[00:00:00] Speaker 01:
Good morning, Your Honors.

[00:00:02] Speaker 01:
Stephen Wicks on behalf of James D'Onofrio, the appellant in this case.

[00:00:05] Speaker 02:
Let me announce the case so that it gets into the record appropriately.

[00:00:10] Speaker 02:
Number 181671, Mr. D'Onofrio against the Department of Veterans Affairs.

[00:00:18] Speaker 02:
And Mr. Wicks, please proceed.

[00:00:20] Speaker 01:
Thank you, Your Honor.

[00:00:21] Speaker 01:
I apologize for that.

[00:00:22] Speaker 01:
If I may, Your Honors, there were three protected disclosures that were litigated in this case, two of which were accepted by the administrative judge.

[00:00:33] Speaker 01:
And I want to talk about this for just a moment, because the findings on those two issues highlight what we submit as a problem with this case, and that is this.

[00:00:43] Speaker 01:
In each instance where the administrative judge accepted the disclosures, and that would be for Dr. Struthers and the polytrauma report,

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He characterized my client's explanation for why he filed those reports.

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And we contend he mischaracterized those and essentially labeled him as being dishonest.

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The law doesn't require proof of motive with respect to the filing of a report.

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The entry point is that you filed your protective, just major protective disclosure.

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And the reason I want to make this point is,

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It was the administrative judge who asked my client, with respect to the Struthers report, why he didn't talk to him first, as if there would be some obligation to do that.

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And there isn't.

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My client's response was that I did talk to him.

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They were friends.

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He started crying.

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He admitted that he had a problem.

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But then he ended the conversation.

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The administrative judge took that testimony and essentially said,

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Well, this tells me that you viewed him as being formal and strict and cut off the discussion.

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Let's take this piece by piece.

[00:01:58] Speaker 01:
With respect to Stravas, was there any retaliation for Stravas?

[00:02:08] Speaker 01:
Yes, Your Honor, there was.

[00:02:09] Speaker 01:
I mean, the retaliation all occurred.

[00:02:12] Speaker 01:
The retaliation we contend occurred both before, well,

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before the polytrauma, after struthers, and then after polytrauma, and after audiology.

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So it's hard to piece out which retaliation was specifically attended to which disclosure.

[00:02:39] Speaker 01:
But I can say that the AIB, for example, the administrative board that was instigated, which we contend was retaliatory.

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Specifically, if you look at the two complaints that were made to start that from Ms.

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Homan and Ms.

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Krauss, they very, very, very specifically attacked my client for his report of Dr. Struthers.

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And so that, we contend, was explicitly related to Dr. Struthers' report.

[00:03:13] Speaker 01:
He attacked you a client.

[00:03:14] Speaker 01:
How?

[00:03:19] Speaker 01:
Ms.

[00:03:19] Speaker 01:
Krauss, for example, said, we don't believe that Mr. D'Onofrio should be permitted to have whistleblower protection for the Strauss report because of his character.

[00:03:35] Speaker 01:
They labeled him as a shark, said that he was disruptive in the facility.

[00:03:41] Speaker 01:
Is that retaliatory action?

[00:03:44] Speaker 01:
That's the trigger to the retaliatory action, Your Honor.

[00:03:48] Speaker 01:
Which was?

[00:03:49] Speaker 01:
Which was the AIB.

[00:03:51] Speaker 01:
The administrative investigative board is essentially the equivalent to a grand jury in a criminal proceeding.

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And of course, the administrative judge said, well, there's no retaliation there because there's no explicit threat of discipline.

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just like a criminal charge, the institution of an investigative board, which had multiple pages of accusations, it has an inherent risk and threat of discipline.

[00:04:31] Speaker 02:
But there was no discipline, is that right?

[00:04:33] Speaker 01:
There was no discipline.

[00:04:34] Speaker 01:
We agree.

[00:04:35] Speaker 01:
But at the end, Your Honor,

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My client received a letter that said, no action, we find that you are guilty of these charges, but no action will be taken.

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And so the point of that is that for the 10 months that that AIB was in place, there was a, we submit an inherent threat of discipline.

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And when you look at the cases, I've supplied the court with the

[00:05:06] Speaker 01:
the threat cases.

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Now, they didn't arise under investigations, but the Mastrulla case, for example, discusses both explicit and implied threats.

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And the Mastrulla case in particular, if you look at the Spears case that's cited in there, the board approved an implied threat and said if, for example, if you threaten someone with discipline,

[00:05:33] Speaker 01:
Because you accuse them of doing something wrong, and there's no evidence that they did this, that's a prohibited action.

[00:05:42] Speaker 02:
And so what remedy are you seeking?

[00:05:45] Speaker 01:
Well, in terms of remedies, Your Honor, I will go on to some other very specific retaliation we contend occurred with respect to positions that were denied.

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But let me finish.

[00:06:01] Speaker 01:
But the board found that he was less qualified than other advocates, right?

[00:06:09] Speaker 01:
That is correct.

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Which he wouldn't have gotten the job anyway.

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That was the finding in both of those positions.

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If I may, just one more point before I hit that, Your Honor.

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In terms of this whole issue of, well, there was no threat, remember that under the Savage case,

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The board has defined a prohibited action as one that has a significant impact on working conditions that may result in a chilling effect upon whistleblowers.

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So if you look in this case at the number of investigations, both against my client and against the witnesses in their MSPB cases, we contend that these investigations are essentially being weaponized

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to shut people down, to intimidate them from filing, you know, making whistleblower claims.

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On to your point, Your Honor.

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If you look at the two positions in particular that were denied, one is the privacy officer position.

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The administrative judge concluded that there was clear convincing evidence they would have hired the other applicant anyway.

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And however,

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The evidence indicated, and Mr. Mills, the selecting authority, admitted that my client had the highest score and generally the highest scoring person gets the job.

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And the administrative judge minimized Mr. Mills' incentive to retaliate against my client, said he really didn't have much of an incentive.

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However, Mr. Mills was the appointing authority for Dr. Struthers.

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And my client's report called into question Mr. Mills' judgment from a management perspective for allowing Dr. Struthers to continue to act as a physician.

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In addition to that, Mr. Mills, in sort of a classic, I'll make any decision I want to make, didn't ask any questions during the interview, didn't maintain any notes,

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and in fact admitted they didn't talk about the job, they talked about sports, and the interview was over.

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So that is a scenario that warrants caution in terms of accepting the explanation where there's absolutely no way to make a determination, because there was no record of what went into the decision-making process.

[00:08:51] Speaker 01:
The other point I make on

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This decision, Your Honor, is that there was a pattern that was not examined by the administrative judge under Whitmore.

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And that is that we had three management people, after my client became a whistleblower, make comments that were very, very similar.

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And that is Mr. Mills, in this case, saying, go elsewhere.

[00:09:17] Speaker 01:
You won't be able to get a job.

[00:09:18] Speaker 01:
You won't be able to advance here.

[00:09:20] Speaker 01:
Dr. Kurian, who was the authority

[00:09:23] Speaker 01:
Appointed an authority in the second position, the contractor's office position, told her secretary when the resumes were being handed out that it won't be J. And Dr. Struthers gave my client and Mr. Scorada, the co-whistleblower, a recruiter list, a VA recruiter list, and said, look for employment elsewhere.

[00:09:50] Speaker 01:
Now, that's a pattern that we submit.

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has to be looked at in total.

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It can't be disaggregated because Whitmore dictates you have to look at the evidence in its totality, not piece by piece.

[00:10:06] Speaker 01:
And I admit.

[00:10:09] Speaker 01:
Didn't she look at his resume before she was handing them out and saw that his score was considerably lower?

[00:10:16] Speaker 01:
No, Your Honor.

[00:10:17] Speaker 01:
The scoring would have occurred after the resume was handed out.

[00:10:23] Speaker 01:
The what?

[00:10:24] Speaker 01:
The scoring would have occurred after the resume was handled out.

[00:10:27] Speaker 01:
Testimony was this was before the panel was established.

[00:10:31] Speaker 01:
And Your Honor, so I may, Dr. Curion also, by the point that that process was starting to unfold, had already outed my client as a whistleblower directly to Dr. Struthers on July 25,

[00:10:53] Speaker 01:
And the interview wasn't until August.

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And I submit to this court that one of the issues that has to be examined, whether as a prohibited action or as a hostile work environment issue, whether it's separate or not, is where the management outs the whistleblower.

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In this case, directly to the subject

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of the whistle-blowing, Dr. Struthers.

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That's an event that is extremely telling in terms of the motive and the conduct of that official afterwards.

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So, you know, Dr. Kurian told her Ms.

[00:11:44] Speaker 01:
Gehringer, who's another witness in the case, she came into the office when Mr. Dinafria was there,

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after he had blown the whistle saying, don't talk to him anymore.

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She was very angry and gesticulating with her hands in a chopping motion.

[00:12:00] Speaker 01:
So that occurred even just before we knew officially that she knew about his whistle blowing on July 26 and before the selection process in August.

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So we submit that that change, where she's a selecting official,

[00:12:19] Speaker 01:
makes it virtually impossible to get past clear and convincing evidence.

[00:12:26] Speaker 01:
And the other thing I want to point out is on the Struthers recruiter list to Mr. D'Onofrio and Mr. Scarrata, the administrative judge said, well, you know, we dispute what Mr. D'Onofrio said because that list was given to him in April of 2013, and he cited

[00:12:48] Speaker 01:
the record from an EEO investigation.

[00:12:51] Speaker 01:
Well, I've cited the actual testimony to that.

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And the testimony in the record was that Struthers later gave him the list of employees, not on April of 2013 as the administrative judge concluded.

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So nowhere in the case does the administrative judge try to look at the larger picture.

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And the part that I submit is even more critical in terms of larger picture is we have an employee who had year after year after year after year of outstanding evaluations, leadership positions within the facility.

[00:13:32] Speaker 01:
He and his co-whistleblower make this report on Dr. Struthers, who was a friend, beloved in the facility.

[00:13:40] Speaker 01:
And after that,

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These investigations start not only against them, but against the witnesses in the case.

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And Ms.

[00:13:52] Speaker 01:
Appleby, Mr. Dobrowski, other employees, privacy investigations at large against all of their department.

[00:14:01] Speaker 01:
And nowhere in this case is that issue analyzed by the administrative judge.

[00:14:09] Speaker 02:
Where does that get us?

[00:14:12] Speaker 02:
that there were two instances of a prima facie case of reprisal, but no retaliation.

[00:14:19] Speaker 02:
So where does that leave us?

[00:14:20] Speaker 01:
Well, Your Honor, it leaves you, from our perspective, in analyzing the question of whether investigations can be made into weapons and used to intimidate employees who are whistleblowers.

[00:14:38] Speaker 01:
If savage means anything, savage and roach mean anything, they say that a change in working conditions that results in a chilling effect on the person's inclination to make reports is a prohibited personnel practice.

[00:14:58] Speaker 01:
And that's the issue before this Court.

[00:15:01] Speaker 01:
We submit to the Court that the only answer

[00:15:05] Speaker 01:
has to be yes, that you can't just initiate investigation after investigation, run them out to the end of the, like walking the plank, hold them there for nine or ten months as they did with the AIB, and then say, okay, we're not going to do anything.

[00:15:24] Speaker 01:
Somehow that has to stop.

[00:15:25] Speaker 01:
That is as antithetical to the intent of the... What has to stop?

[00:15:32] Speaker 01:
The ability of the agency to use investigations to silence employees.

[00:15:37] Speaker 02:
But you can't issue an edict that there'll be no investigations of issues that arise.

[00:15:45] Speaker 01:
I agree, but you can issue an opinion that says, if we find that you've done that with an improper motive, that is, with a retaliatory intent, then you're going to be held responsible.

[00:15:57] Speaker 01:
That's the only way that this can work, in our opinion, that we submit to you

[00:16:01] Speaker 01:
There has to be a decision that says, you can investigate until the cows come home, but you better be doing it for a legitimate purpose.

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Because the consequence, if it's not legitimate, is you're going to shut down whistleblowers.

[00:16:16] Speaker 01:
You're basically going to say to them, the agency's free to drag you over the coals every day of the week as much as they want with that impact.

[00:16:29] Speaker 01:
And that's it.

[00:16:29] Speaker 02:
Let's hear from the government.

[00:16:31] Speaker 01:
Thank you.

[00:16:35] Speaker 02:
Miss Cole.

[00:16:38] Speaker 00:
Thank you.

[00:16:38] Speaker 00:
May it please the court?

[00:16:39] Speaker 00:
This court should affirm the decision of the Barrett Systems Protection Board denying Mr. D'Onofrio's individual right of action appeal.

[00:16:47] Speaker 00:
The administrative judge did not abuse his discretion by excluding evidence regarding VA investigations of Mr. D'Onofrio because investigations that do not cause a significant change in duties, responsibilities, or working conditions are not prohibited personnel practices under 5 USC 2302.

[00:17:05] Speaker 00:
Mr. DeNofrio did not argue below, nor does he argue here, that the investigations caused a significant change in his working duties, responsibilities, or work conditions.

[00:17:16] Speaker 00:
Instead, he merely argues that the board has previously considered evidence of investigations.

[00:17:22] Speaker 00:
But as board case law makes clear, including the decision that opposing counsel cites, the board will only consider evidence of investigations when they could have been a pretext for later retaliatory action.

[00:17:35] Speaker 00:
The investigations cannot possibly have been a pretext because they occurred after almost all of the alleged retaliatory conduct at issue in this case.

[00:17:45] Speaker 00:
The only alleged actions that occurred after were Mr. Dufre's claim that Gina Homan, his temporary supervisor, denied his overtime and changed his duties.

[00:17:57] Speaker 00:
But Ms.

[00:17:57] Speaker 00:
Homan played no role whatsoever in the investigations that preceded this.

[00:18:01] Speaker 00:
In November of 2014, numerous employees reported that Mr. Genofrio behaved inappropriately during a meeting.

[00:18:09] Speaker 00:
Ms.

[00:18:09] Speaker 00:
Holman was not in that meeting, nor did she play any role in the subsequent investigation.

[00:18:14] Speaker 00:
In June of 2015, Daniel Shea, a coworker of Mr. Genofrio's, complained to the privacy office because he believes that Mr. Genofrio may have inappropriately been accessing his medical records.

[00:18:27] Speaker 00:
And so the privacy office investigated that.

[00:18:29] Speaker 00:
But again, that was Daniel Shea, not Ms.

[00:18:31] Speaker 00:
Homan, that made that complaint.

[00:18:33] Speaker 00:
And it was the privacy office that investigated it.

[00:18:36] Speaker 00:
Ms.

[00:18:36] Speaker 00:
Homan played no role whatsoever.

[00:18:38] Speaker 00:
And so here, the administrative judge did not abuse his discretion by excluding evidence of these investigations, because the investigations cannot possibly have been a pretext for the alleged retaliatory action.

[00:18:53] Speaker 00:
Now, if the court doesn't have any questions, I respectfully request that the court affirm the decision of the marriage.

[00:19:00] Speaker 02:
Any questions?

[00:19:02] Speaker 00:
OK.

[00:19:02] Speaker 02:
Thank you, Ms.

[00:19:04] Speaker 02:
Kohler.

[00:19:04] Speaker 02:
OK, Mr. Wix, you have two minutes to rebuttal.

[00:19:10] Speaker 01:
Your Honor, just on the point of the disconnect between Ms.

[00:19:14] Speaker 01:
Holman, for example, and Ms.

[00:19:15] Speaker 01:
Blocher on the privacy investigations, Ms.

[00:19:18] Speaker 01:
Blocher was the third person who filed a complaint in the AIB.

[00:19:23] Speaker 01:
And Ms.

[00:19:24] Speaker 01:
Blocher, in her complaint to the AIB and in her testimony that we've cited,

[00:19:29] Speaker 01:
expressed great sympathy for Dr. Struthers with respect to what was, quote, done to him, unquote.

[00:19:38] Speaker 01:
And Mr. Shea was the official who was responsible for the audiology contract that was the third

[00:19:55] Speaker 01:
complaint that was filed, or the third protective disclosure that was filed by my client.

[00:20:01] Speaker 01:
That was in June of 2015, and after June of 2015, Mr. Shea, both in June and in July, initiated investigations, one against my client and one against Mr. Dombrowski.

[00:20:17] Speaker 01:
So I submit that the clean hands argument doesn't actually apply

[00:20:23] Speaker 01:
to those two people with respect to these investigations.

[00:20:28] Speaker 02:
But even on that position, there is no remedy.

[00:20:31] Speaker 02:
I'm sorry?

[00:20:32] Speaker 02:
Where there was no adverse action taken.

[00:20:36] Speaker 01:
Well, there is a remedy in the sense that, number one, there would be a potentially compensatory damage remedy under the act, which is now recognized, Your Honor.

[00:20:50] Speaker 01:
And secondly,

[00:20:51] Speaker 01:
For example, the AIB, where my client was labeled as having a cognitive disorder, it was put into the record.

[00:21:01] Speaker 01:
It was claimed to be present tense by Mr. Mills, and then it was put into the AIB.

[00:21:08] Speaker 01:
And then that word spread through the facility.

[00:21:11] Speaker 01:
So that would be part of a compensatory damage claim.

[00:21:16] Speaker 01:
In addition, Your Honor, we

[00:21:18] Speaker 01:
we contend that at some point we should be able to bring a stop to the investigations.

[00:21:26] Speaker 02:
OK.

[00:21:27] Speaker 02:
Anything else?

[00:21:29] Speaker 01:
Thank you very much.

[00:21:30] Speaker 02:
Thank you both.

[00:21:31] Speaker 02:
The case is taken under submission.