[00:00:12] Speaker 04: It looks like it might get worse before it gets better. [00:00:44] Speaker 04: Good morning. [00:00:45] Speaker 04: I think we're ready. [00:00:46] Speaker 04: Please. [00:00:51] Speaker 01: Good morning. [00:00:52] Speaker 01: If it may please the court, we are here today because the petitioner, Ms. [00:00:56] Speaker 01: Tiffany Potter, was retaliated against by the Department of Veterans Affairs for engaging in whistleblowing to protect disclosures and engaging in protected OIG activity. [00:01:04] Speaker 01: When applying the facts of this case to the relevant statutes, case law, and established precedent, the administrative judge's decision in the proceeding matter was arbitrary, capricious, [00:01:14] Speaker 01: abuse of discretion, otherwise not in accordance with the law, and or unsupported by substantial evidence. [00:01:20] Speaker 02: So there are a lot of moving parts here, and I have some very specific questions, so I'm just going to get to them. [00:01:25] Speaker 02: I think the government in its brief conceded that there was at least some error in what you call reprisal number two, or I'm calling reprisal number, the cancellation of the chief nurse for advertisement position, in that it was clear that Dr. Dearing did know of that. [00:01:44] Speaker 02: And so that satisfies the knowledge timing test, and it should have switched to be the government's burden. [00:01:50] Speaker 02: I know they have some arguments on why we can affirm based upon the evidence. [00:01:55] Speaker 02: I assume your argument is, this one to me seems pretty simple, is that we can't do that fact finding. [00:02:01] Speaker 02: That has to go back. [00:02:02] Speaker 02: Correct, Your Honor. [00:02:02] Speaker 02: OK. [00:02:03] Speaker 02: That's actually, I believe, one of the central arguments of this case. [00:02:06] Speaker 02: Sure. [00:02:07] Speaker 02: I mean, that one seems pretty clear. [00:02:09] Speaker 02: I know the government's going to say we don't have to do that, but that's fine. [00:02:12] Speaker 02: We can talk about that. [00:02:13] Speaker 04: On that point, if you're going to move on to the next one, what's the relief? [00:02:17] Speaker 04: Let's assume that's the only thing left standing in this case. [00:02:21] Speaker 04: And even assuming it goes back to the board and the AJ changes his view, what relief would endure? [00:02:29] Speaker 01: So if this court were to find that indeed she met the prima facie case for whistleblower retaliation and the agency could not meet a clear and convincing evidence for that personnel action, then the relief would be she would be paid the higher rate [00:02:47] Speaker 01: for the Chief Nurse for a position from the time period that it was taken back by the agency, which was in November 2015. [00:02:56] Speaker 01: What's the basis for that? [00:02:58] Speaker 01: Because the basis is that if the retaliatory act took her out of that position, then they would have to put her in the same exact position. [00:03:08] Speaker 02: But she was never put in that position in the first place. [00:03:10] Speaker 02: This is the cancellation of the advertisement for the position. [00:03:13] Speaker 01: Well, this is actually the cancellation of the interview process. [00:03:17] Speaker 01: They advertised the position and decided not to fill it. [00:03:19] Speaker 02: But how would she get the pay if she'd never been appointed to it? [00:03:22] Speaker 02: Wouldn't it just be a reconstruction of whether she could have gotten the position and would have been appointed if the advertisement had gone through? [00:03:30] Speaker 02: Well, she was universally considered the most qualified candidate. [00:03:34] Speaker 02: Sure, but don't they have to make that decision before they jump to what you say is back pay? [00:03:40] Speaker 02: Well, yes. [00:03:40] Speaker 02: We believe that they would make that decision. [00:03:44] Speaker 02: Okay, I have a couple other very specific things that I'm a little troubled about the way the AJ handled them, but I'm not sure about what's happening here. [00:03:54] Speaker 02: So, the August 20, 24th response by [00:04:00] Speaker 02: by Ms. [00:04:01] Speaker 02: Potter to the OIG. [00:04:03] Speaker 02: The AJ found that that wasn't a protected disclosure. [00:04:08] Speaker 02: Correct. [00:04:09] Speaker 02: So I'm a little confused about this, and maybe you can help me with the record, because did you plead this as a disclosure under B-8 to the special counsel or as cooperation with the [00:04:23] Speaker 02: with the OIG under B-9. [00:04:26] Speaker 02: We planned it as under B-9 in cooperation with the OIG. [00:04:29] Speaker 02: But the AJ found it as insufficient because you didn't disclose what you disclosed. [00:04:36] Speaker 02: Well, he sort of took both routes. [00:04:39] Speaker 02: Well, I guess I'm not trying to secure anything here. [00:04:42] Speaker 02: Let me cut to the chase. [00:04:43] Speaker 02: I don't understand if you pled it properly under B-9 why you have to explain what your disclosure was, because that's a B-8 problem. [00:04:53] Speaker 02: All you have to show is that you cooperated with the OIG. [00:04:56] Speaker 02: So why isn't disclosure for, I know these are questions for the government, but I just want to get them out there. [00:05:00] Speaker 02: Why isn't disclosure for protected activity without detail of what was disclosed? [00:05:08] Speaker 02: We believe that's an excellent question, Your Honor. [00:05:11] Speaker 02: My follow-up question to you, though, is does it matter? [00:05:14] Speaker 02: Because it seems to me that throughout here, there's not been any showing, at least in the relevant time frames, that the decision makers for these various events specifically knew about her OIG activities. [00:05:27] Speaker 02: I'm sorry, can you repeat the question? [00:05:29] Speaker 02: Even if we agree that the AJ erred, or even if I find that the AJ erred in requiring further detail, that just the mere description of OID cooperation is sufficient, you still have to meet the knowledge part of the knowledge timing test. [00:05:45] Speaker 02: And what evidence in the record shows that anybody knew about her August 2014, [00:05:52] Speaker 02: conversations with the OIG or really any conversations with the OIG? [00:05:56] Speaker 01: Well actually the record is replete with evidence to show that Dr. Dearing and Dr. Venditti had knowledge of OIG activity. [00:06:03] Speaker 01: The July 14th [00:06:04] Speaker 01: 2010-2014 email showed evidence that she was communicating with the OIG. [00:06:11] Speaker 01: She also had a meeting with Dr. Deering thereafter, which discussed the specific information she provided to the OIG. [00:06:19] Speaker 01: What's the date of that meeting, and is that in the record? [00:06:22] Speaker 01: It's in the record. [00:06:23] Speaker 01: I believe it was after July 10th, 2014 email. [00:06:28] Speaker 01: I cannot give you the specific day of the meeting, but it's definitely in the record that they met and discussed specifically what she provided to the OIG regarding emails and in testimony. [00:06:39] Speaker 01: And was that before the dates of all the various alleged reprisals? [00:06:44] Speaker 01: That was after the date of the March 2015 change in title. [00:06:49] Speaker 01: but before the 2015 non-selection and before the January 2017 detailed unclassified duties and before the March 2017 involuntary resignation. [00:07:01] Speaker 02: So your view is if the AJ applied the wrong legal standard there and requiring sufficient detail for the disclosure. [00:07:08] Speaker 02: You said you pled that as a B9 thing in your OSC complaint. [00:07:12] Speaker 02: Do you have a record site for that? [00:07:14] Speaker 01: I do not at this time, but I can get you one on rebuttal. [00:07:17] Speaker 02: OK. [00:07:19] Speaker 02: The other one. [00:07:21] Speaker 02: Let me move on to another kind of point. [00:07:27] Speaker 02: I'm talking now about the involuntary resignation. [00:07:31] Speaker 02: And the AJ said that you didn't establish a prima facie case because this was not involuntary. [00:07:37] Speaker 02: I don't mean resignation. [00:07:38] Speaker 02: I mean transfer. [00:07:40] Speaker 02: That this wasn't a prima facie case because the transfer was voluntary. [00:07:45] Speaker 02: And I'm a little confused about why the voluntariness of the transfer makes any difference to establishing the prima facie case. [00:07:56] Speaker 02: Well, right, because she had a transfer, which is a covered personnel action under A2. [00:08:03] Speaker 02: And it doesn't say that it's an involuntary transfer. [00:08:09] Speaker 02: It just says transfer. [00:08:10] Speaker 02: And assuming you have knowledge of a protected activity, either disclosure [00:08:15] Speaker 02: or cooperation in time with that transfer, wouldn't that meet the prima facie case? [00:08:20] Speaker 02: Yes, it should have met the prima facie. [00:08:22] Speaker 04: Let me just make sure I understand. [00:08:23] Speaker 04: I thought the transfer came at her request. [00:08:26] Speaker 04: I thought she applied. [00:08:28] Speaker 04: It was not something that was not an action taken against her inaction. [00:08:34] Speaker 01: It was a transfer at her request due to the actions of the agency. [00:08:39] Speaker 01: She did not want to transfer out of the VA, but because of the agency's actions and the position they put her in, she had no choice. [00:08:45] Speaker 01: And the case law states, Perlman as well as Guzman as well as [00:08:52] Speaker 01: Heining states that if it transfers involuntary due to the agency's action in response or in retaliation to the whistleblowing, it becomes a constructive involuntary resignation due to the statute. [00:09:04] Speaker 04: Right. [00:09:05] Speaker 04: And AJ looked at that and said, you would have to show, therefore, that the working conditions were intolerable. [00:09:16] Speaker 04: Correct. [00:09:17] Speaker 04: And that they would force her to leave. [00:09:20] Speaker 02: And we believe we had, and we believe we've... I get that. [00:09:24] Speaker 02: I'm asking, I think, a slightly different question, and it really ends up who bears the burden of proof on this issue is whether that involuntariness doctrine actually applies to transfers. [00:09:35] Speaker 02: Because the cases I looked at, it was the involuntariness doctrine was basically when somebody [00:09:41] Speaker 02: resigned or retired. [00:09:43] Speaker 02: And therefore, they use that to find it to be an action under Chapter 75, like a removal or something. [00:09:50] Speaker 02: Whereas here, there's no question that there's an actual personnel action. [00:09:54] Speaker 02: It's a transfer that happened within a certain amount of time under the statute. [00:10:00] Speaker 02: And so I don't see anything in the plain language of the statute that requires, in order for you to make the permit-based case for the transfer to be [00:10:07] Speaker 02: involuntary rather than just a transfer. [00:10:10] Speaker 02: Now, the voluntariness is going to come up. [00:10:12] Speaker 02: And here's what I'm getting at is, whose burden is it? [00:10:16] Speaker 02: And who bears the burden of showing that that transfer wasn't caused by whistleblower or preisel? [00:10:24] Speaker 02: Is it your burden initially, or do you just make the prima facie case by having a transfer within a certain time of knowledge, and then the burden shifts to the government? [00:10:33] Speaker 02: to show that the voluntariness of the transfer shows that it was a reprisal. [00:10:38] Speaker 02: Exactly. [00:10:39] Speaker 02: That's exactly what it is. [00:10:40] Speaker 02: Once you meet the prima facie case, of sure. [00:10:42] Speaker 02: Did you argue that? [00:10:43] Speaker 02: I mean, because this seems to me a fairly nuanced point, and I didn't see you specifically argue that in your blue brief. [00:10:51] Speaker 01: I believe it was in the gray brief. [00:10:53] Speaker 01: What we argued was that with Guzman and the serious events over a span of years, so we met the prima facie case through A, [00:11:01] Speaker 01: the December 1, 2016 OIG disclosure. [00:11:04] Speaker 01: And then once we met, the prima facie case for that, the burden shifted. [00:11:08] Speaker 02: OK, so let's stop with that line. [00:11:12] Speaker 02: The problem I have with this is the same problem you have with reprisal number three, is that the board found that Dr. Nelson, or Ms. [00:11:20] Speaker 02: Nelson, had no knowledge of any of these disclosures because she came in after all that happened. [00:11:25] Speaker 02: Wouldn't that same logic apply to the transfer decision? [00:11:29] Speaker 01: That's actually not accurate. [00:11:31] Speaker 01: The board found that she did not have knowledge of disclosures one, two, and three, because she came in after those three disclosures. [00:11:40] Speaker 01: But she was at the agency for disclosures four and five, which was the December 1, 2016 OIG disclosure. [00:11:48] Speaker 01: I'm sorry, the November. [00:11:49] Speaker 01: Well, she might have been there, but did they find that she had specific knowledge of her identity? [00:11:53] Speaker 01: Well, the board found that she did not have specific knowledge. [00:11:56] Speaker 02: But again, that's an evidentiary point. [00:11:59] Speaker 02: So we can get into that. [00:12:00] Speaker 02: But wouldn't that same reasoning apply to reprisal four? [00:12:04] Speaker 02: If she didn't have knowledge for reprisal, for the detail reprisal, alleged reprisal, then wouldn't the similar argument apply to the transfer reprisal? [00:12:15] Speaker 01: Well, it would if, again, we believe that Ms. [00:12:17] Speaker 01: Nelson was not actually the responsible management official that made the decision. [00:12:22] Speaker 01: to details of unclassified duties. [00:12:23] Speaker 02: That's a different argument, though. [00:12:24] Speaker 02: I want to focus in on Ms. [00:12:25] Speaker 02: Nelson. [00:12:26] Speaker 02: And if we find that she was the decision maker and the board's decision that she didn't have knowledge that's supported by substantial evidence, then we don't have to reach this tricky issue about involuntary voluntariness on the transfer. [00:12:40] Speaker 01: Well, I would disagree with that on one point. [00:12:42] Speaker 01: And I would bring in the case of Guzman, which is for the contributing factor test. [00:12:48] Speaker 01: You can look at a series of events over a span of years to look at the contributing factor test for a prima facie case. [00:12:55] Speaker 01: And Ms. [00:12:56] Speaker 01: Nelson, even though she only had knowledge of the fourth and fifth disclosure, I'm sorry, the fifth disclosure, Dr. Smith, who was also CC'd on that memo and who we argue was the actual [00:13:08] Speaker 01: the decision personnel individual that was responsible for the unclassified duties had been at the agency over this time frame and was knowledgeable of all of the protected disclosures that we put forward. [00:13:21] Speaker 01: And if there are no further questions, I'd like to reserve the rest of my time for rebuttal. [00:13:44] Speaker 00: May it please the court. [00:13:45] Speaker 00: Ms. [00:13:46] Speaker 00: Potter sought a promotion from the position of nurse. [00:13:48] Speaker 02: Do you want to start with the one you confessed error on and suggested that Dr. Deering did have knowledge and explain why you think we can affirm based upon alternative grounds? [00:14:00] Speaker 02: Because it seems to me you're requiring us to make factual findings on the record based upon a standard that the board didn't do. [00:14:08] Speaker 00: No, Your Honor. [00:14:09] Speaker 00: Our understanding is that the court may affirm, as it discussed in McCarthy v. MSPB, [00:14:14] Speaker 00: the MSPB's decision on grounds other than those relied on when the MSPB rendered its decision, when upholding that decision does not depend on making a determination of fact not previously made by the [00:14:26] Speaker 00: the MSPB. [00:14:28] Speaker 02: Yeah, but this is a book. [00:14:30] Speaker 02: What the MSPB found was she didn't meet her burden to show certain factors under the Rumsey analysis. [00:14:38] Speaker 02: And you're asking us to transfer that to your burden under Carr, which is not only a different switch of parties. [00:14:46] Speaker 02: And one party can fail to meet their burden, and it doesn't mean that the other side necessarily wins. [00:14:51] Speaker 02: It's like summary judgment. [00:14:52] Speaker 02: You both could lose. [00:14:54] Speaker 02: But you have an even higher burden under CARS, so I don't understand how we can affirm this. [00:14:59] Speaker 02: This one seems like it has to go back for a determination of whether the government can show that it would have taken that action even with the prima facie case on that disclosure. [00:15:11] Speaker 00: You want to re-disagree because we are looking only at the facts found by the MSPB, not a consideration of the burdens and the specific Rumsey factors. [00:15:21] Speaker 00: The facts that the [00:15:23] Speaker 00: MSPB found to apply in the Rumsey considerations were that the agency's reasons. [00:15:32] Speaker 00: That didn't require a consideration of burden. [00:15:35] Speaker 00: The MSPB simply looked at the reason that Dr. Deering did not select. [00:15:42] Speaker 02: Again, the problem with that is, even if we accept all those as factual findings, those were factual findings made to determine that she had made her burden. [00:15:51] Speaker 02: You're asking us to determine, for the first instance, whether those factual findings would support a much higher clear and convincing evidence burden. [00:16:00] Speaker 02: And I don't understand how that's an evidentiary determination we can make. [00:16:04] Speaker 00: The specific, there is no, in this case, we believe that McCarthy explains that this can be done in this situation. [00:16:14] Speaker 03: But McCarthy and Kaminsky, both of which you cite, [00:16:18] Speaker 03: had the court deciding on appeal here a question of law where there were no undisputed facts. [00:16:25] Speaker 03: You're asking us to decide a question of fact. [00:16:28] Speaker 03: I mean, because what you're asking us to decide, which the agency never did, is whether you established by clearing convincing evidence that you would have taken the same action. [00:16:36] Speaker 03: That's a fact question. [00:16:38] Speaker 03: And that seems to me to be a really big distinction between McCarthy and Comiskey in this case. [00:16:43] Speaker 00: Well, Your Honor, we think that [00:16:45] Speaker 00: that the administrative judge did make findings of fact that can be put into the court's consideration. [00:16:52] Speaker 03: You think that the administrative judge made findings of fact from which we could find a fact? [00:16:58] Speaker 00: No, not that you can find a fact. [00:16:59] Speaker 00: Simply that you could determine whether the MSPB's decision [00:17:09] Speaker 00: finding that corrective action is not warranted is supported. [00:17:12] Speaker 03: What has to be determined is whether there's clear and convincing evidence that you would have taken the same action regardless of Ms. [00:17:20] Speaker 03: Potter's whistle-blower. [00:17:21] Speaker 03: Clear and convincing evidence that you would have taken the same action. [00:17:25] Speaker 03: I don't see that fact-finding anywhere in the lower tribunal's decision. [00:17:31] Speaker 00: Well, Your Honor is correct that the MSPB considered [00:17:37] Speaker 00: the facts in Rumsey under preponderant evidence. [00:17:41] Speaker 02: But isn't the decision whether the agency would have taken that action a factual question? [00:17:47] Speaker 02: And the AJ didn't make that decision. [00:17:49] Speaker 00: Whether the agency would have taken that. [00:17:51] Speaker 02: Would have taken the same action absent the protected activity. [00:17:54] Speaker 02: That's a factual question, isn't it? [00:17:57] Speaker 00: It is a factual question, but I think the question here is, [00:18:01] Speaker 02: I mean, the gist of it is, I don't want to beat a dead horse, is you're saying, sure, there's a lot of underlying factual things that we could then use to make that ultimate factual determination. [00:18:12] Speaker 02: That's still a factual determination that the board did not make. [00:18:16] Speaker 02: It did not make an alternative. [00:18:18] Speaker 02: If the board had made an alternative finding here saying, well, no prima facie case, but even if there was, the agency has shown, then sure, you might be there. [00:18:26] Speaker 02: But there is no finding by the board that the agency would have shown [00:18:31] Speaker 02: By clear and convincing evidence, I don't have taken the action. [00:18:34] Speaker 02: Is there? [00:18:35] Speaker 00: I don't believe so. [00:18:38] Speaker 02: Can you address, before we move on from this, the remedy? [00:18:41] Speaker 02: Because I'm a little confused, too, as to what's going to happen here. [00:18:45] Speaker 00: Well, in this case, the remedy, I think, as Your Honor mentioned, a potential reconstruction of whether Ms. [00:18:56] Speaker 00: Potter would have been [00:19:00] Speaker 03: Awarded that one that reconstruction only takes place if the court if the MSPB then Does the fact-finding and concludes that the government can't prove by clear and convincing evidence, right? [00:19:10] Speaker 03: That's correct. [00:19:11] Speaker 03: So so there's still that whole hurdle We're not getting to remedy because the lower tribunal hasn't decided liability first correct Okay, but then if they do you think they reconstruct the process is? [00:19:23] Speaker 03: what the remedy would be. [00:19:24] Speaker 00: I'm not certain, Your Honor, what the way that the MSPB would consider the remedy in this case. [00:19:31] Speaker 00: It's interesting that Ms. [00:19:32] Speaker 00: Potter has claimed that what she is entitled to is back pay retroactive to April 2012, two years prior to her first alleged whistleblowing activity. [00:19:43] Speaker 00: And what she's seeking is basically a promotion from Nurse 3 to Nurse 4, despite the fact that the nursing service had determined that [00:19:51] Speaker 00: Position and purchased care lacked the complexity required for such an upgrade there was also required a consideration by the nursing board as to whether that position had the required complexity to Be elevated to know that goes to remedy right correct We would you don't need to argue that to us because we aren't deciding that correct or these are things that also would come into the the consideration in fact um there's a discussion by the [00:20:19] Speaker 00: by the administrative judge of the fact that Mr. Grippen and Dr. Dearing had discussed the fact that there were questions about who, even if they were trying to create a nurse for position, how that reporting relationship would be structured. [00:20:37] Speaker 00: Because a nurse was generally reporting to a doctor, and in this case they would be equivalent. [00:20:44] Speaker 00: And so there was discussion [00:20:46] Speaker 00: about the reporting lines. [00:20:48] Speaker 00: And that is Dr. Dearing's explanation as to why he canceled the vacancy. [00:20:55] Speaker 00: So those are things that the administrative judge would consider again. [00:21:00] Speaker 02: Can I move you on to the disclosure or the August 2014 [00:21:11] Speaker 02: the August 20th, 2014 response to OIG that the AJA found not to be protected or not established. [00:21:21] Speaker 02: First, do you agree that they pled this as a B9 to the OSC? [00:21:26] Speaker 02: Do you know? [00:21:27] Speaker 00: Your Honor, I'm taking a look at the OSC complaint. [00:21:29] Speaker 00: I don't see any specific [00:21:32] Speaker 00: nine or eight mentioned. [00:21:34] Speaker 02: Well, if they didn't do it, do they have to do it specifically as B8 and B8-9, or is it just this is something we did that qualifies as protected activity? [00:21:44] Speaker 00: I think it would certainly be helpful to have explained that. [00:21:47] Speaker 00: The OSC complaint is at appendix 432. [00:21:50] Speaker 00: And the administrative judge did, though, cite section [00:21:58] Speaker 02: No, I understand that the administrative judge cited B-9, but that's the problem is that he then cited B-9 and said it was insufficient because it didn't have sufficient detail. [00:22:08] Speaker 02: And I don't see what detail is required for a B-9 protected activity. [00:22:13] Speaker 02: It's just cooperation, the detail requirement. [00:22:15] Speaker 02: And some of this may be because these requirements are relatively new. [00:22:19] Speaker 02: The B-9 stuff just came into effect in, I think, 2013. [00:22:23] Speaker 02: And so there isn't a lot of board precedent. [00:22:26] Speaker 02: But why would you require details of the disclosure to OIG when what they're saying is a prima facie case of retaliation is just based upon the cooperation prong of B9, not the specific contents, which would be covered by BA? [00:22:41] Speaker 00: There is no description of cooperation. [00:22:43] Speaker 00: There is only a statement that Ms. [00:22:47] Speaker 00: Young reached out to Ms. [00:22:49] Speaker 00: Potter and said, call me. [00:22:51] Speaker 00: That doesn't show any cooperation, as we argued. [00:22:53] Speaker 00: cooperation would require some back and forth and something from Ms. [00:22:57] Speaker 00: Potter. [00:22:58] Speaker 00: But Ms. [00:22:58] Speaker 00: Potter did not include in her OSC complaint any specific discussion of cooperation. [00:23:08] Speaker 02: The August 20, 2014 response is not something from Ms. [00:23:12] Speaker 02: Potter back to OIG? [00:23:14] Speaker 00: No, it's not. [00:23:14] Speaker 00: It's an email where Ms. [00:23:16] Speaker 00: Young writes to Ms. [00:23:17] Speaker 00: Potter, call me. [00:23:18] Speaker 00: And that's the sum total of the email. [00:23:21] Speaker 00: And there is nothing further [00:23:23] Speaker 00: specifically described by Ms. [00:23:25] Speaker 00: Potter in her OSC complaint as to anything that followed that. [00:23:29] Speaker 00: And that's also what the administrative judge found, that there was no evidence of anything further. [00:23:34] Speaker 00: So for that reason, Ms. [00:23:36] Speaker 00: Potter has not demonstrated cooperation as required to show a prima facie case. [00:23:42] Speaker 02: And in addition, that email itself doesn't. [00:23:45] Speaker 02: I mean, so reaching out by the OIG doesn't show cooperation by the employee. [00:23:50] Speaker 00: No, Your Honor. [00:23:51] Speaker 02: OK. [00:23:53] Speaker 00: And we'd like to point out also that even if Ms. [00:23:54] Speaker 00: Potter was correct that that was sufficient to be cooperation, the MSPB also concluded that this wasn't a contributing factor because there was a lack of knowledge. [00:24:04] Speaker 00: Ms. [00:24:05] Speaker 00: Potter doesn't refute that. [00:24:06] Speaker 00: He noted that even if he had found a protected disclosure in her receipt of that email from OIG or some specific subsequent interaction that she had with OIG, the appellant did not show that anyone knew about [00:24:20] Speaker 00: either that email to OIG or any subsequent cooperation. [00:24:24] Speaker 00: So with regards to the duties change, Ms. [00:24:32] Speaker 00: Potter doesn't explain why the MSPP erred in explaining the agency's reasons and motives. [00:24:49] Speaker 00: Vendetti explained that Ms. [00:24:51] Speaker 00: Potter's title was only changed because the deputy nurse executive explained that the title reserved for nurse fours. [00:24:59] Speaker 00: It was confusing that it was being applied to a nurse three. [00:25:03] Speaker 02: In addition... This is the one instance where the AJ found the prima facie case established but found you rebutted successfully under the clear convincing standard. [00:25:14] Speaker 00: That's correct. [00:25:14] Speaker 02: And that's a substantial evidence thing for us. [00:25:16] Speaker 00: Correct. [00:25:18] Speaker 00: And for example, another part of the agency's reasons are that Mr. Grippen was reorganizing the administrative medicine service at the time, restructuring the leadership team, and that resulted in the creation of two nurse manager positions. [00:25:36] Speaker 00: And there's testimony from doctors Dearing and Venditti that Ms. [00:25:40] Speaker 00: Potter requested that. [00:25:42] Speaker 00: division of labor and wanted the workload to be reduced. [00:25:46] Speaker 00: So Ms. [00:25:47] Speaker 00: Potter's claim that she had leadership roles removed appears to have been from her own request. [00:25:56] Speaker 00: And as for the transfer to another VA facility, Ms. [00:26:06] Speaker 00: Potter requested that transfer. [00:26:08] Speaker 00: And she began looking for other employment opportunities [00:26:12] Speaker 00: in late 2016, yet the action that she says led her to look for other opportunities occurred in January 2017. [00:26:23] Speaker 00: So she was already looking for another job before the detail. [00:26:28] Speaker 00: And in fact, that detail was a beneficial thing. [00:26:33] Speaker 02: On that point, does the finding that Ms. [00:26:36] Speaker 02: Nelson had no [00:26:38] Speaker 02: knowledge of any of her protected activity with regard to the detail also apply, in your view, to the transfer, even if it was protected or would constitute a personnel action? [00:26:52] Speaker 00: Yes, Your Honor. [00:26:54] Speaker 02: There's nothing between January and March that suggests that Ms. [00:26:57] Speaker 02: Nelson learned of her protected activities? [00:27:00] Speaker 00: No, not that we're aware of. [00:27:02] Speaker 00: And also the December 2016 complaint, which is the only other action that's [00:27:07] Speaker 00: within the two-year period that the MSPB has recognized to fit within a knowledge timing test. [00:27:16] Speaker 00: There's no argument from Ms. [00:27:18] Speaker 00: Potter that anyone learned of her December 2016 complaint, which Ms. [00:27:22] Speaker 00: Potter did not include in the record before the MSPB. [00:27:27] Speaker 00: As for the January 17, 2017, detailed [00:27:37] Speaker 00: Ms. [00:27:37] Speaker 00: Potter was recognized as being a subject matter expert and having a great skill set. [00:27:44] Speaker 00: And this was the reason that the agency put her into a position where she could provide guidance to Ms. [00:27:52] Speaker 00: Nelson, provide reports that they had concluded that Dr. Duarte was not doing a good job providing. [00:28:00] Speaker 00: And Ms. [00:28:02] Speaker 00: Potter was put into a more elevated position [00:28:06] Speaker 00: to provide that information to Ms. [00:28:10] Speaker 00: Nelson. [00:28:11] Speaker 00: Ms. [00:28:12] Speaker 00: Potter has not explained why that detail was in some way a demotion or retaliation. [00:28:21] Speaker 00: When Ms. [00:28:21] Speaker 00: Potter claims that Dr. Smith and Mr. Bransky were aware of her whistleblowing activities and had pushed Ms. [00:28:32] Speaker 00: Nelson to take this step, [00:28:35] Speaker 00: The MSPB concluded that Ms. [00:28:37] Speaker 00: Potter had deduced no evidence that Bransky or Smith had any knowledge of her disclosures. [00:28:43] Speaker 00: So for that reason, the knowledge timing test can't be met at that point. [00:28:47] Speaker 00: And since I have run out of time, your honors have no further questions. [00:28:53] Speaker 00: We request that the court confirm the decision of the administrative judge. [00:28:57] Speaker 00: Thank you. [00:29:05] Speaker 01: OK, I'd like to go through a couple of points really quickly since I'm on a limited time. [00:29:10] Speaker 01: The first point is that the chain reduction does not state that this court cannot come to an opinion on whether, once a prima facie case was met, that a clear and convincing evidence burden was not met by the agency. [00:29:24] Speaker 01: What the chain reduction just simply states that this court cannot affirm [00:29:27] Speaker 01: the lower court's decision. [00:29:28] Speaker 01: But you can come to a decision, and we would hope that the evidence is. [00:29:32] Speaker 04: So you want us to not remand that to the AJ, but we should decide it here? [00:29:37] Speaker 01: No. [00:29:37] Speaker 01: I believe that it has to be remanded, but it could be remanded with the precepts of the opinion of this court. [00:29:42] Speaker 02: You want us to tell the AJ what to do? [00:29:44] Speaker 01: This court can determine that based on. [00:29:46] Speaker 02: I think you're asking for a little bit more than you're going to get, and probably unwisely so. [00:29:51] Speaker 01: Understood. [00:29:52] Speaker 01: Secondly, I'd like to argue that the [00:29:56] Speaker 01: And for the non-selection, the agency provides, or the respondent argues, that Dr. Dearing's email to human resources concerning the non-selection provides a compelling reason for the non-selection. [00:30:06] Speaker 01: However, compelling is not the standard of proof in this case. [00:30:09] Speaker 01: The DVA must show by clear and convincing evidence that they would have taken a personnel action despite mispossible activities. [00:30:16] Speaker 01: The DVA didn't provide any corroborating evidence, such as any emails between Dr. Dearing and nursing services regarding whom the position will report to, any meeting notes from subsequent meetings, [00:30:26] Speaker 01: regarding the supposed dilemma, nor any copies of reworded functional statement or resubmissions to Vissen regarding the reclassification of the position. [00:30:34] Speaker 01: All they provided was his simple statement that it needed reorganization. [00:30:38] Speaker 01: This is analogous to what the court stated in Whitmore when it said, it is entirely appropriate that the DVA bear a heavy burden to justify its actions, which it has failed to do so in this case. [00:30:48] Speaker 01: Finally, it is without dispute that from early 2014, the respondent was making concerted efforts to have the chief nurse war position classified [00:30:55] Speaker 01: through VISTA. [00:30:57] Speaker 01: Ms. [00:30:57] Speaker 01: Potter herself drafted a functional statement that was used to get the position classified. [00:31:01] Speaker 01: However, that all changed after the effects of the January 2015 OIG report became known and began reverberating through the agency, causing employment issues for the management involved. [00:31:15] Speaker 01: Then without justification, they canceled the Chief Nurse for a position. [00:31:19] Speaker 01: And for one year, four months, and four days, [00:31:21] Speaker 01: Even though every witness testified it always remained essential to the efficiency of the service, they did not repost it until the day that they found out Ms. [00:31:29] Speaker 01: Potter was resigning. [00:31:31] Speaker 01: On March 9, 2017, once they discovered that she was leaving the agency, they hastily moved forward to process that position and have it filled for recruitment. [00:31:40] Speaker 01: That is in your face blatant retaliation and it shows that the agency was retaliating against my client because they did not want her to have that position due to her whistleblower activities. [00:31:50] Speaker 01: And we believe that that should be considered in the totality of the circumstances analysis of Ms. [00:31:55] Speaker 01: Pollard's involuntary resignation. [00:31:57] Speaker 01: And Guzman states that a series of events over a series of time can be considered when a contributing factor test is considered. [00:32:06] Speaker 01: So even if you believe that Ms. [00:32:09] Speaker 01: Nelson was the personnel manager that was in control of putting her on a classified detail, [00:32:15] Speaker 01: You still can consider the events prior to Ms. [00:32:18] Speaker 01: Nelson coming to the agency to make a determination if the involuntary resignation included events prior to that time, which was the August 8th disclosure to the OIG, the August 20th cooperation with the investigation, including the July 10th email. [00:32:36] Speaker 01: Dr. Smith was at the agency that entire time. [00:32:40] Speaker 01: And she was the individual that put Ms. [00:32:42] Speaker 01: Potter on the unclassified duties. [00:32:44] Speaker 01: The testimony states that. [00:32:46] Speaker 01: Ms. [00:32:46] Speaker 01: Nelson simply says that she signed the document. [00:32:48] Speaker 01: She said that Dr. Smith and Mr. Baranski were the individuals that were responsible for the unclassified duties detail. [00:32:56] Speaker 01: And even the respondent doesn't actually give explanation on why there was an unclassified detail. [00:33:03] Speaker 01: They simply state that they wanted Ms. [00:33:05] Speaker 01: Potter to replace Dr. [00:33:07] Speaker 01: Durarte in the morning report, that's only one position, not the other three positions that she was asked to do. [00:33:14] Speaker 01: It is our argument that they placed those other three positions upon her to make her life so difficult at the agency that she was forced to leave. [00:33:21] Speaker 01: And that's why it should be considered as involuntary resignation. [00:33:24] Speaker 04: Thank you. [00:33:25] Speaker 04: We thank both sides. [00:33:26] Speaker 04: The case is submitted. [00:33:27] Speaker 04: That concludes our presentation.