Yunus v. Dept. of Veterans Affairs

Decision Date22 March 2001
Citation242 F.3d 1367
Parties(Fed. Cir. 2001) MOHAMMED YUNUS, Petitioner, v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. 00-3051 DECIDED:
CourtU.S. Court of Appeals — Federal Circuit

Appealed from: Merit Systems Protection Board

Paul A. Donnelly, Donnelly & Gross, P.A., of Gainesville, Florida, argued for petitioner. With him on the brief was Laura A. Gross.

Martin F. Hockey, Jr., Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for respondent. With him on the brief were David M. Cohen, Director; and Kirk T. Manhardt, Assistant Director.

Before CLEVENGER, Circuit Judge, SMITH, Senior Circuit Judge,* and BRYSON, Circuit Judge.

BRYSON, Circuit Judge.

Dr. Mohammed Yunus, who was formerly employed as a physician with the Department of Veterans Affairs (DVA), appeals from an order of the Merit Systems Protection Board holding that the DVA did not violate the Whistleblower Protection Act when it discharged Dr. Yunus from his position with the agency. We affirm.

I

At the time of his discharge, Dr. Yunus was the head of radiology at the DVA's Daytona Beach Outpatient Clinic in Daytona Beach, Florida. In that capacity, he supervised two diagnostic radiologic technologists.

Dr. Yunus had a difficult working relationship with Don Clardy, one of the two diagnostic radiologic technologists. Dr. Yunus and Mr. Clardy each filed a number of complaints against the other during the time they worked together. In 1994, Dr. Yunus discovered that Mr. Clardy had not been certified by the American Registry of Radiology Technologists (ARRT). The applicable DVA regulations provide that a diagnostic radiologic technologist must be certified by the ARRT unless the technologist was permanently employed by the DVA on June 21, 1986, and his or her competence was affirmed in writing by a VA licensed physician by January 1, 1987. Dr. Yunus reported Mr. Clardy's lack of certification to a human resources officer at the DVA and to Dr. Sam Hyde, the chief medical officer at the Daytona Beach Outpatient Clinic. His report, however, did not address whether Mr. Clardy's competence had been affirmed in writing as required by the applicable regulation. Dr. Yunus repeated his concerns regarding Mr. Clardy's qualifications to serve as a diagnostic radiologic technologist when he reported other instances of alleged misconduct by Mr. Clardy between 1995 and 1998.

The events leading to Dr. Yunus's removal began in December 1997 when Dr. Yunus and Mr. Clardy again clashed. Dr. Yunus reported that Mr. Clardy had failed to follow instructions during fluoroscopy procedures on December 5, 1997 (involving patient Vernon Parker) and December 23, 1997 (involving patient Robert Taylor). As a result of Dr. Yunus's allegations, Mr. Clardy was issued a notice proposing a 14-day suspension. After Mr. Clardy's union representative requested the evidence file, Dr. Hyde determined that the incidents should be investigated further and instructed Mr. Alonzo Poteet, the Daytona Clinic coordinator, to direct the investigation. Mr. Poteet interviewed Mr. Clardy and the two patients, Mr. Parker and Mr. Taylor. The two patients contradicted Dr. Yunus's version of the events and attested that Mr. Clardy had followed Dr. Yunus's instructions during the procedures. In light of the patients' account of the events, a decision was made not to pursue the suspension action against Mr. Clardy.

Mr. Poteet met with Dr. Yunus on April 10, 1998, to explain the agency's decision regarding Mr. Clardy's suspension and to request that Dr. Yunus withdraw his complaint. Dr. Yunus's conduct during that meeting was cited in the notice of proposed discharge later issued to Dr. Yunus:

At this point, you became highly agitated and began jabbing your fingers within inches of [Mr. Poteet's] face. Your voice escalated and you told him to do his job and you would do yours. You continued your aggressive behavior and refused to withdraw your complaint. Mr. Poteet felt you were on the verge of losing complete control and he feared you might physically batter him. Mr. Poteet described your behavior as disrespectful, arrogant, excessive, abusive, and physically intimidating.

Dr. Yunus also met with Dr. Hyde on the same day. According to Dr. Hyde's account of that meeting, as reported in the notice of proposed discharge, Dr. Yunus "displayed the same aggressive and intimidating demeanor when approached regarding the `Clardy' incident." However, no action was taken against Dr. Yunus until later when the conflict between Dr. Yunus and Mr. Clardy escalated.

On April 22, 1998, Mr. Clardy reported that Dr. Yunus had threatened him with physical harm. Because of the seriousness of the charge, the clinic's security office was asked to investigate Mr. Clardy's allegations. Captain Milt Gordon interviewed both Mr. Clardy and Dr. Yunus. Dr. Yunus admitted that he had slammed the door of his office on Mr. Clardy on two separate occasions. Captain Gordon then re-interviewed Mr. Parker and Mr. Taylor, the two patients who had been the subjects of the fluoroscopy procedures in December 1997. Mr. Taylor reported seeing Dr. Yunus "put [his] hands on Mr. Clardy and physically push him out of a room on April 22, 1998." Mr. Taylor and Mr. Parker also confirmed that during the prior incidents of December 5 and December 23, "Mr. Clardy had attempted to follow [Dr. Yunus's] instructions but was berated by [him]."

Upon receipt of Captain Gordon's report, Dr. Hyde issued a notice of proposed discharge to Dr. Yunus on May 15, 1998, citing grounds of "disrespectful conduct, conduct unbecoming of a Federal employee, use of insulting abusive language to other personnel, making defamatory statements about other VA personnel and fabricating evidence in order to secure disciplinary action against a subordinate." Dr. Hyde also charged Dr. Yunus with assault against Mr. Poteet and battery against Mr. Clardy. Dr. Hyde's supervisor, Dr. Michael Good, heard Dr. Yunus's oral reply to the notice of proposed discharge.

On July 8, 1998, the deciding official, Dr. Elwood Headley, affirmed the discharge, sustaining all charges except those of battery and of fabricating evidence. Dr. Headley, however, noted that "[a]lthough evidence may not have been completely fabricated to obtain disciplinary action against a subordinate, your blatant distortion of the factual record has undermined your credibility to the point that the agency would not be able to confidently rely on you to continue in your supervisory role." He further stated that because the evidence as to battery was disputed, the battery charge was "not sustained even though the factual record elicited probably would have supported criminal charges of battery."

After exhausting his administrative remedies before the Office of Special Counsel (OSC), Dr. Yunus filed an individual right of action (IRA) appeal with the Merit Systems Protection Board alleging that the DVA had violated the Whistleblower Protection Act (WPA). He invoked that avenue of relief, rather than appealing directly from his removal, because the Merit Systems Protection Board lacks jurisdiction to review the removal of an employee in Dr. Yunus's position. See 5 U.S.C. § 7511(b)(10); 38 U.S.C. § 7425(a)(8) (providing that a physician in the Veterans Health Administration appointed pursuant to 38 U.S.C. § 7401(1) is not subject to subchapter V of chapter 75 of title 5, which provides for appeals to the Merit Systems Protection Board from adverse agency actions); Khan v. United States, 201 F.3d 1375, 1380-81 (Fed. Cir. 2000).

The administrative judge assigned to Dr. Yunus's IRA appeal found that Dr. Yunus had satisfied the jurisdictional criteria for the WPA and had established by a preponderance of the evidence that his protected disclosures had contributed to his discharge. The administrative judge also concluded that the DVA had failed to show by clear and convincing evidence that it would have proposed and effected Dr. Yunus's discharge absent his protected disclosures.

The DVA filed a petition for review asking the full Board to review the initial decision. The DVA cited two grounds in its petition for review: (1) that Dr. Yunus had not made any protected disclosures within the meaning of 5 U.S.C. § 2302(b)(8); and (2) that the DVA had shown by clear and convincing evidence that it would have proposed and effected the removal absent any protected disclosure.

The Board granted review and reversed the initial decision based on the second ground raised by the DVA in its petition. The Board stated:

Given our finding, explained below, that the agency proved by clear and convincing evidence that it would have taken the action despite any alleged whistleblowing activity, we need not, and do not, reach the issue (raised on petition for review) of whether the administrative judge was correct in finding that the appellant made protected disclosures.

Thus, the Board did not expressly address the question whether Dr. Yunus had made any protected disclosures as defined by 5 U.S.C. § 2302(b)(8).

II

At oral argument and in post-argument submissions, the parties addressed the question whether the merits of Dr. Yunus's appeal are properly before the court in light of the recent decision in Schmittling v. Department of the Army, 219 F.2d 1332 (Fed. Cir. 2000). In that case, Mr. Schmittling filed an IRA appeal based on a personnel action taken against another person. Because the action in question had an effect on Mr. Schmittling, he contended that the action gave the Board jurisdiction over his IRA appeal. The Board elected not to address that jurisdictional issue, but simply assumed that it had jurisdiction over the appeal and addressed the merits. On the merits, the Board concluded that Mr. Schmittling was not entitled to relief because the agency had proved by clear and convincing evidence that it would have taken the action in...

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