662 Fed.Appx. 975 (Fed. Cir. 2016), 2016-1832, Jimenez v. Department of Veterans Affairs

Docket Nº:2016-1832
Citation:662 Fed.Appx. 975
Opinion Judge:Per Curiam.
Party Name:JOE M. JIMENEZ, JR., Petitioner v. DEPARTMENT OF VETERANS AFFAIRS, Respondent
Attorney:JOE M. JIMENEZ, JR., Pro se, San Antonio, TX. CORINNE ANNE NIOSI, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., ALLISON KIDD-MILLER.
Judge Panel:Before MOORE, WALLACH, and STOLL, Circuit Judges.
Case Date:November 07, 2016
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 975

662 Fed.Appx. 975 (Fed. Cir. 2016)

JOE M. JIMENEZ, JR., Petitioner

v.

DEPARTMENT OF VETERANS AFFAIRS, Respondent

2016-1832

United States Court of Appeals, Federal Circuit

November 7, 2016

Editorial Note:

This Disposition is Nonprecedential. (See Federal Rule of Appellate Procedure Rule 32.1)

Petition for review of the Merit Systems Protection Board in No. DA-1221-13-0323-W-2.

JOE M. JIMENEZ, JR., Pro se, San Antonio, TX.

CORINNE ANNE NIOSI, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., ALLISON KIDD-MILLER.

Before MOORE, WALLACH, and STOLL, Circuit Judges.

OPINION

Page 976

Per Curiam.

Joe M. Jimenez, Jr. appeals the decision of the Merit Systems Protection Board denying him relief for an employment action taken by the Department of Veterans Affairs (" V.A." ). The Board held that Mr. Jimenez met his burden of showing that certain disclosures he made were protected under the Whistleblower Protection Act and contributed to his reassignment. The Board further held, however, that the Government successfully rebutted Mr. Jimenez's prima facie case of reprisal for whistle blowing by showing independent causation for the employment action. Because substantial evidence supports the Board's decision, we affirm.

Background

Mr. Jimenez worked as a Nuclear Medicine Technologist for the V.A., where his job duties included injecting patients undergoing PET/CT scans with radiological substances. During a November 21, 2011, injection Mr. Jimenez conducted the radiological substance Flourine 18 escaped from its tubing and struck a patient's arm and

Page 977

clothing. The Chief of Nuclear Medicine at the facility where Mr. Jimenez worked testified that the patient approached him later that day about the spill and explained that Mr. Jimenez did not clean the spill or show concern over it. The Chief memorialized his interaction with the patient in a memorandum he drafted the same day. Mr. Jimenez's direct supervisor investigated the incident and, as reflected in a memorandum he drafted several days after the spill, determined that radioactive material had been detected on the patient's clothing and in the general area where the spill had occurred. The memorandum further stated that Mr. Jimenez did not report the spill to his direct supervisor or to the radiation safety officer.

Following the investigation, the V.A. proposed Mr. Jimenez's removal in a letter dated December 23, 2011, for " Endangering the Patient's Health and Safety of Others" and for " Failure to Observe Precautions for Containment and Contamination of a Radioactive Material." Mr. Jimenez responded both in writing and orally, but the V.A. issued Mr. Jimenez's final notice of removal on February 22, 2012, effective March 5, 2012.

Mr. Jimenez brought a Whistleblower Protection Act (" WPA" ) claim before the Merit Systems Protection Board.1 Mr. Jimenez averred that the removal action was retaliatory in nature, citing several disclosures he alleged were protected under the WPA. Mr. Jimenez asserted that he had cooperated with an Office of Special Counsel investigation that was spurred by the complaint of a co-worker at his facility regarding the handling of nuclear materials there. Mr. Jimenez further alleged that he disclosed this cooperation to Human Resources and his superiors, seeking whistleblower protection, in a letter dated December 22, 2011. Mr. Jimenez also indicated that on October 7, 2011, and December 10, 2011, he had reported safety concerns regarding patient and employee radiation exposure. Finally, Mr. Jimenez indicated that he had filed a complaint with the Office of Special Counsel on March 1, 2012, regarding the handling of nuclear materials at his facility and alleging that he informed Human Resources of these handling practices on or about February 7, 2012. Some of Mr. Jimenez's disclosures criticized actions of his direct supervisor.

The Board concluded in its February 12, 2016, decision that Mr. Jimenez's October 7, December 10, and December 22, 2011, disclosures were protected under the WPA and that, under the 5 U.S.C. § 1221(e)(1) knowledge/timing test, these protected disclosures contributed to the decision to remove Mr. Jimenez, first proposed on December 23, 2011.2 The Board also concluded that the alleged February 7, 2012, disclosure did not contribute to his removal because it occurred after the removal action was already well underway.

The...

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