[00:00:00] Speaker 02:
1-1701 Carlson versus DVA.

[00:00:04] Speaker 02:
Mr. Stewart, please proceed.

[00:00:07] Speaker 00:
Thank you, Your Honor.

[00:00:07] Speaker 00:
May it please the Court, Council.

[00:00:10] Speaker 00:
I, along with Frederick Sinkovich, represent Holly Carlson.

[00:00:14] Speaker 00:
Carlson was hired on September 11, 2011 and was appointed as an oncology case manager and registered nurse for the Department of Veterans Affairs, Central Iowa Health Care System and Hospital in Des Moines, Iowa.

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The facts of this case stem back to April of 2016.

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In April of 16, Carlson filed a see something, say something report outlining a denial of and delay in patient care, expressed concerns regarding a locked storage room with a crash cart, inadequate staffing, and specific concerns with her supervisor, Nicole Aldrich, Aldrich's training, and a specific patient issue regarding a denial of care by Aldrich.

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As well in April of 16, Carlson objected to her assignment within the VA and once again outlined inadequate staffing, lack of training, and her concerns with Aldrich.

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Thereafter, Carlson's work environment became hostile.

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In August of 16, the standard operating procedures that Carlson had been charged with was taken away from her and was taken over by Aldrich and was passed off as Aldrich's own work product.

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In March of 17, Carlson was directed to cease and desist any work she had assisted on and added to in a cancer policy for the VA facility.

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In April of 17, an investigation was started by Aldrich regarding Carlson for alleged unprofessional conduct.

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Aldrich failed to rate Carlson's performance in 2018 and additionally explored a disciplinary action against Carlson

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for discussing the issues she had with Aldrich's supervisor.

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Aldrich disallowed Carlson from attending a cancer committee meeting as well.

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Carlson lodged these complaints and concerns with delays in the VA's procedures regarding prescriptions and outlined the impact and issues that were caused by said delays.

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Shortly after, Carlson's supervisor, Finley, detailed Carlson for a period of 30 days.

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Aldrich extended the detail for an additional 30 days on two separate occasions.

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Aldrich further suspended Carlson for 14 days for alleged conduct unbecoming, performing duties outside of the scope of her employment, and detailing lack of candor.

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However, the suspension was later limited by Director Gayle Graham, and thereafter a settlement was reached on the suspension.

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Carlson was once again detailed in September of 2018,

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and relegated to the position of a secretary.

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In November of 2018, Carlson filed an individual right of action outlining that the VA took personnel actions against her in retaliation for her disclosure she made that were protected by the Whistleblower Protection Act of 1989 and the Whistleblower Protection Enhancement Act of 2012.

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Within her complaint, Carlson outlined the unsafe conditions that were created by Aldrich

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patient care issues, the harassment and details she was subjected to, and the committees and duties she was stripped of.

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The matter was then set in front of an administrative law judge, and the decision by the administrative law judge, which is on appeal today, found that Carlson made a protected disclosure and proved by preponderant evidence that her protected activity was a contributing factor in the personnel actions taken against her.

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However, the administrative judge found that Carlson was not subjected to a hostile work environment and that the VA had shown by clear and convincing evidence that it would have taken the same actions absent Carlson's protected activity.

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With that in mind, on appeal Carlson asserts two issues.

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The first, whether the administrative judge incorrectly determined that Carlson failed to prove she was subjected to a significant change in working conditions based upon the creation

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of a hostile work environment and that her work environment was not a covered personnel action.

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And second, whether the administrative judge incorrectly determined the VA showed by clear and convincing evidence it would have taken the same actions absent Carlson's protected activity.

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With regards to the first issue, we believe the evidence in the record before this court establishes Carlson was subjected to a hostile work environment that should be considered a covered personnel action.

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As this court is aware, there's a list of 11 qualifying personnel actions under the WPA, which include an appointment, performance evaluation, and a decision concerning pay with a broad category of any other significant change in duties, responsibilities, or working conditions.

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As this court has established, in determining if a hostile work environment has occurred, the court needs to address and review and examine all of the circumstances

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the frequency of the conduct and whether the conduct was physically threatening, humiliating or offensive.

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While Carlson submitted information and documentation to support her claim of a hostile work environment of being stripped of duties regarding the cancer committee, the SOP she had created failing to be rated for an annual performance rating and being placed on continuous details, the administrative judge found that said actions did not constitute a hostile work environment.

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However, these items caused a change to Carlson's duties, responsibilities, working conditions, and were repeated over the period of almost two years.

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We believe the hostile work environment claim is furthered by Carlson's abuse of authority argument.

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As cited to in our briefing, use of intimidation, threats of adverse employment action, and unfairly low performance ratings all constitute abuse of authority and further Carlson's argument for a hostile work environment.

[00:06:13] Speaker 02:
Council, this is Judge Moore.

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If I understand the law in this area correctly, you have to succeed, don't you, on both the hostile work issue, work environment issue, and the independent causation issue.

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Is that correct?

[00:06:25] Speaker 00:
That would be correct, Your Honor.

[00:06:27] Speaker 02:
So why don't you move to your independent causation issue?

[00:06:30] Speaker 02:
There seems to be evidence in the record, and we review all of this for substantial evidence, and there seems to be evidence in the record, for example, Finley and Versteeg, I'm not sure if I'm saying that name right, submitting memos to HR about their concerns over Carlson's conversations with Morton.

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that she might have crossed the boundary and could have caused a much needed oncologist not to be willing to join the VA practice there, and that was of great concern to them.

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That seems pretty clear in the record.

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So what do you think is wrong with that conclusion?

[00:07:14] Speaker 00:
I think in looking at the specific issue of causation,

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And the second issue that we've outlined today, I think the issue that fails for the VA, and I believe that Carlson is successful on, is whether or not similarly situated non-whistleblowers were treated similar to Carlson.

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So as CAR, this court obviously relied on CARS specifically, I believe in this case, there's no evidence to support that similarly situated

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employees who are non-Lisa blowers were treated similarly to Carlson.

[00:07:52] Speaker 02:
Well, I thought that Fouch at A223 submitted a declaration that she detailed other employees when they were subject to an investigation, and I thought she gave three specific examples.

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So in looking at those examples, Your Honor, I respectfully disagree with any statement by the VA that these are specific enough or are

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relevant enough to prove that they're similarly situated employees.

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If we look at the cases that we've cited in our brief, specifically Whitmore and Gadeski, which I believe the VA also relies on, the VA has to come forward with all reasonably pertinent evidence relating to this factor.

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And their failure to do so is that the agency's peril.

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So I do not believe based upon

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the statement in APPX 223 that this is sufficient.

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There are no specifics regarding these individuals, what these individuals were alleged to have done, or what the response from these individuals were.

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So I don't believe that the VA has met the

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met the similarly situated argument and the burden they have to meet in this case to prove that.

[00:09:13] Speaker 02:
So just to be clear, you are arguing you don't think Falchie's declaration is substantial evidence for the similarly situated individuals' fact-finding?

[00:09:25] Speaker 00:
That is correct, Your Honor.

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I don't believe there is substantial evidence within this record from any VA employee and any affidavit to support the notion that similarly situated employees

[00:09:36] Speaker 02:
What about all the HR employees who confirmed at pages 243-44 and 248 that it was standard policy to detail any employee who was under investigation?

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And that goes back to the argument that

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These are not specific enough.

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I have no idea, and based upon the record, this court would not know what those individuals did or were alleged to have done.

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But why do we need to know that?

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If the agency has a policy, which their HR specialists say they do, that anyone who is subject to investigation is temporarily detailed,

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which quite frankly seems reasonable, why isn't that sufficient?

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The agency has a policy.

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She was subject to an investigation at the time.

[00:10:22] Speaker 02:
So why isn't that enough?

[00:10:26] Speaker 00:
And if I can answer the question, then I'll save the rest for rebuttal.

[00:10:29] Speaker 00:
But Gadevsky outlines, and to answer your question, they have to be similar in all certain respects.

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And they have to be nearly identical.

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Based upon the affidavits we have here,

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I don't believe that there is sufficient evidence to prove that these individuals are nearly identical or are relevant in all specific aspects.

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There's nothing, there's no information indicating such.

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And with that, I would reserve the remainder of my time for rebuttal.

[00:10:55] Speaker 00:
Thank you.

[00:10:58] Speaker 02:
Okay.

[00:11:00] Speaker 01:
Ms.

[00:11:00] Speaker 01:
Vicks, please proceed.

[00:11:04] Speaker 01:
Thank you.

[00:11:04] Speaker 01:
Good morning and may it please the court.

[00:11:06] Speaker 01:
This court should sustain both of the board's findings that Ms.

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Carlson was not subjected to a hostile work environment and that the agency supported its temporary details of Ms.

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Carlson by clear and convincing evidence because both findings are supported by substantial evidence on the record.

[00:11:19] Speaker 01:
Now, I think it's really important to note that the administrative judge's opinion is extremely thorough and he goes overboard and bends over backwards to allow Ms.

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Carlson the chance to provide

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evidence to support her case.

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And she simply didn't do so.

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And now she comes before this court and asks the court to simply basically discount the ample evidence provided by the agency and reverse and remand.

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And I would respectfully submit that the court should decline that invitation and should instead uphold the board's determination

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which are based on careful consideration of the evidence actually presented and are therefore supported by substantial evidence in the record.

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I'd also like to briefly address what the court was just discussing with opposing counsel.

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perhaps even more evidence here for CAR Factor 3 than we sometimes see in these cases.

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And Ms.

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Fauci's declaration provides three examples of agency employees that she detailed during the fact-finding investigation and shows that this is what the agency does when there is an employee who is suspected of misconduct.

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The agency regularly details employees out, and that's enough to show that it treats employees the same whether they're whistleblowers or not, if they are suspected of misconduct that needs fact-finding in order to substantiate or not that suspected misconduct.

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The court also pointed to the affidavits of HR specialists, Heiss and Begielis, I think, who stated that this was the policy.

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Car factor three is the agency presented evidence under car factor three and the administrative judge appropriately found that car factor three could weigh in favor of the agency given that... Under the law, does the agency have

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to prove that there were, in fact, other similarly situated individuals and that, in fact, they were treated the same?

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What if there had been no similarly situated individuals?

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Would that have prevented the agency, for example, of being able to establish independent causation?

[00:13:52] Speaker 01:
No, Your Honor.

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As Your Honor is aware, the CARV factor test is a balancing test, and the agency is not under our compulsion to

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provide evidence on every factor and to weigh on every factor in order for the administrative judge to find in favor of the agency.

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Instead, the board weighs the evidence under each factor and makes a determination.

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So, yes, this court has held in the past that absence of evidence under CAR factor three means that that

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factor can simply fall out of the analysis and at most it will be neutral for the agency.

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Here though, that's not the case.

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We have ample evidence under CAR factor three that the agency details employees regardless of their whistleblower status when they are suspected of misconduct as Ms.

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Carlson was in both in the first detail with her contacts with Dr. Morton and the second detail which

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was to investigate findings of delay of patient care.

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The agency also provided ample evidence under CAR Factor 1 that it had strong reasons to place

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Carlson on these details, again, pointing back to the original memorandum from Ms.

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Finley, from Dr. Verspeeg, who had the same concerns as Ms.

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Finley about Ms.

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Carlson's contacts outside of the VA to the incoming oncologist and the supporting declarations from HR.

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And Ms.

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Carlson did not provide the board any reason to discount the reliability of this evidence.

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She offered no sworn statements or declarations.

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And she does not present this court with any reason to doubt the board's reliance on them either.

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So Ms.

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Carlson has not shown that the board's determination that the agency had strong evidence from Ms.

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Carlson's first detail.

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It's not shown that that is unsupported by substantial evidence on the record.

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Well, so even if I were to discount factor three and treat it as neutral, there was no contrary evidence, so at best it would be neutral.

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But the board found strong evidence on the strengths of the agency's evidence and then with regard to factor two, motivation to retaliate.

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they said that that only weighed slightly in Carlson's favor.

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So the board would still have substantial evidence for its decision even if the similarly situated whistleblower evidence was taken completely off the table.

[00:16:31] Speaker 01:
Yes, there has been case law that has found that the board's decision based on strong evidence under Car Factor 1 and a flight motive to retaliate

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and CAR factor three dropping out has been sustained.

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But again, in this case, CAR factor three has ample evidence to support it.

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And so going to dropping CAR factor three out of the analysis is not necessary.

[00:16:54] Speaker 02:
Well, I do have some concerns about the way Mr. Stewart would have us

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interpret car factor three, the level of specificity he would require in order to, for the board to be able to rely on the kind of evidence that was provided?

[00:17:16] Speaker 01:
Um, no.

[00:17:18] Speaker 01:
The, uh, this court, and I apologize that the name is, um, the name of the case is flipping out of my head right now, but this court has found that the exact circumstances of, um, each comparator does not need to be

[00:17:32] Speaker 01:
the same.

[00:17:32] Speaker 01:
It doesn't need to be identical as I think Mr. as my as counsel said, Mr. Stewart said, they just need to be similar enough for the for this court and the board.

[00:17:48] Speaker 02:
I guess I guess let me rephrasing my question.

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My question to you is, in this case, there was evidence prevent presented by Ms.

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vouch as well as two, I think at least two HR employees confirming that it was the standard practice to detail any employee who was under investigation.

[00:18:10] Speaker 02:
Isn't that, even if that's the only thing, isn't that enough to be the substantial evidence for similarly situated under CAR factor three?

[00:18:25] Speaker 01:
Yes.

[00:18:26] Speaker 01:
To answer your Honor's question directly, it is enough because it shows that this is what the agency does when someone is suspected of misconduct.

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Right.

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So they don't have to prove that the other people were in fact nurses exactly like Ms.

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Carlson or in Carlson or in exactly the same situation as she was.

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They can simply prove that they have a policy of treating all employees this particular way and that would be sufficient, right?

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They don't have to draw analogies to her in particular and her position and all of that.

[00:19:04] Speaker 01:
Right.

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The evidence is whether the agency deals with

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employees in a similar way as to the whistleblower at issue.

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And the agency here has presented the evidence that it is their policy to detail an employee who is suspected of misconduct and the misconduct needs a fact-finding investigation to detail them out of their home department

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during the pendency of that investigation.

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And in fact, Ms.

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Fouch went further than just saying we have a policy full stop.

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She actually did give some details with regard to the three employees that she had personally detailed during other investigations.

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Mr. Stewart would say she may have given some, but she didn't give enough information for us to know they're exactly situated in the same way as Ms.

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Carlson.

[00:20:01] Speaker 02:
How would you respond to that?

[00:20:04] Speaker 01:
I would say that Ms.

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Fauci's declaration shows that she details nurses under her supervision, regardless of their status as, of whether she knows their status as whistleblowers or not, when they are suspected of misconduct or if there is a risk to

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veteran care or a risk to the employee's peers.

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And so I would say that it is enough.

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It shows corroboration with the HR policy and it shows that Ms.

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Fouch takes this action in a neutral manner towards employees.

[00:20:39] Speaker 01:
I mean, I'm sure it doesn't feel neutral, but she applies the policy neutrally to nurses who are suspected of misconduct and details them when appropriate.

[00:20:55] Speaker 01:
So unless there are further questions about car factor three or the details, I can move on to the hospital work environment claim.

[00:21:08] Speaker 01:
And, you know, if there are any questions about that, I'm happy to answer it.

[00:21:14] Speaker 01:
But the board's decision here was consistent with the law and is supported by substantial evidence.

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analyzed only those allegations that Ms.

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Carlson had presented as constituting a hostile work environment and those allegations were, you know, related to her ability to work on certain cancer policies and her attendance at a cancer committee meeting while she was in fact detailed out of oncology.

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And the judge correctly analyzed those under

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paragraph 12 of 5 USC 2302A2A, which is the casual provision that Congress had provided after specifically enumerating 11 other agency actions.

[00:22:06] Speaker 01:
And he correctly found that these allegations that Ms.

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Carlson had put forth, which some of, two of which were supported, the office move and the denial of the cancer committee, he correctly found that those did not meet

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a significant change in working conditions as has been required to find a hostile work environment.

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They didn't have practical consequences for her job.

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And then he found that even taking into account the unsupported allegations, it didn't meet the significant change required under paragraph 12.

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His finding is based on careful consideration of the evidence and is supported by substantial evidence in the record and should be sustained.

[00:22:54] Speaker 01:
And unless there are any questions, which I'd be happy to answer, I submit that this court should sustain the board's decision.

[00:23:05] Speaker 02:
Okay.

[00:23:05] Speaker 02:
Thank you, Ms.

[00:23:06] Speaker 02:
Vicks.

[00:23:06] Speaker 02:
Mr. Stewart, you have some rebuttal time.

[00:23:08] Speaker 02:
Please proceed.

[00:23:09] Speaker 00:
Thank you, Your Honor.

[00:23:10] Speaker 00:
I first want to discuss the

[00:23:13] Speaker 00:
respond to the discussion of the similarly situated employees.

[00:23:17] Speaker 00:
If we look at the Gadeski case, which is a case that I believe both sides cited in their brief, this court outlined that the individuals in the employment situation must be nearly identical to those of comparative employees.

[00:23:35] Speaker 00:
In this case, we don't have that information.

[00:23:37] Speaker 00:
There's nothing before this court to outline or to show

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that these alleged similarly situated non-whistleblowers that these individuals are referring to or the VA is referring to were near the identical to that of Carlson.

[00:23:53] Speaker 00:
There's nothing outlining that, and there's nothing within this record.

[00:23:55] Speaker 02:
So what we have here... Tell me, for example, what it is that you think isn't there.

[00:24:00] Speaker 02:
What is it that you think nearly identical means, right?

[00:24:03] Speaker 02:
They don't have to be the same age as her, the same race, the same... They don't have to have all the same demographic characteristics.

[00:24:10] Speaker 02:
Do they necessarily have to be in exactly the same position she's in, or can they be in a related field?

[00:24:15] Speaker 02:
What is it you think nearly identical under the law means?

[00:24:20] Speaker 00:
So under Carroll versus Department of Health and Human Services, the court held that there was not error in finding that postal employees that worked in different modules under different supervisors were not similarly situated.

[00:24:32] Speaker 00:
So my belief is that these individuals have to be, have to one, have the same supervisor, have to two, complete the same duties and position, and three, have to have

[00:24:45] Speaker 00:
in this situation have to have completed or alleged to have done something very similar to that of Carlson to be a similarly situated employee.

[00:24:57] Speaker 00:
I believe under all the case file we've cited, it has to be nearly identical to the Gadeski point.

[00:25:03] Speaker 02:
And Ms.

[00:25:04] Speaker 02:
Fouch testified that the other

[00:25:08] Speaker 02:
three people were likewise RNs under her supervision, and that they likewise had created a potential risk to the veterans and peers, and that that's why she detailed them.

[00:25:22] Speaker 02:
So why isn't that sufficient?

[00:25:24] Speaker 02:
I mean, same supervisor, same position, same risk.

[00:25:29] Speaker 00:
Well, I think it comes down to, and I agree with your Honor's point on the first two, it comes down to the last point on what is the potential risk to veterans.

[00:25:38] Speaker 00:
I have no idea, my client has no idea and I don't believe the VA has any idea based upon the record we have here what the potential risk to veterans was and if that is similar to the alleged potential risk of veterans that Carlson committed.

[00:25:52] Speaker 00:
We don't know that based upon this record so I don't think we can allege it or outline and I don't think the VA can stand on these individuals being similarly situated because we don't know that information.

[00:26:03] Speaker 02:
Well, so Ms.

[00:26:04] Speaker 02:
Carlson was accused of delaying patient care.

[00:26:10] Speaker 02:
That was the subject of the investigation.

[00:26:13] Speaker 02:
Is that correct?

[00:26:14] Speaker 00:
That is correct.

[00:26:15] Speaker 02:
So delaying patient care was described by Ms.

[00:26:19] Speaker 02:
Fouch as being extremely alarming, and she was concerned because that puts veterans at risk.

[00:26:26] Speaker 02:
Sounds very, very serious.

[00:26:29] Speaker 02:
Is that fair?

[00:26:30] Speaker 00:
I think that is fair, but to the point we made in our brief, this instance dealt with an email regarding a prescription.

[00:26:39] Speaker 00:
That's what's cited to, that we believe in additional argument in our brief that was hearsay.

[00:26:46] Speaker 00:
This instance dealt with an email that occurred nine months earlier than when Carlson was detailed.

[00:26:54] Speaker 00:
So I think it's important and we make an argument of that in our brief.

[00:26:58] Speaker 00:
It's important that I also think that that argument lacks any teeth because of the delay in detail.

[00:27:07] Speaker 00:
So I believe to finish this topic, we believe there's not sufficient evidence within this or substantial evidence within this record to support the CAR factor three going in favor of the agency.

[00:27:19] Speaker 00:
In looking at car factor one, we believe for the similar argument we made regarding three, there's not substantial evidence within the record to support the finding of car factor one in favor of the VA.

[00:27:36] Speaker 00:
And if I may just finish briefly.

[00:27:38] Speaker 00:
Please go ahead.

[00:27:39] Speaker 00:
We believe on the overall record before this court that there's not substantial evidence to uphold the decision of the administrative judge.

[00:27:47] Speaker 00:
and we would ask that this Court reverse and remand this matter.

[00:27:51] Speaker 00:
Thank you.

[00:27:52] Speaker 02:
I thank both Councils.

[00:27:53] Speaker 02:
This case is taken under submission.

[00:27:55] Speaker 02:
Thank you.

[00:27:58] Speaker 00:
The Honorable Court is adjourned until tomorrow morning at 10 a.m.