                              UNITED STATES OF AMERICA
                           MERIT SYSTEMS PROTECTION BOARD


     ILLYA ERWIN,                                   DOCKET NUMBER
                            Appellant,              SF-1221-15-0418-W-1

                    v.

     DEPARTMENT OF THE ARMY,                        DATE: September 7, 2016
                 Agency.




           Charles H. Brower, Esquire, and Michael Healy, Esquire, Honolulu,
             Hawaii, for the appellant.

           Dawn Dobbs and Steven J. Shim, Schofield Barracks, Hawaii, for
             the agency.


                                            BEFORE

                                Susan Tsui Grundmann, Chairman
                                   Mark A. Robbins, Member
                          Chairman Grundmann issues a separate opinion.


                                            ORDER
¶1         The appellant has filed a petition for review, and the agency has filed a
     cross petition for review of the initial decision, which denied the appellant’s
     request for corrective action under 5 U.S.C. § 1221. The two Board members
     cannot agree on the disposition of the petition for review. Therefore, the initial
     decision now becomes the final decision of the Merit Systems Protection Board in
     this appeal.        Title 5 of the Code of Federal Regulations, section 1200.3(b)
     (5 C.F.R. § 1200.3(b)). This decision shall not be considered as precedent by the
     Board in any other case. 5 C.F.R. § 1200.3(d).
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                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of the final decision by the U.S. 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 review of this final decision by the U.S. 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 U.S. 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 U.S. 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 U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode/htm. Additional information about
the U.S. Court of Appeals for the Federal Circuit is available at the court’s
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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 the link below:
      http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      If you are interested in securing pro bono representation for your appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
          SEPARATE OPINION OF CHAIRMAN SUSAN TSUI GRUNDMANN

                                              in

                          Illya Erwin v. Department of the Army

                         MSPB Docket No. SF-1221-15-0418-W-1

¶1         For the reasons discussed below, I would grant the appellant’s petition for
     review of the initial decision in this appeal and grant his request for corrective
     action under 5 U.S.C. § 1221.
¶2         I agree with the administrative judge’s finding that the appellant made
     protected disclosures when he informed a fellow nurse and a superior that he was
     improperly assigned charge nurse duties when he had not been properly oriented
     as a charge nurse, because the appellant reasonably, albeit incorrectly, believed
     that his floating and charge nurse assignments were in violation of the Hawaii
     Nursing Practice Act.       I also believe that the appellant’s disclosure in an
     October 27, 2013 email to the responsible agency officials concerning allegedly
     improper treatment of a patient on October 26 was protected as a disclosure of a
     substantial and specific danger to public health or safety.        Moreover, the
     appellant established that these disclosures were a contributing factor in his
     probationary termination.
¶3         I believe, however, that the agency did not prove by clear and convincing
     evidence that it would have terminated the appellant in the absence of his
     protected disclosures. In determining whether an agency has shown by clear and
     convincing evidence that it would have taken the same personnel action in the
     absence of whistleblowing, 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.
                                                                                          2

     1999).     Our reviewing court has clarified that “[e]vidence only clearly and
     convincingly supports a conclusion when it does so in the aggregate considering
     all the pertinent evidence in the record, and despite the evidence that fairly
     detracts from that conclusion.”       Whitmore v. Department of Labor, 680 F.3d
     1353, 1368 (Fed. Cir. 2012).
¶4            I agree with the administrative judge that the third Carr factor is neutral in
     this case. I also agree with his finding that the responsible agency officials had
     only a moderate retaliatory motive with respect to the appellant’s disclosures
     concerning floating and charge nurse assignments. However, I believe that these
     officials may have had a significant retaliatory motive with respect to the
     appellant concerning his disclosure of substandard care of an Intensive Care Unit
     patient on October 26, 2013. Although neither official was directly implicated in
     the disclosure, it nonetheless reflected on both officials in their capacity as
     employees      and    managers.      See    Chavez    v.   Department    of   Veterans
     Affairs, 120 M.S.P.R. 285, ¶ 33 (2013). Thus, the second Carr factor weighs to
     some degree in the appellant’s favor.
¶5            In evaluating the first Carr factor, i.e., the strength of the reasons in
     support of the agency’s action, the administrative judge found that disciplinary
     action was warranted based on the appellant’s failure to comply with Composite
     Health Care Systems (CHCS) access requirements and his failure to report for
     duty while on a scheduled on-call status.        However, although the responsible
     officials cited these issues in their request for disciplinary action, Initial Appeal
     File, Tab 5 at 20‑26, the agency did not choose to take the action on those
     grounds.     Instead, the termination letter that was ultimately prepared by the
     Civilian Personnel Advisory Center and signed by one of the responsible officials
     explicitly states that the basis for the action was the appellant’s alleged “lack of
     candor” in his September 17, 2013 statement concerning his lack of CHCS
     access.     Accordingly, in considering the first Carr factor, it is appropriate to
                                                                                     3

     consider the strength of the evidence in support of the stated basis for the
     agency’s action, i.e., the lack of candor charge.
¶6           To prove lack of candor, the agency must establish the following elements:
     (1) that the employee gave incorrect or incomplete information; and (2) that he
     did so knowingly. Fargnoli v. Department of Commerce, 123 M.S.P.R. 330, ¶ 17
     (2016). Here, the agency has provided no evidence whatsoever that the appellant
     knowingly gave incorrect or incomplete information when he stated that he did
     not have access to CHCS. The appellant’s statement was not a misrepresentation,
     as it is undisputed that the appellant did not in fact have access to CHCS at that
     time.    Nor has the agency identified any additional information he may have
     improperly withheld.     The stated basis of the agency’s action is thus entirely
     without merit.
¶7           Without evidence to support its action, the agency cannot meet its burden
     of showing by clear and convincing evidence that it would have taken the action
     in the absence of the appellant’s protected disclosures.       See Armstrong v.
     Department of Justice, 107 M.S.P.R. 375, ¶ 32 n.10 (2007).         Accordingly, I
     would find that the appellant is therefore entitled to corrective action
     under 5 U.S.C. § 1221(e).



     ______________________________
     Susan Tsui Grundmann
     Chairman
