Knowles v. DVA

• Court: Court of Appeals for the Federal Circuit
• Decided: January 10, 2020
• Docket: 19-1987
• Status: Unpublished

Opinion

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

TONYA KNOWLES, Petitioner

v.

DEPARTMENT OF VETERANS AFFAIRS, Respondent ______________________

2019-1987 ______________________

Petition for review of the Merit Systems Protection Board in No. AT-1221-19-0047-W-1. ______________________

Decided: January 10, 2020 ______________________

TONYA KNOWLES, Largo, FL, pro se.

KELLY A. KRYSTYNIAK, Commercial Litigation Branch, Civil Division, United States Department of Justice, Wash- ington, DC, for respondent. Also represented by JOSEPH H. HUNT, REGINALD THOMAS BLADES, JR., ROBERT EDWARD KIRSCHMAN, JR. ______________________

Before DYK, TARANTO, and CHEN, Circuit Judges. 2 KNOWLES v. DVA

PER CURIAM. Pro se appellant Tonya Knowles appeals from a deci- sion of the Merit Systems Protection Board (Board) deny- ing Ms. Knowles’s request for corrective action under the Whistleblower Protection Act (WPA). We affirm. BACKGROUND Ms. Knowles is currently employed by the Bay Pines Veterans Affairs Health Care System, a veterans’ hospital operated by the Department of Veterans Affairs (agency) in Bay Pines, Florida. From 2016 to 2018, Ms. Knowles was subject to several personnel actions she believes were in retaliation for her protected disclosure in violation of the WPA. In 2017, Ms. Knowles filed a complaint with the Of- fice of Special Counsel (OSC) alleging that Bay Pines em- ployees were not properly storing patients’ medical records and that she had been detailed, suspended, discriminated against, experienced a hostile work environment and re- ceived a proposed removal as reprisal for the allegation re- garding the improper storage of medical records. Each personnel action is discussed below. On December 30, 2016, the agency proposed to suspend Ms. Knowles from duty and pay for ten days based on three charges: (1) failure to safeguard confidential information, (2) negligence causing waste and delay, and (3) disruptive behavior. After Ms. Knowles gave oral and written replies, the agency’s deciding official issued a final decision on March 10, 2017 sustaining the charges and mitigating the proposed ten-day suspension to seven days. On January 10, 2017, the agency issued a memoran- dum stating that Ms. Knowles left protected health infor- mation and personally identifiable information concerning several patients unattended and unsecured on her desk. On February 7, 2017, the agency issued another memoran- dum finding that Ms. Knowles committed a privacy viola- tion by leaving a pre-complaint form with her own name, KNOWLES v. DVA 3

address, and social security number face-up in a tray by her work station. On March 26, 2018, the agency again proposed to sus- pend Ms. Knowles from duty and pay, this time for fourteen days based on two charges: (1) failure to follow instructions and (2) disruptive behavior. After Ms. Knowles gave oral and written replies, the agency’s deciding official issued a final decision on April 20, 2018, sustaining the charges and the proposed fourteen-day suspension. On June 29, 2018, the agency proposed to remove Ms. Knowles from federal employment based on two charges: (1) failure to cooperate and (2) failure to safeguard confi- dential information. To date, the agency has not reached a decision regarding Ms. Knowles’s proposed removal. The OSC closed its inquiry as to whether the agency was improperly storing patients records on September 29, 2017 and determined that the agency had begun safe- guarding documents in compliance with agency regula- tions. The OSC closed its inquiry into Ms. Knowles’s claim of whistleblower retaliation on October 18, 2018. Ms. Knowles then filed an individual right of action with the Board on October 19, 2018, alleging that the agency’s per- sonnel actions against her violated the WPA because they were in retaliation for making a protected disclosure. Based on the testimony and evidence presented, the ad- ministrative judge found that Ms. Knowles had made at least one protected disclosure and had established that her disclosure was a contributing factor in the agency’s person- nel actions. But the administrative judge also found that the agency would have taken the same disciplinary actions notwithstanding Ms. Knowles’s disclosure and therefore that corrective action was not warranted. The administra- tive judge’s initial decision became the final decision of the Board. Ms. Knowles timely appealed to this court. We have jurisdiction under 28 U.S.C. § 1295(a)(9). DISCUSSION 4 KNOWLES v. DVA

Our standard of review is limited and requires this court to affirm a decision of the Board unless it is “(1) arbi- trary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (2) obtained without proce- dures required by law, rule, or regulation having been fol- lowed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). Substantial evidence is “relevant evi- dence” that “a reasonable mind might accept as adequate to support a conclusion.” Ingram v. Dep’t of the Army, 623 Fed. Appx. 1000, 1003 (Fed. Cir. 2015). The WPA prohibits an agency from taking a personnel action because of any whistleblowing “disclosure” or activ- ity. 5 U.S.C. § 2302(b)(8)–(9). An employee who believes he has been subjected to illegal retaliation must prove by a preponderance of the evidence that he made a protected disclosure that contributed to the agency’s action against him. See Whitmore v. Dep’t of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012). “If the employee establishes this prima facie case of reprisal for whistleblowing, the burden of per- suasion shifts to the agency to show by clear and convinc- ing evidence that it would have taken ‘the same personnel action in the absence of such disclosure.’” Id. at 1364 (quot- ing 5 U.S.C. § 1221(e)). If the agency does not show by clear and convincing evidence that it would have taken the same action absent the whistleblowing, the agency’s personnel action must be set aside. See Siler v. Envtl. Prot. Agency, 908 F.3d 1291, 1298 (Fed. Cir. 2018). In Ms. Knowles’s case, the government does not dis- pute that agency officials issued personnel actions against her. The parties likewise agree that Ms. Knowles made protected disclosures. The question here is whether the Board properly found that the agency established “by clear and convincing evidence,” that for each of the personnel ac- tions taken between 2016 and 2018, “it would have taken the same personnel action in the absence of [a protected] disclosure.” 5 U.S.C. § 1221(e)(2). This Court has outlined factors to consider to answer that question. Carr v. Soc. KNOWLES v. DVA 5

Sec. Amin.,185 F.3d 1318, 1323 (Fed. Cir. 1999). Under Carr, the Board considers (1) “the strength of the agency’s evidence in support of its personnel action;” (2) “the exist- ence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision;” and (3) “any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated.” Id. Here, substantial evi- dence supports the Board’s findings with respect to the Carr factors and its ultimate determination that the agency would have implemented the personnel actions it did, or proposed to, even if Ms. Knowles had not made a protected disclosure. A. MARCH 2017: SEVEN DAY SUSPENSION In December 2016, the agency proposed a ten-day sus- pension, which was mitigated to a seven-day suspension in March 2017. The charges against Ms. Knowles included: (1) failure to safeguard confidential information, (2) negli- gence causing waste and delay, and (3) disruptive behavior. Charge one was supported by four specifications, all of which detailed instances in which Ms. Knowles mishan- dled or lost confidential information. Charge two was sup- ported by three specifications all of which relate to the free credit monitoring services the agency had to provide to vet- erans due to Ms. Knowles’s mishandling of confidential in- formation. Charge three was supported by three specifications, all of which discussed Ms. Knowles’s disrup- tive behavior during work, including Ms. Knowles’s lan- guage and actions in front of veterans. With respect to the first Carr factor, substantial evi- dence supports the Board’s findings that the agency met its burden of proving charges one and two. J.A. 11–12. For charge one, the record contained a handwritten note from a veteran stating that while he was sitting with Ms. Knowles and she was looking for his patient information, another veteran returned it to him. J.A. 11. Additionally, 6 KNOWLES v. DVA

this mishandling of information was also documented in a memorandum from 2016. Id. For charge two, the Board noted that Ms. Knowles did not deny that her actions re- quired the agency to bear the expense of credit monitoring for veterans whose confidential information she had mis- placed. J.A. 12. The Board declined to consider charge three, because the agency provided little supporting testi- mony and evidence. Id. The Board reasonably found the evidence in supporting charges one and two sufficient to sustain those charges and justify the imposed seven-day suspension. Id. With respect to the second Carr factor, the Board properly found no retaliatory motive by the three agency officials involved in recommending, proposing, and decid- ing Ms. Knowles’s suspension. J.A. 12–14. Ms. Knowles argues that for all three agency officials her “criticisms re- flected on both of their capacities as management officials and employees, which is sufficient to establish a substan- tial retaliatory motive.” The Board is in the best position to assess the credibility of witnesses. Haebe v. DOJ, 288 F.3d 1288, 1300 (Fed. Cir. 2002). We find that the Board appropriately made credibility determinations as to each testifying official and its “find[ing of] no evidence in the rec- ord” for retaliatory motivation for these officials supported by substantial evidence. J.A. 13, 14. With respect to the third Carr factor, the Board found “neither party presented meaningful evidence regarding the extent to which the agency may take similar actions against employees who did not engage in protected activity but who are otherwise similarly situated to the appellant.” J.A. 14. Thus, the Board concluded that “there is no rele- vant comparator evidence.” Id. Ms. Knowles argues that the agency did not take similar actions against a different whistleblower employee, Dr. Roula Baroudi, who was ac- cused of photographing patient records. Dr. Baroudi, how- ever, was not a similarly situated non-whistleblower, but rather an allegedly similarly situated whistleblower. KNOWLES v. DVA 7

Therefore, the Board appropriately did not consider this in- formation. Siler v. Envtl. Prot. Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018) (“Though the agency’s treatment of other whistleblowers may illuminate any motive to retaliate un- der Carr factor 2, it does not show the agency’s treatment of non-whistleblower employees accused of similar conduct, the precise inquiry considered under Carr factor 3.”). Based on the record, substantial evidence supports the Board’s decision that the agency properly established by clear and convincing evidence that it would have taken the same personnel action even absent Ms. Knowles’s pro- tected disclosure. B. 2017 SECURITY VIOLATIONS In 2017, Ms. Knowles was informed that she had vio- lated agency rules related to safeguarding printed and elec- tronic individually identifiable privacy-protected information. The agency issued two memorandums, the first from the Information Security Officer (ISO) and the second from the Assistant Chief of Health Information Management (ACHIM). As to the first Carr factor, the Board found strong evi- dence supporting the violations, and substantial evidence supports its finding. J.A. 15, 17. The first memorandum from the agency’s ISO on January 10, 2017, detailed that Ms. Knowles had left patient records unattended or unse- cured on her desk. J.A. 14–15. The Board found that Ms. Knowles did not deny leaving the information unattended and unsecured on her desk. J.A. 15. The second memoran- dum from February 7, 2017 indicated Ms. Knowles left a pre-complaint form with Ms. Knowles’s full name, address, and social security number face-up in the top tray at a work station. J.A. 16. Again, Ms. Knowles did not deny the al- legation. J.A. 17. As to the second Carr factor, substantial evidence sup- ports the Board’s finding that no evidence existed on the part of the two agency officials to retaliate against Ms. 8 KNOWLES v. DVA

Knowles. The ISO was unaware of Ms. Knowles’s protected disclosure when it issued the January 2017 memorandum. J.A. 15. Nor was there any evidence in the record as to whether the ACHIM, the author of the second memoran- dum, knew about Ms. Knowles’s protected disclosure. J.A. 17. Neither Ms. Knowles nor the government presented ev- idence as to a similarly situated non-whistleblower. There- fore, the Board was free to find the personnel action lawful under Carr factors one and two. Sutton v. Dep’t of Justice, 94 M.S.P.R 4, 12–13 (2003) (finding that whistleblower was lawfully removed based on the evidence under Carr factors one and two, where the record contained no evidence of ac- tion taken against similarly situated non-whistleblowers); see also McCarthy v. Int’l Boundary & Water Comm.: U.S. & Mexico, 116 M.S.P.R. 594, 626 (2011) (concluding that “the third Carr factor is not a significant factor for the Board’s analysis in the instant appeal” in the absence of evidence showing that the agency took similar actions against similarly situated non-whistleblowers). 1 Thus, the Board did not err in holding that the agency properly es- tablished by clear and convincing evidence that it would have taken the same personnel action even absent Ms. Knowles’s protected disclosure. C. MARCH 2018: FOURTEEN DAY SUSPENSION In March 2018, the agency proposed to suspend Ms. Knowles for fourteen days without pay based on two charges, “failure to follow instructions” and “disruptive be- havior.” With respect to the first Carr factor, substantial evidence supports the Board’s finding that the record evi- dence supports the validity of the charges. J.A. 19. The

1 To the extent that Ms. Knowles is presenting the same evidence with respect to Dr. Baroudi, see the expla- nation in part A, supra. KNOWLES v. DVA 9

record evidence contained the March 26, 2018 suspension proposal with handwritten notes by Ms. Knowles. Id. None of Ms. Knowles’s notes denied the allegations, nor did Ms. Knowles offer testimony about the underlying conduct, as to either charge. Id. Moreover, as to the disruptive be- havior charge, the record contained the email sent by Ms. Knowles to Ms. Royer, accusing Ms. Royer of altering an email originally drafted by Ms. Knowles. J.A. 18. Addi- tionally, the Board properly credited Ms. Royer’s testimony that she feared Ms. Knowles would damage her career and she therefore raised the allegation with her supervisor. J.A. 21. As to the second Carr factor, the Board reasonably found no evidence that the proposing official or the deciding official suffered negative consequences as a result of Ms. Knowles’s protected disclosure nor other evidence suggest- ing the disclosure motivated their decisions. J.A. 21–22. Ms. Knowles argues that the proposing officer was placed on a “Performance Improvement Plan” (Plan) that “focused on areas that the Business Office Service Leadership Team was underperforming in.” To the extent Ms. Knowles ar- gues that participation in the Plan was a negative conse- quence of her disclosures, there is no evidence in the record supporting this claim. And, as explained above, we find that the Board made appropriate credibility determina- tions in finding no evidence of a retaliatory motive. With respect to the third Carr factor, we agree with the Board that neither Ms. Knowles nor the government pre- sented evidence as to a similarly situated non-whistle- blower and therefore the Board appropriately only considered Carr factors one and two. 2 Thus, the Board did not err in holding that the agency properly established by

2 To the extent that Ms. Knowles is presenting the same evidence with respect to Dr. Baroudi, see the expla- nation in part A, supra. 10 KNOWLES v. DVA

clear and convincing evidence that it would have taken the same personnel action even absent Ms. Knowles’s pro- tected disclosure. D. JUNE 2018: PROPOSED REMOVAL In June 2018, the agency proposed to remove Ms. Knowles from federal employment based on two charges. The first charge was “failure to cooperate” and was sup- ported by two specifications which both relate to Ms. Knowles’s failure to address questions and issues from the agency’s Privacy Office. The second charge was “failure to safeguard confidential information.” The second charge was supported by eleven specifications alleging that Ms. Knowles sent confidential veteran information to her per- sonal email address. With respect to the first Carr factor, the Board’s find- ings of strong evidence to support both charges are amply supported by the evidence. The record contains a copy of the Privacy Office’s confirmation memorandum, listing all of the steps Ms. Knowles should take with respect to the confidential information she sent to her personal email ad- dress, which Ms. Knowles did not sign. J.A. 127. The rec- ord in front of the Board also contained copies of several email messages containing the confidential information Ms. Knowles sent to her personal email account. J.A. 27. Ms. Knowles did not deny the facts alleged in the specifica- tions. Id. As to the second Carr factor, the Board found no evi- dence in the record that the officer proposing the removal suffered negative consequences as a result of Ms. Knowles’s disclosure nor any other evidence suggesting that such a disclosure motivated her to issue the notice of removal. J.A. 27–28. For the reasons provided earlier, we find that the Board made appropriate credibility determinations and substantial evidence supports the Board’s decision. Be- cause Ms. Knowles’s arguments and the Board’s finding as to the third Carr factor are no different than what was KNOWLES v. DVA 11

presented for the other personnel actions discussed above, we affirm the Board’s findings here as well. We have considered Ms. Knowles’s remaining argu- ments and find them unpersuasive. CONCLUSION For the foregoing reasons, the decision of the Board is affirmed. AFFIRMED COSTS No Costs.