Grissom v. Dep't of Veterans Affairs
| Decision Date | 30 November 2022 |
| Docket Number | 2021-2124 |
| Parties | MARK GRISSOM, Petitioner v. DEPARTMENT OF VETERANS AFFAIRS, Respondent |
| Court | U.S. Court of Appeals — Federal Circuit |
This disposition is nonprecedential.
Petition for review of the Merit Systems Protection Board in No. AT-0714-21-0175-I-1.
MARK D. GRISSOM, Maylene, AL, pro se.
MATNEY ELIZABETH ROLFE, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington DC, for respondent Department of Veterans Affairs. Also represented by BRIAN M. BOYNTON, TARA K. HOGAN, PATRICIA M MCCARTHY.
Before STOLL, BRYSON, and CUNNINGHAM, Circuit Judges.
Mr Mark D. Grissom worked at the Veterans Affairs (VA) Medical Center in Tuscaloosa, Alabama, as an Administrative Officer before the Department of Veterans Affairs removed him under 38 U.S.C. § 714. Mr. Grissom appealed that decision to the Merit Systems Protection Board, disputing the charges and asserting that the VA's removal was retaliatory. The Board affirmed the VA's decision. Because the Board's decision as to the reasonableness of removal as a penalty is legally erroneous in view of Connor v. Department of Veterans Affairs, 8 F.4th 1319 (Fed. Cir. 2021), we vacate that portion of the Board's decision and remand. We affirm, however, the Board's determination that Mr Grissom failed to prove his affirmative defenses.
Mr. Grissom held numerous positions at the VA Medical Center before becoming an Administrative Officer. He had a clean disciplinary record with mostly successful performance reviews. Throughout his time at the VA, Mr. Grissom raised numerous concerns with the VA officials regarding certain alleged activity at the VA Medical Center, such as a supervisor not being on-site, doctors threatening staff, retaliatory actions against him, and other prohibited personnel practices.
The VA issued its first proposed removal letter to Mr. Grissom on August 28, 2020, for failure to follow instructions, conduct unbecoming of a federal employee, inappropriate use of computer and email, and lack of candor. On October 6, 2020, the VA rescinded its first proposed removal letter and issued a second proposed removal letter, charging Mr. Grissom with failure to follow instructions. The notice provided five specifications to support the charge, each specification based on separate instances in which Mr. Grissom failed to complete work as directed by his supervisor. In response, Mr. Grissom asserted that his supervisor, Dr. Nathan Whitaker, and other officials engaged in ethical violations, retaliatory conduct, and corruption. He also demanded the immediate removal of these individuals and alleged that he had information sufficient to bring a RICO case against VA employees. The VA's deciding official in this case, Mr. John Merkle, determined that "the charge and its specifications . . . are supported by substantial evidence," and the VA removed Mr. Grissom from his position. Appx.[1] 28.
Mr. Grissom appealed to the Board, disputing the charge and arguing that the VA was retaliating against him for his protected whistleblowing disclosures. The Administrative Judge (AJ) determined that Mr. Grissom made fifteen protected whistleblowing disclosures over the relevant time frame. The AJ further concluded that, because Mr. Merkle had notice of Mr. Grissom's disclosures before the issuance of the first proposed removal letter, a reasonable person could conclude that Mr. Grissom's disclosures contributed to the decision to remove Mr. Grissom. Nevertheless, the AJ affirmed the VA's decision, concluding that the VA had shown by clear and convincing evidence that it would have removed Mr. Grissom regardless of his whistleblowing.
In determining whether the VA would have taken the same personnel action in the absence of whistleblowing, the AJ considered the factors set forth in Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir. 1999): "(1) the strength of the agency's evidence in support of its action; (2) the existence 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." Appx. 77 (citing Carr, 185 F.3d at 1323).
The AJ found that the first factor weighed heavily in the VA's favor because the strength of the evidence that Mr. Grissom "failed to follow instructions is overwhelming." Id. The AJ noted that Mr. Grissom did not dispute that he failed to perform the assigned tasks and gave what the AJ found were "less than credible" reasons for not performing the tasks. Id. Next, the AJ found that the second factor favored the VA because there was little to no motivation to retaliate, because VA officials at the Tuscaloosa VA were "numb" to Mr. Grissom's numerous allegations, no individual VA official was directly implicated in multiple of these allegations, and there was no indication Mr. Merkle was angered by or fearful of Mr. Grissom's whistleblowing. Appx. 78. The AJ similarly found the third factor favored the VA because the VA's action was not inconsistent with disciplinary actions taken against employees who failed to follow instructions and were not whistleblowers. Relevant to this factor, the AJ relied on Mr. Merkle's undisputed testimony that he had been the deciding official in 15 to 20 disciplinary actions, seven of which were removals, only one of the removals involved a whistleblower; further, of the six non-whistleblower removals, three removals involved charges of failure to follow instructions. Viewing the record as a whole, the AJ found that the VA had met its burden and sustained the removal charge.
The AJ also considered Mr. Grissom's defense that he was removed in retaliation for filing a civil RICO lawsuit. The AJ first found that a RICO lawsuit is protected activity under 5 U.S.C. § 2302(b)(9)(A)(ii), as opposed to protected under whistleblower law. The AJ then determined that under Warren v. Department of the Army, 804 F.2d 654 (Fed. Cir. 1986), Mr. Grissom had not demonstrated that "there was a genuine nexus between the retaliation and the adverse employment action." Appx. 81-83. The AJ found that the first three elements were met. However, the AJ found that Mr. Grissom "failed to show a genuine nexus between his removal and his civil RICO lawsuit" because the deciding official "credibly testified" that he never saw the first letter or considered it and that he "was one of many agency officials named, and there was no evidence that Mr. Merkle was personally impacted by it or fearful of it in any way." Appx. 83-84. The AJ sustained the charge.
The AJ went on to analyze the reasonableness of the penalty in light of certain factors set forth in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981): (1) the nature and seriousness of the offense, (2) the employee's past disciplinary record, (3) the supervisor's confidence in the employee's ability to perform his assigned duties, (4) the consistency of the penalty with the agency's table of penalties, and (5) the consistency of the penalty with those imposed on other employees for the same or similar offenses. Appx. 85 ().
With respect to the first and third factors, the AJ considered the testimony of Mr. Merkle and Mr. Grissom's supervisor that Mr. Grissom's actions hindered the VA's ability to provide safe and efficient care to veterans. The AJ also noted that Mr. Merkle considered a lesser penalty than removal but decided against it given the nature of the misconduct and Mr. Grissom's repeated failures to follow instructions. For the second factor, the AJ determined that Mr. Grissom's "failure . . . to take any responsibility for his misconduct" outweighed his mostly clean service record. Id. For the fourth and fifth factors, the AJ determined that removal for failure to follow instructions was appropriate in light of the agency's decisions in similar cases. The AJ thus affirmed the VA's action.
The AJ's decision became the final decision of the Board, see 5 C.F.R. § 1201.113, and Mr. Grissom timely sought review in this court, see 5 U.S.C. § 7703. We have jurisdiction under 28 U.S.C. § 1295(a)(9).
We review the Board's legal conclusions de novo and its fact findings for substantial evidence. See Smith v. Gen Servs. Admin., 930 F.3d 1359, 1364 (Fed. Cir. 2019). "To determine whether substantial evidence supports the Board, we must determine whether 'considering the record as a whole, the agency's evidence is sufficient to be found by a reasonable factfinder to meet the [agency's] evidentiary burden.'" Id. at 1367 (quoting Leatherbury v. Dep't of the Army, 524 F.3d 1293, 1300 (Fed. Cir. 2008)). An MSPB decision must be affirmed unless it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence." 5 U.S.C. § 7703(c).
On appeal, Mr. Grissom argues that: (1) the Board did not appropriately assess the Carr factors; (2) the Board erred in finding that his filing of a RICO lawsuit was not a protected activity that would preclude his removal; (3) the Board erred in sustaining the VA's charge of failure to follow instructions; (4) the Board erred in determining the VA acted reasonably in removing him; and (5) the AJ allowed perjury and witness tampering. We address each argument in turn.
We first address Mr. Grissom's argument that the Board erred in sustaining the VA's charge of failure to follow instructions. We...
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