judge appears to have taken particular
      care to ensure that she could fully observe each witness as they testified. See,
      e.g., HT at 6-7, 65, 68, 110. We find no error in the administrative judge’s citing
      to demeanor in her credibility analysis. E.g., ID at 14-15.
¶13         The appellant cites to Frey v. Department of Labor, 359 F.3d 1355 (Fed.
      Cir. 2004), for the proposition that a conclusory citation to demeanor as the
      deciding factor in a credibility determination should not be granted deference.
      RPFR File, Tab 1 at 7. We do not agree with the appellant’s interpretation of the
      Frey decision. The court in Frey stated that the evaluation of witness credibility
      is a matter within the administrative judge’s discretion and is “virtually
      unreviewable.” Frey, 359 F.3d at 1361. Even if we were to apply the appellant’s
      interpretation of Frey, there is no indication in the initial decision that the
      administrative judge relied on demeanor as the “deciding factor” in making her
      credibility determination.   The Board has stated that an administrative judge’s
                                                                                        7

      credibility determination is not owed deference where the findings are
      incomplete, inconsistent with the weight of the evidence, and do not reflect the
      record as a whole. Faucher v. Department of the Air Force, 96 M.S.P.R. 203, ¶ 8
      (2004). After a thorough review of the record, we find that the administrative
      judge’s credibility determinations are complete, consistent with the weight of the
      evidence, and supported by the record.
¶14            The appellant argues that the administrative       judge’s findings are
      incomplete because she failed to consider relevant Hillen factors.      RPFR File,
      Tab 1 at 6-14. Specifically, the appellant argues that the administrative judge
      failed to consider the appellant’s character, the consistency of his version of
      events and the record evidence, his opportunity and capacity to observe the event
      in question, and the inconsistency of the Acting Chief’s statements about whether
      the agency could have handled the recommendations of the AIB differently, why
      she consulted with agency counsel, and whether she told the appellant that the
      SLU Chairman held “veto power” over the selection for the new Chief of
      Neurology. Id. An administrative judge’s failure to mention all of the evidence
      of record does not mean that she did not consider it in reaching her decision.
      Diggs v. Department of Housing & Urban Development, 114 M.S.P.R. 464, ¶ 8
      (2010). Not specifically discussing every evidentiary matter or Hillen factor does
      not mean that an administrative judge failed to consider them.         See Neff v.
      Department of the Treasury, 39 M.S.P.R. 142, 145 (1988), aff’d, 884 F.2d 1398
      (Fed. Cir. 1989).
¶15            Both the appellant and the Acting Chief had equal opportunity and capacity
      to observe the March 24, 2011 meeting when the Acting Chief allegedly told the
      appellant that the SLU Chairman could exercise “veto power” in the selection of
      the new Chief of Neurology, so this particular Hillen factor does not suggest that
      either version of what occurred during the meeting is more credible than the
      other.    Similarly, there is no evidence in the record that the character of the
      appellant, or any of the witnesses who testified at the hearing, renders that person
                                                                                        8

      more prone to testify untruthfully. See Hillen, 35 M.S.P.R at 459. The facts that
      the appellant relies on to impeach the Acting Chief’s character, such as the
      Acting Chief’s holding the Acting Chief of Staff position when the appellant
      made his disclosures, but holding the presumably lower position, Deputy Chief of
      Staff, at the time of the hearing, RPFR File, Tab 1 at 12, are not relevant in
      assessing her character.
¶16         The appellant argues that his nonselection for the Chief of Neurology
      position proves that the SLU Chairman exercised “veto power” in the selection
      process, and therefore his version of events is more credible. Id. at 7-9. The
      appellant claims that he sought to offer evidence on remand that had not been
      available at the prior hearing concerning his nonselection for the Chief of
      Neurology position, but the administrative judge concluded that she needed no
      further evidence. Id. at 7-8. The record reflects that the parties participated in a
      discovery conference call with the administrative judge during which the
      appellant’s request for the “promotion package” for the Chief of Neurology
      position was discussed.    IAF, Tab 7.    The administrative judge instructed the
      appellant to file a motion for any disputed discovery requests. Id. The appellant
      did not file a motion to compel discovery. The record does not contain evidence
      about who participated in the selection for the Chief of Neurology position. The
      appellant’s nonselection is insufficient evidence to prove that the SLU Chairman
      exercised “veto power” during the selection process, and we find it immaterial to
      the credibility determination.
¶17         On review, the appellant has cited three statements by the Acting Chief that
      he argues show inconsistencies in her testimony. RPFR File, Tab 1 at 13-14. The
      first statement comes from the parties’ joint stipulations.     The parties jointly
      stipulated that the Acting Chief told the appellant during a meeting on March 24,
      2011, that, “although she and the Director ‘could have handled the matter
      differently,’ there would be no disciplinary action against Appellant as a result of
      the AIB investigation.” IAF, Tab 31 at 6. During the hearing, the Acting Chief
                                                                                       9

      was asked whether she told the appellant the matter “could” be handled
      differently. HT at 109-10. In the same question she also was asked whether she
      told the appellant the matter “should” be handled differently. Id. She responded
      “that’s something I don’t recall saying—I did not say that.” Id. We find the
      Acting Chief’s testimony at the hearing is not inconsistent with the parties’ joint
      stipulation because the compound form of the question the Acting Chief was
      asked means she could have been answering either of the two questions posed.
¶18         The appellant also alleges that the Acting Chief provided inconsistent
      testimony about her reason for consulting with agency counsel. RPFR File, Tab 1
      at 13. Having reviewed the two statements cited by the appellant, we find these
      statements are not inconsistent. Compare HT at 114, with HT at 143. Based on
      our review of the record, we find that the Acting Chief provided consistent
      testimony concerning the material facts as found by the administrative judge.
      RID at 15.
¶19         Further, the appellant argues that the Acting Chief provided inconsistent
      testimony regarding whether she told the appellant that the SLU Chairman had
      “veto power” in the selection process. RPFR File, Tab 1 at 13. The appellant
      compares the Acting Chief’s testimony that she did not recall referring
      specifically to the SLU Chairman during the March 24, 2011 meeting but did
      recall discussing the collaborative approach between the VAMC and SLU, HT at
      122, to her later testimony that she did not tell the appellant that the SLU
      Chairman had “veto power” over the selection decision, HT at 123, and argues
      that these statements are inconsistent with each other.     Again, we find these
      statements are not inconsistent. The implication of the term “veto power” is that
      the SLU Chairman could overrule the selection decision made by the agency.
      The Acting Chief testified consistently that the VAMC and SLU operated in a
      cooperative manner; SLU would provide input into the selection decision, but the
      ultimate selection decision would be made by the VAMC. HT at 122-23, 144.
      Her testimony was corroborated by several witnesses. HT at 15-17, 48, 84-88.
                                                                                      10

      As found by the administrative judge, the Acting Chief’s testimony is also
      corroborated by the appellant’s own understanding of the VAMC’s standard
      operating procedures for the Residency Program. RID at 12.
¶20         The appellant argues that the administrative judge required him to
      demonstrate bias on the part of the Acting Chief on an irrelevant subject and then
      faulted him for not proving it.     RPFR File, Tab 1 at 15.      Specifically, the
      administrative judge stated, “the appellant did not show bias on the part of the
      Acting Chief in regards to his job performance or qualifications to become the
      Chief of Neurology.” RID at 14. We find no error in the administrative judge’s
      analysis of bias.     Bias refers to a witness’s relationships, influences, and
      experiences which might consciously or unconsciously affect her ability to testify
      impartially.    Hillen, 35 M.S.P.R. at 459-60. The administrative judge did not
      require the appellant to show bias on the part of the Acting Chief in any
      particular area but appropriately examined circumstances or experiences between
      the appellant and the Acting Chief that might have reflected bias. RID at 14-15.
¶21         The appellant argues that the Acting Chief did not dispute the content of
      his “Improper Influence” memorandum until the appellant filed his appeal and did
      not initiate disciplinary action against the appellant for writing and distributing
      the memorandum, which are facts consistent with the appellant’s version of
      events.   RPFR File, Tab 1 at 9-10.     The appellant raised this same argument
      before the administrative judge. RAF, Tab 11 at 16; RID at 14. We find these
      facts immaterial in determining whether the Acting Chief told the appellant that
      the SLU Chairman would exercise “veto power” in the selection of the new Chief
      of Neurology.
¶22         We have considered all of the arguments the appellant raised on review
      regarding the credibility determinations made by the administrative judge. The
      appellant’s assertions constitute mere disagreement with the administrative
      judge’s credibility determinations and fact findings.   See Diggs, 114 M.S.P.R.
                                                                                              11

      464, ¶ 8.    We find no basis to disturb the administrative judge’s credibility
      determinations.
      The appellant has proven by preponderant evidence that he reasonably believed
      he was disclosing an abuse of authority.
¶23          Having resolved the credibility issues and determined that the Acting Chief
      did not tell the appellant that the SLU Chairman had “veto power” in the
      selection decision, the administrative judge concluded that the appellant failed to
      prove by preponderant evidence that he made a protected disclosure. RID at 16.
      For the following reasons, we REVERSE and find that the appellant reasonably
      believed he was disclosing an abuse of authority.
¶24          An individual making a disclosure may be protected from retaliation for
      whistleblowing based on his reasonable belief that his disclosure evidenced one
      or more of the categories of wrongdoing listed in 5 U.S.C. § 2302(b)(8), even
      when his belief is mistaken.             See Drake v. Agency for International
      Development, 543 F.3d 1377, 1382 (Fed. Cir. 2008). The test for determining
      whether an employee’s belief regarding the disclosed matter is reasonable is
      whether a disinterested observer with knowledge of the essential facts known to
      and readily ascertainable by the employee could reasonably conclude that the
      actions of the agency evidence the wrongdoing disclosed.                    Lachance v.
      White, 174 F.3d 1378, 1381 (Fed. Cir. 1999). We agree with the administrative
      judge’s finding that the Acting Chief did not explicitly tell the appellant that the
      SLU Chairman had “veto power” in the selection decision. 1 However, we find


      1
         The appellant argues that the administrative judge’s finding that the appellant’s
      disclosure was made in anticipation of litigation was “pure speculation” and improper.
      RPFR File, Tab 1 at 16. The appellant’s May 25, 2011 memorandum states, in part,
      that, if he were not selected for the Chief of Neurology position, he “intend[ed] to file a
      complaint with the Merit Systems Protection Board for the demotion from Chief of
      Neurology to mere staff neurologist.” IAF, Tab 29, Ex. R. The administrative judge’s
      findin g that the memorandum was written in anticipation of litigation is reasonable
      considering this language.
                                                                                       12

      that the appellant’s belief that the SLU Chairman would have a dispositive role in
      the selection was reasonable.
¶25         On March 24, 2011, the Acting Chief and the appellant discussed the AIB
      report on residents’ complaints concerning his conduct.         HT at 110.    Those
      complaints were brought to the attention of the VAMC by the SLU Chairman.
      IAF, Tab 31 at 6. The appellant was told that, based on the conclusions of the
      AIB, the agency would formulate a plan to help the appellant improve his
      communication skills and would review a sample of his consult requests to see if
      there were any irregularities.   HT at 115, 186-87.    In that same meeting, the
      Acting Chief explained to the appellant that the VAMC was going to undergo a
      reorganization that would include abolishing the appellant’s current position,
      advertising a new position that would perform many of his current duties, and
      that SLU, as the VAMC’s affiliate, would collaborate with the VAMC in the
      selection decision. HT at 115-23, 186-89. The discussion of the investigation,
      the reorganization, and the selection of the new Chief of Neurology in the same
      meeting could reasonably lead to the conclusion that these issues were
      interrelated.
¶26         It was reasonable for the appellant to conclude that SLU could veto the
      VAMC’s choice for the Chief of Neurology position, as the Director of the
      VAMC testified that an affiliate like SLU plays “a significant role” in selections,
      and that both the affiliate and the VAMC had to agree on the selectee.           HT
      at 84-86.       It is undisputed that the designation of a Residency Program
      Coordinator had to be made with the concurrence of the affiliate. IAF, Tab 1,
      Attachment 31-3 at 6. It is also undisputed that the Chief of Neurology position
      included the Residency Program Coordinator duties.          Id. at 34-38.   It seems
      reasonable to conclude that the VAMC would not select a Chief of Neurology
      without SLU’s concurrence. Although this may not be “veto power” per se, it
      could reasonably have been interpreted as the equivalent.
                                                                                            13

¶27         For the purposes of the Whistleblower Protection Act, an abuse of authority
      occurs when there is an arbitrary or capricious exercise of power by a federal
      official or employee that adversely affects the rights of any person or that results
      in personal gain or advantage to himself or to preferred other persons. Linder v.
      Department of Justice, 122 M.S.P.R. 14, ¶ 15 (2014).            The disclosure that a
      nonfederal employee exercised what was the equivalent to “veto power” over the
      selection of an individual for a federal position would constitute a protected
      disclosure of an abuse of authority. Mithen, 119 M.S.P.R. 215, ¶ 15. Therefore,
      we conclude that, although the appellant’s disclosure that the SLU Chairman
      would exercise “veto power” in the selection was not true, his belief that SLU
      would have a dispositive role in the selection of the Chief of Neurology was
      reasonable and therefore he established by preponderant evidence that he made a
      protected disclosure of an abuse of authority.
      The agency has proven by clear and convincing evidence that it would have
      detailed the appellant from his position in the absence of his protected
      disclosure. 2
¶28         The Board will order corrective action in an IRA appeal where an appellant
      shows by preponderant evidence that he engaged in whistleblowing and that the
      whistleblowing was a contributing factor 3 in the decision to take a personnel


      2
        The administrative judge, having found that the appellant did not make a protected
      disclosure, did not determine on remand whether the agency had proven by clear and
      convincin g evidence that it would have detailed the appellant absent his protected
      disclosure. However, the administrative judge’s first initial decision contains her
      analysis of this issue. The appellant has requested that the Board decide whether the
      agency met its burden rather than remanding the appeal to the administrative judge for
      further adjudication on this issue. RPFR File, Tab 1 at 18-19. We agree that the record
      has been sufficiently developed on this issue and that remand is unnecessary. The
      appellant requested that the Board consider his arguments from his first petition for
      review in rendering our decision. I d.
      3
        We find no basis to disturb the administrative judge’s determination that the appellant
      showed via the knowledge/timing test that his disclosure was a contributing factor in
      the decision to detail him. See ID at 10.
                                                                                      14

      action unless the agency shows by clear and convincing evidence that it would
      have taken the personnel action even absent the whistleblowing.       Wadhwa v.
      Department of Veterans Affairs, 110 M.S.P.R. 615, ¶ 14, aff’d, 353 F. App’x 435
      (Fed. Cir. 2009). Clear and convincing evidence is that measure or degree of
      proof that produces in the mind of the trier of fact a firm belief as to the
      allegations sought to be established; it is a higher standard than preponderant
      evidence. 5 C.F.R. § 1209.4(e). In determining whether the agency has shown
      by clear and convincing evidence that it would have taken the same personnel
      action in the absence of whistleblowing, the Board considers 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).
¶29         The agency has proven by clear and convincing evidence that it would have
      detailed the appellant from his position even absent any protected disclosure.
      The Director of the VAMC testified that she made the decision to detail the
      appellant when SLU stated that it was going to withdraw its residents from the
      VAMC’s Neurology Department. HT at 78-79, 89-90. A Senior Associate Dean
      of SLU confirmed that SLU was no longer going to rotate its residents through
      the Neurology Department because of problems with the learning environment.
      HT at 32-33. He also testified that it was not acceptable to SLU for the appellant
      to remain a supervisory medical staff member, nor was it acceptable to SLU for
      the appellant to make clinical assignments because of accusations that, in the
      past, he had given assignments to residents as punishment or in reprisal. HT at
      44. The Acting Chief testified that the decision to detail the appellant was in
      response to SLU’s decision to curtail significantly the rotation of residents
      through the Neurology Department.      HT at 145-46.    The record also contains
      contemporaneous correspondence between the VAMC and SLU corroborating this
                                                                                      15

      testimony. IAF, Tab 12 at 199-201, 210-12. SLU retracted its decision regarding
      the changes to the residency program after the appellant was detailed out of his
      position. HT at 80. We acknowledge that the testimony concerning the changes
      SLU intended to make to the residency program varies from the complete
      withdrawal of residents from the program, HT at 78-80, to a significant
      curtailment in the residents’ participation in the program, HT at 126, but those
      variations are explained by the varying degrees to which each of the witnesses
      was involved in the program.
¶30         The appellant argues that he had not been told the reason he was being
      detailed from his position until the hearing. Mithen v. Department of Veterans
      Affairs, MSPB Docket No. CH-1221-11-0498-W-1, Petition for Review (W-1
      PFR) File, Tab 1 at 34-35, 39-40. However, the appellant testified that, when he
      was first told about the detail, he asked the Acting Chief why he was being
      detailed and she responded that SLU had informed the VAMC that it would
      remove all of their residents unless the appellant was removed as the Program
      Manager for Neurology. HT at 193. We find that, in the aggregate, this is very
      strong evidence that the agency’s motive for detailing the appellant out of his
      position was to preserve the existing program with SLU for rotating residents in
      the VAMC Neurology Department.
¶31         The appellant argues that the AIB investigation did not identify any
      significant conduct or performance issues that would justify detailing him from
      his position. W-1 PFR File, Tab 1 at 37. We do not agree. Although the agency
      did not discipline the appellant as a result of the AIB investigation, the
      investigation noted several concerns that support the agency’s decision to detail
      the appellant from his position. Specifically, the investigation concludes that the
      appellant had poor communication, not only between himself and the residents,
      but also between the neurology staff and other providers, that the appellant had
      unreasonable expectations of some trainees in some instances, that poor customer
                                                                                           16

      service was a concern in some instances, and that the appellant’s unprofessional
      conduct was also a concern. IAF, Tab 33, Attachment D at 8-10.
¶32         The appellant also argues that the agency decided to detail him after
      already instructing him to have no interaction with the residents, and therefore
      the detail was unnecessary.     W-1 PFR File, Tab 1 at 38.            This presumes that
      SLU’s decision to withdraw the residents was based solely on the appellant’s
      direct interaction with the residents. However, the Senior Associate Dean from
      SLU testified that there were other concerns about the working environment
      being provided for the residents, including the work hours they were being
      assigned and fears of retribution. HT at 25. The email from VAMC to SLU at
      the time of the appellant’s detail includes an offer that he not only would have no
      contact with the residents but would have no involvement with anything related to
      the residents in an effort to persuade SLU to retain the residency program as it
      existed. IAF, Tab 12 at 199.
¶33         We find that the Acting Chief had little motive to retaliate against the
      appellant because SLU’s involvement in the selection identified in the appellant’s
      disclosure was already well known and was in fact set out in the agency’s own
      procedures. RID at 11-12. The involvement of SLU in the selection was required
      by SLU’s accrediting organization and is also stated in the VAMC’s Standard
      Operating Procedure for resident supervision. RID at 11-12. The appellant tried
      to explain the distinction between a selection requiring SLU’s concurrence, as
      described in the agency’s Standard Operating Procedure, and a selection that SLU
      could veto, as described in his protected disclosure, HT at 212-13, but we find
      this too fine a distinction to create a strong motive to retaliate.
¶34         In contrast, we find that the VAMC’s motive to maintain its affiliation
      arrangement with SLU was very strong. The Director of the VAMC testified that
      having the affiliation with SLU allowed the VAMC to provide the latest and
      greatest care for its patients. HT at 99. She testified that having students and
      residents rotate through the VAMC helped the agency to evolve and improve its
                                                                                          17

      services and develop its research program. HT at 100. She testified that the loss
      of residents would cause temporary delays in care for the patients while the
      VAMC recruited physicians to perform the duties that had been performed by the
      residents. HT at 102. She also testified about the financial impact on the VAMC
      that the loss of the residents would create. HT at 102-03.           The Acting Chief
      testified that a significant curtailment of the involvement of residents in the
      Neurology Department would have had a significant impact on patient care. HT
      at 126-27, 150-52. She testified that the mission of the Neurology Department
      was “intricately tied” to the residency program. HT at 133.
¶35         The       appellant   argues   that   the   Acting   Chief   exaggerated   and/or
      misrepresented these reasons for detailing him out of his position. W-1 PFR File,
      Tab 1 at 38-42.        The appellant believes that the agency has exaggerated its
      reasons for detailing him because the Acting Chief stated that SLU had a report
      from its accrediting organization attributing the creation of a hostile work
      environment to the appellant, but the documentation from the accrediting
      organization does not reference the appellant or a hostile work environment
      specifically.     Id. at 38-39.   The appellant’s summation of the Acting Chief’s
      statement is not accurate.           The Acting Chief stated that the accrediting
      organization’s report indicated that a hostile work environment existed and that
      SLU assessed that this was related to the appellant. IAF, Tab 12 at 213. This is
      consistent with the testimony of the Senior Associate Dean that no single
      document led to SLU’s conclusion that the appellant was contributing to a hostile
      environment for the residents, but the residents’ surveys, the letters from SLU’s
      accrediting organization, and the SLU Chairman’s investigation, considered
      together, led to that conclusion. HT at 26-31.
¶36         The appellant asserts that the agency’s failure to present evidence about
      whether it takes similar actions against employees who are not whistleblowers,
      but who are otherwise similarly situated, supports a finding that the agency failed
      to prove by clear and convincing evidence that it would have taken the same
                                                                                       18

      action against the appellant in the absence of his protected disclosure. W-1 PFR
      File, Tab 1 at 42. The Board does not view the Carr factors as discrete elements,
      each of which the agency must prove by clear and convincing evidence, but will
      weigh the factors together to determine whether the evidence is clear and
      convincing as a whole.        McCarthy v. International Boundary & Water
      Commission, 116 M.S.P.R. 594, ¶ 44 (2011), aff’d, 497 F. App’x 4 (Fed. Cir.
      2012), cert. denied, 134 S. Ct. 386 (2013). The Board has found under certain
      circumstances that an agency’s failure to present evidence showing it took similar
      action against employees who were not whistleblowers, but who were otherwise
      similar to an appellant, supports a finding that the agency failed to prove by clear
      and convincing evidence that it would have taken the same action against an
      appellant in the absence of the protected disclosure.      See, e.g., Chambers v.
      Department of the Interior, 116 M.S.P.R. 17, ¶ 70 (2011). However, those cases
      include other indicia of retaliation not found here. See, e.g., id., ¶ 71. Given the
      strength of the agency’s evidence regarding its reason for detailing the appellant
      and the very weak motive to retaliate, we find that the lack of evidence
      concerning similar employees who are not whistleblowers does not undermine the
      agency’s clear and convincing evidence supporting its reason for detailing the
      appellant.
¶37         The appellant argues that the agency treated him differently than similar
      employees who had not made protected disclosures. W-1 PFR File, Tab 1 at 43.
      Specifically, the Residency Program Coordinator duties were added to the Chief
      of Neurology position, but were not added to the other Program Manager
      positions, so that SLU was required to provide input in the selection of the Chief
      of Neurology. Id. The vacancy announcements for these positions corroborate
      the appellant’s argument. IAF, Tab 1, Attachment 31-3 at 23-38. However, the
      appellant testified that, for years, he simultaneously performed the duties
      identified in the vacancy announcement for the Chief of Neurology/Program
      Manager of Neurology position and the Residency Coordinator for Neurology.
                                                                                      19

      HT at 177, 187-88. He also testified that his predecessor had done the same. Id.
      The consolidation of these duties into one position thus formalized what had
      already been the practice at the VAMC.
¶38         Although we have found that the appellant made a protected disclosure, for
      the reasons discussed above, we find that the agency has proven by clear and
      convincing evidence that it would have detailed the appellant from his position
      even in the absence of this disclosure.     Therefore, the appellant’s request for
      corrective action is DENIED.

                                             ORDER
¶39         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the United
      States Court of Appeals for the Federal Circuit.
            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 the United States Court of Appeals for the Federal Circuit or any
      court of appeals of competent jurisdiction to review this final decision. The court
                                                                                 20

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.
         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 information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.    The Merit Systems Protection Board neither endorses the services
                                                                               21

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.
