Kuriakose v. DVA

• Court: Court of Appeals for the Federal Circuit
• Decided: January 17, 2020
• Docket: 19-1274
• Status: Unpublished

Opinion

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit ______________________

JEAN KURIAKOSE, Petitioner

v.

DEPARTMENT OF VETERANS AFFAIRS, Respondent ______________________

2019-1274 ______________________

Petition for review of the Merit Systems Protection Board in No. CH-1221-17-0287-W-2. ______________________

Decided: January 17, 2020 ______________________

ARIEL E. SOLOMON, Solomon Law Firm, PLLC, Albany, NY, for petitioner.

NATHANAEL YALE, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washing- ton, DC for respondent. Also represented by JOSEPH H. HUNT, ALLISON KIDD-MILLER, ROBERT EDWARD KIRSCHMAN, JR. ______________________

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

TARANTO, Circuit Judge. This appeal comes to us from the Merit Systems Pro- tection Board. Appellant Jean Kuriakose worked as a part- time radiologist at the Department of Veterans Affairs’ Health Care System in Ann Arbor, Michigan. According to her allegations at the Board, on December 6, 2013, she was sexually assaulted by a co-worker—who, the Board subse- quently found, was placed on leave by the VA as soon as the incident was reported and whose employment was ter- minated shortly thereafter. In December 2014, Dr. Kuria- kose resigned from her position at the VA. In 2017, after exhausting administrative remedies, she sought corrective action from the Board under the Whistleblower Protection Enhancement Act, 5 U.S.C. § 2303 et seq. (WPA), based on allegations that she had made certain protected disclosures to her supervisors and been subjected to several adverse personnel actions by the VA as a result. The Board rejected Dr. Kuriakose’s request for corrective action, finding that Dr. Kuriakose had made one protected disclosure that re- sulted in an adverse personnel action, but that the VA proved that it would have taken that personnel action re- gardless of Dr. Kuriakose’s protected disclosure. Because we find no reversible error, we affirm. I A Dr. Kuriakose began working at the VA as a radiologist in 2010. The Ann Arbor VA Health Care System has an academic affiliation with the University of Michigan Med- ical School, and the VA’s radiologists, including Dr. Kuria- kose, are also on staff at the University. Dr. Kuriakose’s immediate VA supervisor was Dr. Venkataramu Krishna- murthy, and her immediate University supervisor was Dr. Ella Kazerooni. Before the Board, Dr. Kuriakose alleged that, on De- cember 6, 2013, at the VA facility, she was the victim of a KURIAKOSE v. DVA 3

sexual attack—groping and exposure—by a male radiolo- gist at the facility. J.A. 3. About a week later, Dr. Kuria- kose told a radiology technician that the co-worker radiologist had exposed himself to her. Id. Independently, but contemporaneously, the VA questioned him about his treatment of women. Id. at 4. Around January 10, 2014, Dr. Kuriakose told her University supervisor, Dr. Kazerooni, about the December 6th incident. Id. at 4. Dr. Kazerooni immediately contacted both the police and Dr. Kuriakose’s VA supervisor, Dr. Krishnamurthy; and the same day, the police began an investigation, Dr. Kuriakose filed a criminal complaint, and the VA placed the co-worker radiologist on administrative leave. Id. at 4–5. The VA conducted an investigation, in which it received denials from the co-worker radiologist as well as other information about his behavior toward women. Id. On January 21, 2014, the VA terminated his appointment, effective Febru- ary 4, 2014. Id. at 6. In the period just discussed, VA supervisor Dr. Krish- namurthy had been attempting to resolve Dr. Kuriakose’s ongoing timekeeping issues, including her refusal to re- quest leave for time she took off for vacation. See J.A. 1493–94. Around that time, Dr. Kuriakose has also al- leged, she applied to be a member of the VA’s Peer Review Committee and what Dr. Kuriakose refers to as the “Lung Cancer Committee.” On January 13, 2014, Dr. Krishna- murthy offered to move Dr. Kuriakose’s workstation away from the workstation of the co-worker she had just alleged had assaulted her the month before. Dr. Kuriakose ex- pressed concern that moving her work station might ham- per the assault investigation. Dr. Krishnamurthy assured Dr. Kuriakose that moving workstations would not affect the investigation and recommended that she move “if that would make the environment better.” J.A. 1656. Dr. Ku- riakose decided to remain at her then-current workstation. J.A. 143; see J.A. 475. 4 KURIAKOSE v. DVA

On February 26, 2014, Dr. Kuriakose met with her sec- ond-level supervisor at the VA, Dr. Eric Young. During the meeting, she discussed the assault as well as her concerns regarding how her direct supervisor, Dr. Krishnamurthy, was assigning codes to medical procedures he performed. Dr. Young informed Dr. Kuriakose that he would send a memorandum of their conversation to Dr. Krishnamurthy, and he did so on March 5, 2014. J.A. 1639. In May 2014, the University sought to increase the pro- fessional development time allotted to its physicians for re- search and other scholarly activities. The University asked the VA to permit some physicians, including Dr. Kuriakose, to use up to twenty percent of their VA tour for professional development. The VA generally permitted use of only about ten percent of a physician’s VA tour for professional development. Given the apparent discrepancy, the VA, through Drs. Krishnamurthy and Young, decided that the best practice was to implement a formal “Rules of Engage- ment” to set standards for professional development time and to clarify the relationship between the University and the VA’s radiology department. J.A. 122–23. Dr. Krishna- murthy placed Dr. Kuriakose’s professional development time on hold until the Rules of Engagement were officially implemented. On August 11, 2014, Dr. Krishnamurthy ap- proved Dr. Kuriakose’s request to use professional develop- ment time to participate in a COPDGene study. On September 12, 2014, Dr. Kuriakose told Dr. Young that another VA co-worker, Dr. David Jamadar, had made inappropriate comments to her during an argument. She alleges that she later overheard Dr. Jamadar making de- rogatory comments about her on October 2, 2014. On October 10, 2014, Dr. Kuriakose asked Dr. Krish- namurthy if she could attend a training session related to the COPDGene study. Dr. Kazerooni also needed to ap- prove Dr. Kuriakose’s participation in the session. Accord- ing to an email exchange between Drs. Krishnamurthy and KURIAKOSE v. DVA 5

Kazerooni, Dr. Kuriakose had to find other doctors to cover the shifts that she would miss while attending the session; and Dr. Kazerooni stated that she would withhold her offi- cial approval until after Dr. Kuriakose had obtained proper coverage for her shifts. J.A. 30–31; J.A. 1610. Dr. Kuria- kose asked Dr. Krishnamurthy for permission to move one patient to another time and close off the patient’s previous time slot so that she could care for the patient before leav- ing for her training and so that no patients would be sched- uled while she was at the training session, but Dr. Krishnamurthy did not do so. J.A. 508. On October 14, 2014, four staff radiologists reported to Dr. Young that Dr. Kuriakose was causing an uncomforta- ble environment, noting that they tried to limit communi- cation and interactions with her. Dr. Young began investigating the working environment of the radiology de- partment. When radiology staff members were asked if they had seen or experienced any hostility in the work- place, Dr. Kuriakose’s name was the only one mentioned several times. On November 28, 2014, Dr. Kuriakose sent Dr. Young an email that included a notice of resignation. Dr. Kuria- kose sent a formal letter of resignation to both the VA and the University on December 10, 2014. Her resignations be- came effective on December 28, 2014. Dr. Kuriakose’s hus- band began a new out-of-state job on January 5, 2015, and Dr. Kuriakose joined him out of state after her resignations became effective. B On January 23, 2015, Dr. Kuriakose filed a complaint with the Office of Special Counsel (OSC) pursuant to 5 U.S.C. § 1214(a), seeking corrective action for alleged pro- hibited personnel practices. J.A. 1760–70. Specifically, Dr. Kuriakose alleged that from October 2012 to February 2014, she had made numerous protected disclosures indi- cating that VA doctors were abusing their authority, 6 KURIAKOSE v. DVA

committing gross mismanagement, violating laws or rules, and creating substantial and specific dangers to public health and safety. J.A. 1761–64. She also alleged that, as a result of her protected disclosures, the VA subjected her to certain retaliatory adverse personnel actions, namely: (1) a letter from Dr. Krishnamurthy to Dr. Kazerooni dis- paraging her; (2) denial of membership on VA committees necessary for promotion and advancement; (3) a reduction in professional development time; (4) interference with her promotion to Assistant Professor at the University; (5) iso- lation from other VA staff; and (6) denial of patient cover- age needed to enable her to attend the COPDGene study training session. J.A. 1765–66. Dr. Kuriakose later added an additional allegation of constructive termination result- ing from a hostile work environment. See J.A. 1727. About two years later, on January 6, 2017, OSC pro- vided Dr. Kuriakose with a letter containing proposed fac- tual and legal determinations pursuant to 5 U.S.C. § 1213(c). J.A. 1726–27. Dr. Kuriakose did not respond to OSC’s letter. See J.A. 1728. On January 20, 2017, OSC provided Dr. Kuriakose with a closure letter, terminated its inquiry, and notified Dr. Kuriakose that she had ex- hausted her claims before OSC and that she had a right to file an individual right of action with the Board to request corrective action pursuant to 5 U.S.C. §§ 1214(a)(3) and 1221. J.A. 1728; J.A. 1730–31; see 5 C.F.R. § 1209.5. C Dr. Kuriakose timely filed an appeal with the Board. On August 31, 2017, Administrative Judge Chase found that Dr. Kuriakose was entitled to a hearing. J.A. 1692. On June 13, 2018, Administrative Judge Puglia held a pre- hearing conference at which she ruled that the Board lacked jurisdiction over Dr. Kuriakose’s constructive-ter- mination claim. See J.A. 1222. Administrative Judge Pu- glia also denied Dr. Kuriakose’s request to call Drs. Kazerooni, Pernicano, and Kaza as witnesses, finding their KURIAKOSE v. DVA 7

proposed testimony “immaterial.” See J.A. 1224. The rul- ings were set out in a prehearing order dated June 15, 2018. J.A. 1221–24. Dr. Kuriakose filed a motion for certification of inter- locutory appeal to the Board on June 21, 2018, seeking con- firmation of Board jurisdiction over her constructive- termination claim. J.A. 1217–19. The next day, Dr. Kuria- kose filed an objection to the prehearing order. J.A. 1201– 03. On June 22, 2018, the administrative judge denied the motion and clarified that the Board did in fact have juris- diction to hear Dr. Kuriakose’s constructive-termination claim, as the claim had been included in OSC’s closure let- ter to Dr. Kuriakose. J.A. 1213–14. The administrative judge held a two-day hearing on June 25 and 26, 2018. During the hearing, Administrative Judge Puglia stated that she would hear evidence of a hos- tile work environment only to adjudicate Dr. Kuriakose’s constructive-termination claim, not as its own separate claim. J.A. 285–87. Administrative Judge Puglia also ex- cluded testimony regarding Dr. Krishnamurthy’s character and other employees’ complaints about Dr. Krishna- murthy. E.g., J.A. 239–41; J.A. 278–81. The administrative judge issued an initial decision on August 27, 2018, J.A. 1–39, which became the final decision of the Board on October 1, 2018, and for that reason we will hereafter generally refer to the administrative judge as the Board. The Board found that Dr. Kuriakose had made a protected disclosure to Dr. Young during their February 26, 2014 meeting, that the subsequent reduction in profes- sional development time was an adverse personnel action, and that the protected disclosure was a contributing factor to the reduction in professional development time (because of the knowledge/timing test). J.A. 27–28; J.A. 31–32; J.A. 36. The Board found, however, that the VA had proven by clear and convincing evidence that it would have reduced Dr. Kuriakose’s professional development time regardless 8 KURIAKOSE v. DVA

of her protected disclosure because the reduced profes- sional development time applied to all VA physicians. J.A. 37–39. The Board found that Dr. Kuriakose’s remaining al- leged personnel actions all failed even before the stage at which it fell to the VA to prove that it would have taken the action regardless of the alleged protected disclosure. In particular, the Board found that Dr. Kuriakose was unable to attend the COPDGene study training session because of her own failure to obtain patient-care coverage, not be- cause of a VA personnel action. J.A. 30–31. The Board also found that the alleged interference with Dr. Kuriakose’s promotion at the University is not a covered personnel ac- tion under the WPA. J.A. 31. The Board further found that Dr. Kuriakose failed to “establish that she requested to join any VA committees from December 2013 [the date of her alleged attack predating her protected disclosure] to De- cember 2014 [the date of her formal resignation].” J.A. 32. Finally, the Board found that Dr. Kuriakose had not proven her constructive-termination claim because she had failed to rebut the presumption that her resignation was voluntary. J.A. 34–36. The Board recognized Dr. Kuria- kose’s sense of isolation from and difficulty communicating with her co-workers and her resulting concerns for patient safety, but it also found that she had received a “satisfac- tory” performance evaluation before her resignation and was considered a valuable member of the radiology depart- ment. J.A. 35–36. The Board also acknowledged Dr. Ku- riakose’s allegation that Dr. Jamadar had yelled at her during an argument in September 2014. J.A. 35. The Board observed, as well, that Dr. Kuriakose’s resignation did not become effective until one month after her initial notice of resignation, that her husband had recently ac- cepted a new job in another state, and that she had simul- taneously resigned from the University even though she did not find the work environment at the University intol- erable. J.A. 35. KURIAKOSE v. DVA 9

Dr. Kuriakose timely appealed to this court. We have jurisdiction under 5 U.S.C. § 7703 and 28 U.S.C. § 1295(a)(9). II A Board decision must be affirmed unless it is “(1) ar- bitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures re- quired by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). Substantial evidence is “evidence that a reason- able mind may take as sufficient to establish a conclusion.” Grover v. Office of Pers. Mgmt., 828 F.3d 1378, 1383 (Fed. Cir. 2016). The WPA prohibits an agency from taking a personnel action in retaliation for any whistleblowing “disclosure” or activity. 5 U.S.C. § 2302(b)(8)–(9). An employee in Dr. Ku- riakose’s position has to show by a preponderance of the evidence that she made a protected disclosure that contrib- uted to a personnel action against her. 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 persuasion shifts to the agency to show by clear and convincing evidence that it would have taken ‘the same personnel action in the ab- sence of such disclosure.’” Id. at 1364 (quoting 5 U.S.C. § 1221(e)). If the agency does not make that showing, the agency’s personnel action must be set aside. See Siler v. Envtl. Prot. Agency, 908 F.3d 1291, 1298 (Fed. Cir. 2018). The Board may consider whistleblowing charges only if the claimant presented them to OSC. 5 U.S.C. § 1214(a)(3); Ward v. M.S.P.B., 981 F.2d 521, 526 (Fed. Cir. 1992). III Dr. Kuriakose presents several challenges to the Board’s findings and evidentiary rulings. We do not find these challenges persuasive. 10 KURIAKOSE v. DVA

A As an initial matter, we reject Dr. Kuriakose’s conten- tion that she lacked notice adequate to enable her to pre- sent her constructive-termination claim. On June 13, 2018, after a year of preparations, and shortly before the hearing was to occur, the administrative judge stated that the Board lacked jurisdiction over Dr. Kuriakose’s con- structive-termination claim. Dr. Kuriakose immediately challenged that ruling, and the administrative judge changed her conclusion nine days later, with the hearing taking place three days after that. Dr. Kuriakose has not shown that the nine-day period of scope restriction, during which the restriction was actively being contested, preju- diced her ability to present the constructive-termination claim. Nor has she shown prejudice from the absence of writ- ten confirmation of the burdens of proof or the elements necessary to prove her claim. Dr. Kuriakose laid out the burdens and her proffered evidence in an earlier response to the Board’s initial jurisdictional order. J.A. 1709–11. Dr. Kuriakose has not identified any additional evidence or arguments that she would have relied on had she been given written confirmation of the burden of proof and ele- ments to be proven. See Wynn v. U.S. Postal Serv., 115 M.S.P.R. 146, 150–51 (2010) (“When an administrative judge fails to inform the parties of their burden and meth- ods of proof, the Board typically remands the appeal so the administrative judge can afford such notice and an oppor- tunity to submit evidence and argument under the proper standard.” (emphasis added)). Dr. Kuriakose also argues that the Board erred in not considering a separate claim of hostile work environment. OSC’s January 6, 2017 letter, however, confirms that she relied on a hostile work environment only as part of a con- structive-termination claim, not as a separate claim. J.A. 1727 (discussing Dr. Kuriakose’s claim that “agency KURIAKOSE v. DVA 11

officials subjected [her] to a hostile work environment, leaving [her] no choice but to resign”). The Board thus lacked jurisdiction over a separate hostile work environ- ment claim. 5 U.S.C. § 1214(a)(3); see Ward, 981 F.2d at 526. B Dr. Kuriakose argues that a number of the Board’s findings are not supported by substantial evidence. We disagree. 1 Cutting an employee off from training may be a covered personnel action if the training “may reasonably be ex- pected to lead to an appointment, promotion, performance evaluation, or other [covered personnel action].” 5 U.S.C. § 2302(a)(2)(A)(ix). Dr. Kuriakose challenges the Board’s findings about her effort to attend the COPDGene study training session. We reject the challenge. The Board thoroughly reviewed the testimony and doc- umentary evidence regarding Dr. Kuriakose’s failure to ob- tain patient-care coverage that would free her to attend the COPDGene study training session. J.A. 30–31. Email communications show that it was Dr. Kuriakose’s respon- sibility to obtain coverage for her VA shifts in order to at- tend the session. J.A. 1610 (email from Dr. Kazerooni to Dr. Krishnamurthy noting that Dr. Kazerooni “told [Dr. Kuriakose] to arrange coverage” and that Dr. Kazerooni would “only sign off on [her] end once the coverage arrange- ments [we]re sent to [her]”). Dr. Kuriakose was aware of this responsibility. J.A. 507. Indeed, she asked Dr. Krish- namurthy to close off a slot that would have allowed Dr. Kuriakose to perform a procedure on one of her patients before she left for her training. J.A. 508. Dr. Krishna- murthy testified that he did not close off the slot because the physician schedule had already been set by the time Dr. Kuriakose made the request. J.A. 129–30. The Board 12 KURIAKOSE v. DVA

reasonably found, based on this evidence, that Dr. Kuria- kose had not proven that the VA prevented her from at- tending the COPDGene study training session. Dr. Kuriakose faults the Board for relying on some of Dr. Krishnamurthy’s testimony without considering an al- leged inconsistency. All that Dr. Kuriakose cites, however, is a possible minor inconsistency that is not specifically about the effort to attend the COPDGene study training session. See J.A. 124; J.A. 1164. The Board was entitled to make credibility determinations, and the decision to credit the key testimony of Dr. Krishnamurthy was not an abuse of that discretion. See Bieber v. Dep’t of the Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002). 2 Substantial evidence also supports the Board’s deter- mination that Dr. Kuriakose failed to prove that her depar- ture from the VA was something other than the voluntary resignation that it was on its face. “Resignations are pre- sumed voluntary, and the burden of showing that the res- ignation was involuntary is on the petitioner.” Terban v. Dep’t of Energy, 216 F.3d 1021, 1024 (Fed. Cir. 2000). Our cases look at the circumstances, objectively considered, and focus on whether the resignation was shown to have re- sulted from misinformation, deception, or coercion by the agency. Id. Here, Dr. Kuriakose notified Dr. Young of her impend- ing resignation in late November 2014, but did not send a formal letter until mid-December, and the resignation took effect on December 28, 2014. J.A. 17; J.A. 1596. The Board could properly consider it significant that Dr. Kuriakose’s husband began a new out-of-state job approximately one week after Dr. Kuriakose’s resignation became effective. J.A. 35; J.A. 547–48. In addition, Dr. Kuriakose simulta- neously resigned from her position at the University even though she testified that the working conditions at the Uni- versity were not intolerable. J.A. 522–23. KURIAKOSE v. DVA 13

The Board properly determined that the events to which Dr. Kuriakose points do not add up to intolerable conditions that would make her resignation involuntary. Although Dr. Kuriakose had concerns that her difficult working environment negatively affected her patients’ safety, the evidence shows that she was objectively provid- ing satisfactory care and meeting deadlines. J.A. 35–36; J.A. 136; J.A. 499. Difficulties in getting along with co- workers do not on their own amount to an objectively intol- erable work environment. See Miller v. Dep’t of Defense, 85 M.S.P.R. 310, ¶ 32 (2000). And that conclusion is not un- dermined by the alleged remarks of Dr. Jamadar to her in September 2014 (or about her shortly thereafter). Nor is a different conclusion supported by the evidence concerning the VA’s attempt to move her workstation. To the extent that Dr. Kuriakose is arguing that the attempt to move workstations was itself a personnel action, she did not so allege in her complaint to OSC and cannot raise such a challenge before this court for the first time. 5 U.S.C. § 1214(a)(3); see J.A. 1727. To the extent that she is argu- ing that the attempt to move workstations contributed to her intolerable work environment, record evidence does not support her allegation. Dr. Krishnamurthy offered to have Dr. Kuriakose’s workstation moved if she felt that the move would improve her environment; Dr. Kuriakose declined; and she was not in fact required to move her workstation. J.A. 7; J.A. 143–44; J.A. 475; J.A. 1656. That incident does not justify finding an objectively intolerable work environ- ment, even when considered with the other facts. Dr. Kuriakose also takes issue with the Board’s assess- ment of the timekeeping and leave procedures to which Dr. Kuriakose was subjected. Dr. Kuriakose did not separately allege changes in timekeeping and leave policies as a per- sonnel action in her complaint to OSC and cannot raise the issue for the first time here. 5 U.S.C. § 1214(a)(3); see J.A. 1727. To the extent that Dr. Kuriakose argues that changes in timekeeping and leave policies contributed to 14 KURIAKOSE v. DVA

an intolerable work environment, that allegation is unsup- ported by the record. Dr. Krishnamurthy had repeatedly expressed concerns that Dr. Kuriakose was not following the VA’s rules for timekeeping and leave. J.A. 7; J.A. 1493– 94. Dr. Kuriakose has not alleged that the rules applied to her were any different from the rules applied to all VA phy- sicians. Requiring her to comply with the agency’s rules is not evidence of an objectively intolerable work environ- ment. 3 Dr. Kuriakose also disagrees with the credibility deter- minations made by the Board regarding Dr. Kuriakose’s exclusion from VA committees and her isolation from co- workers. We give great deference to such credibility deter- minations. Bieber, 287 F.3d at 1364. We see no reversible error here. The Board found that there were no requests to join committees in the relevant time period. J.A. 32. Its deci- sion in that respect is supported by substantial evidence. Nor did the Board err in assessing Dr. Kuriakose’s tes- timony that she was isolated from co-workers. In fact, the Board credited Dr. Kuriakose’s testimony on this topic, not- ing that she had “demonstrated that colleagues avoided in- teracting with her.” J.A. 35–36. But, as discussed above, the Board properly found that this did not rise to the level of a constructive termination, noting, among other things, Dr. Kuriakose’s own role in her isolation, evinced by the information Dr. Young received on the subject. J.A. 1592; J.A. 1606–08. And even with the noted isolation, Dr. Ku- riakose received “satisfactory” performance reviews, was considered a “valuable member” of the radiology team by Dr. Krishnamurthy, and met patient deadlines. J.A. 35; J.A. 136; J.A. 499. There is no error in the Board’s assess- ment of the evidence on this topic. KURIAKOSE v. DVA 15

4 Finally, Dr. Kuriakose argues that an allegedly dispar- aging letter from the VA to the University in 2013 consti- tuted a personnel action. Dr. Kuriakose has not challenged the Board’s finding that her only protected disclosure was to Dr. Young on February 26, 2014. Any actions before that date, including the 2013 letter, cannot be retaliatory per- sonnel actions. J.A. 31; J.A. 1712. Further, a disparaging letter without more is not a personnel action under 5 U.S.C. § 2302(a). Dr. Kuriakose’s additional allegations that the VA otherwise interfered with her advancement at the University are not supported by record evidence. C Dr. Kuriakose argues that the Board overlooked sev- eral pieces of significant evidence. See Whitmore, 680 F.3d at 1376 (noting duty to consider evidence). We disagree. Regarding Dr. Kuriakose’s claim that the VA pre- vented her from attending the COPDGene study training session, she argues that the Board did not consider the fact that Dr. Kuriakose could not attend the training session because Dr. Krishnamurthy failed to close off a slot for her if she moved a patient from that slot to complete the pa- tient’s treatment before she left for the training session. But the Board did consider that fact, as discussed above. J.A. 30–31. With respect to the constructive-termination claim, Dr. Kuriakose argues that the Board did not consider (1) the totality of circumstances, (2) the offer to move her work sta- tion, (3) evidence regarding her date of resignation, (4) the impact that her work environment had on patient care, (5) changes in timekeeping and leave practices, (6) an overall change in working conditions, (7) Dr. Jamadar’s allegedly derogatory comments and behavior, (8) Dr. Young’s inves- tigation into other radiology staff’s complaints about Dr. 16 KURIAKOSE v. DVA

Kuriakose, (9) her exclusion from VA committees, and (10) interference with promotion at the University. Several of Dr. Kuriakose’s arguments go to the weight the Board gave to the evidence. Those arguments have al- ready been reviewed above. And we see no failure of the Board to consider all the relevant circumstances in ruling on the constructive-termination claim. The Board consid- ered Dr. Krishnamurthy’s offer for Dr. Kuriakose to move workstations (J.A. 7–9), the timing of Dr. Kuriakose’s res- ignation (J.A. 35), allegations of discrimination as far back as 2012 (J.A. 35), Dr. Kuriakose’s concerns for patient safety (J.A. 35), the particular timekeeping and leave pro- cedures put in place to help Dr. Kuriakose comply with the VA’s requirements (J.A. 7, 17), whether Dr. Kuriakose had objectively experienced a change in working conditions (J.A. 35), allegedly derogatory comments made by Dr. Jam- adar (J.A. 12–15, 35), Dr. Kuriakose’s feelings of isolation and poor communication with her co-workers (J.A. 36), Dr. Young’s investigation into Dr. Kuriakose’s interactions with her co-workers (J.A. 35–36), whether Dr. Kuriakose was excluded from VA committees (J.A. 32–34), and whether the VA interfered with Dr. Kuriakose’s promotion at the University (J.A. 31). That the Board did not find this evidence persuasive does not mean that it failed to consider it. D The Board, and specifically an administrative judge, may exclude witness testimony and evidence that is irrele- vant, immaterial, or repetitious, and we review such exclu- sion for abuse of discretion. 5 C.F.R. § 1201.41(b)(10); Curtin v. Office of Pers. Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 1988) (“Procedural matters relative to discovery and evidentiary issues fall within the sound discretion of the board and its officials.”). Even if there were an abuse of discretion in excluding witnesses or testimony, Dr. Kuria- kose could obtain relief here only by showing that the error KURIAKOSE v. DVA 17

caused “substantial harm or prejudice to [her] rights which could have affected the outcome of the case.” Id. at 1379. Dr. Kuriakose challenges the Board’s exclusion of Drs. Kazerooni, Pernicano, and Kaza from testifying at Dr. Ku- riakose’s hearing. J.A. 1224. She also challenges the ex- clusion of certain evidence regarding retaliatory animus and harassment. For the reasons discussed below, we do not find any of these challenges persuasive. 1 The Board did not err in excluding Dr. Kuriakose’s Uni- versity supervisor, Dr. Kazerooni, who, Dr. Kuriakose said, would testify about “her communications with the VA on Dr. Kuriakose’s behalf regarding allegations of sexual har- assment and whistleblower retaliation.” J.A. 1538. Dr. Kuriakose now claims that Dr. Kazerooni also could have testified about the specific incidents that Dr. Kuriakose al- leges led to her constructive termination, including the re- duction in professional development time, denial of training, harassment by co-workers, the totality of the cir- cumstances experienced by Dr. Kuriakose, the timing of Dr. Kuriakose’s resignation, and interference with Dr. Ku- riakose’s promotion at the University. Dr. Kazerooni, how- ever, is not an employee of the VA, and Dr. Kuriakose has not shown what information on the above-described topics she could supply that was from personal knowledge, was relevant, and was not duplicative of Dr. Kuriakose’s and other witnesses’ testimony. Dr. Kazerooni might have per- sonal knowledge of and non-duplicative testimony about the alleged interference with Dr. Kuriakose’s promotion at the University, but as discussed above, the Board properly found that the alleged interference was not a personnel ac- tion covered by 5 U.S.C. § 2302(a). Testimony from Dr. Kazerooni on that topic could not have changed the Board’s conclusion. 18 KURIAKOSE v. DVA

2 Dr. Kuriakose sought to have Dr. Perry Pernicano, one of her VA co-workers, testify about “retaliatory actions taken against Dr. Kuriakose following her protected disclo- sures.” J.A. 1537. Dr. Kuriakose now claims that Dr. Per- nicano’s testimony was necessary to show that she followed proper procedures for obtaining patient-care coverage prior to the COPDGene study training session, that she was ex- cluded from the Lung Cancer Committee, and that she was subjected to derogatory comments and isolation by her co- workers. The facts about those topics were all in the record before the Board and discussed by other witnesses, includ- ing Dr. Kuriakose. J.A. 30–33; J.A. 36. There is no indica- tion that the Board discounted Dr. Kuriakose’s account of those incidents for lack of corroboration. Further, the Board found that Dr. Kuriakose failed to obtain coverage for herself and failed to show that she had actually applied to the Lung Cancer Committee. J.A. 30–33. Dr. Kuriakose has not made a persuasive showing that Dr. Pernicano had specific testimony to offer that could reasonably have al- tered the assessment of the facts. Finally, the Board in fact credited Dr. Kuriakose’s testimony that she was subjected to derogatory comments and was isolated from her co- workers. J.A. 35–36. Additional testimony by Dr. Perni- cano would have been duplicative on that point and could not have changed the decision. 3 Dr. Kuriakose sought to have Dr. Asha Kaza, another VA co-worker, testify about “how the VA, and Eric Young handled her disclosures of sexual harassment and the sub- sequent acts of retaliation taken against her.” J.A. 1537. Dr. Kuriakose now claims that Dr. Kaza also would have testified about the overall work environment at the VA, the state of the workstation offered to Dr. Kuriakose, and the VA’s retaliatory animus toward Dr. Kaza after a protected disclosure. But there was ample other testimony about the KURIAKOSE v. DVA 19

VA work environment and workstations, including from Dr. Kuriakose, and there is no indication that the Board discounted Dr. Kuriakose’s testimony about those matters for lack of corroboration. J.A. 7; J.A. 34–36. Dr. Kuriakose has not shown that Dr. Kaza’s testimony would have added something significant to the facts about the environment Dr. Kuriakose experienced. We also see no abuse of discretion in excluding the sug- gested testimony about retaliation against Dr. Kaza for her disclosures of sexual harassment. “[W]hen determining whether an agency has shown by clear and convincing evi- dence that it would have taken the same personnel action in the absence of whistleblowing, it will consider . . . the strength of the agency’s evidence in support of its personnel 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 Secu- rity Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999). Here, the Board could conclude that Dr. Kuriakose had not shown that Dr. Kaza was similarly situated to Dr. Kuria- kose. Compare Sharpe v. Dep’t of Justice, 916 F.3d 1376, 1380 (Fed. Cir. 2019) (evidence of hostility toward similarly situated reservist was relevant evidence in a Uniformed Services Employment and Reemployment Rights Act case). Moreover, evidence of retaliatory animus bears on whether the agency would have taken a personnel action regardless of the appellant’s protected disclosure. Carr, 185 F.3d at 1323. In this case, that issue is focused on one personnel action—the reduction in professional development time for Dr. Kuriakose. The Board could properly conclude, in the exercise of its discretion about the bounds of the proceed- ing, that Dr. Kaza’s testimony about a retaliatory animus with respect to other personnel actions against others was too remote in significance to the issue presented here and could not have changed the decision. 20 KURIAKOSE v. DVA

4 Dr. Kuriakose’s challenges to the exclusion of certain testimony regarding other employees’ complaints about Dr. Krishnamurthy, J.A. 239–40; J.A. 278–81, are unavailing for essentially the reasons noted above with respect to ex- clusion of Dr. Kaza’s testimony. Dr. Kuriakose’s argument that the Board improperly excluded testimony regarding harassment from before 2014 mischaracterizes the record. At the hearing, during a colloquy about training and leave at the VA, the Board merely directed that the testimony be focused on the relevant timeframe. J.A. 420–21. And the Board’s decision notes that Dr. Kuriakose had complained of harassment since 2012. J.A. 35. IV For the forgoing reasons, we affirm the decision of the Board. The parties shall bear their own costs. AFFIRMED