Bennett S. Greenspan v. Department of Veterans Affairs Document 5

Court of Appeals for the Federal Circuit
Case No. 05-3302
Filed October 26, 2005

BRIEF OF PETITIONER BENNETT S. GREENSPAN . BY BENNETT S. GREENSPAN (PETITIONER ). SERVED BY MAIL ON 10/26/2005. FILED ON 10/26/2005 . (NON-CONFIDENTIAL) MAILED : 1/17/2007, CLERK'S LETTER TO COUNSEL FOR THE RESPONDENT REQUESTING A RESPONSE TO THE APPLICATION FOR ATTORNEY FEES AND EXPENSES. THE RESPONSE IS DUE ON OR BEFORE JANUARY 31 2007.

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Page 1 •e
WEST/CRS
No. 05-
i

IN THE UNITED

STATES
COURT
FOR THE FEDERAL

BENNETT
S. GREENSPAN,
)

Petitioner,
)
:
DEPARTMENT
:
AFFAIRS,
___._o_
)
vs.
OF VETERANS
)
..,. coU_ _" _Ccl_o_"
)
Be,1 '_ _ "_
)
Respondent.
Petition
i
CIRCUIT
)


OF APPEALS
for Review
Protection
Board
1_li_l_li_tlI
)
of the Merit Systems
in CH 1221010192-B-
BRIEF OF PETITIONER
BENNETT
S. GREENSPAN
Husch & Eppenberger,
LLC
Harvey M. Tettlebaum
Robert L. Hess II
235 East High Street, Suite Jefferson City, MO Phone: 573-635-Fax:
573-635-
Attorneys

for Petitioner
Bennett
S. Greenspan
Page 2 RECEI'.:, D
Form
AUG1 6
FORM9. Certificateof Interest
IJoi d Coutd pe
UNITED
STATES
COURT
Bennett S. Greenspan,
OF APPEALS
FOR THE
M.D.
FEDERAL
CIRCUIT
Department of Veterans Affairs
No.
CERTIFICATE
Counsel
for the (petitioner)
Petitioner Bennet_ S. Greenspan
if necessary):
1.
(appellant)
certifies
OF INTEREST
(respondent)
the following
(appellee)
(use "None"
The full name of every party or amicus represented
Petitioner Bennett S. Greenspan,
(amicus) (name of party)
if applicable;
use extra sheets
by me is:
M.D.
2.
The name of the real party in interest (if the party named in the caption is not the real
party in interest) represented by me is:
@
@
@
P_flfinn_=r
Ronn_ff
_
¢'_rA_n_n_n.
M D
3.
All parent corporations and any publicly held companies that own 10 percent or more
of the stock of the party or amieus curiae represented by me are: "
Nonp,
D
4. []
There
5.
The names of all law firms and the partners or associates that appeared for the party
or amicus
court
is no such corporation
now represented
as listed in paragraph 3.
by me in the trial court or agency
or are expected
to appear in this
are:
Hu__r.h & F,n.np.nh_.r0_.r
' I I _." .l_n_
Ibnemmnnd
Rnh_d
I
H_..q_q II. I nw_.l
Pp._mnn:
H_rw.y
M. TetUebaum / Pearson Law Offices: Lowell D. Pearson
August 15, Date
HARVEY H. TEYrLEBAUM
Printed name ofceunsel
0179932.
111
Page 3 REC"IVED
AUG 1 6 Z
Form
FORM9. CedificaleofInterest
!
UNITED
STATES
COURT
OF APPEALS
Benne_ S. Greenspan, M.D.
FOR
THE
FEDERAL
Department

CIRCUIT
of Veterans Affairs
No.
CERTIFICATE
Counsel
for the (petitione
Petitioner Bennett S. Greenspan
OF INTEREST
(appellant)
(respondent)
certifies
the following
(appellee)
(use "None"
(amicus)
(name of party)
if applicable;
use extra
sheets
if necessary):
1.
The full name of every party or amicus
represented
by me is:
Petitioner Bennett S. Greenspan, M.D.
2.
The name of the real party in interest (if the party named
party in interest) represented
by me is:
Poflfinn_r
RonnAfl
._
t_roonc=n_n,
in the caption
is not thereal
M F_

3.
All parent corporations
and any publicly held companies that own 10 percent
of the stock of the party or amicus curiae represented
by me are:
or more
None

4. []
There
5.
The names of all law firms and the partners or associates that appeared for the party
or amicus
court

is no such corporation
now represented
as listed in paragraph 3.
by me in the trial court or agency or are expected
to appear
in this
are:
HiJ__nh,R,IZnn_nh_roP..r,I I (2..l_n__ Dmmmnnd. Rnh_.rt I H_.____
II. I nwp.II D P_=r__nn;Harw.y
M. Tettlebaum / Pearson Law Offices: Lowell D. Pearson
I
Signature of counsel
Date

d.
Printed name of counsel
0179932.
ii
I I1
Page 4 Table of Contents
Certificates
of Interest ......................................................................................
Table of Contents
...........................................................................................
Table of Authorities
Statement
of Related
Jurisdictional

........................................................................................
Cases ............................................................................
Statement
..................................................................................
i
iii
v
vi
Statement
of Issues ..........................................................................................

Statement
of the Case ......................................................................................

Statement
of Facts ...........................................................................................

Summary
of Argument
Standard
Argument

II.

of Review
.......................................................................................
.......................................................................................................
The Merit Systems Protection Board Erred by
Considering
Whether Dr. Greenspan Acted
Disrespectfully,
Because He was Not Disciplined
by the Agency for Acting Disrespectfully
...............................

and Defamatory"
Comments
...............................
....................................................................................................
°..
0179932.

The Merit Systems Protection Board Erred in Entering
Judgment for the Agency, Because Substantial Evidence
Does Not Support its Decision that Dr. Greenspan's
Proficiency
Report Would Have Been Lowered Absent
His Protected Disclosures .........................................................
Conclusion

The Merit Systems Protection Board Erred in Entering
Judgment for the Agency, Because Substantial Evidence
Does Not Support its Decision that Dr. Greenspan Made
"Unfounded
III.
.................................................................................
I
35
Page 5 Addendum
.....................................................................................................

Certificate
of Service

Certificate
of Compliance
....................................................................................
.............................................................................
O
O
O
O
O
O
O
O
0179932.
iv
69
Page 6 O
O
D
Q
Table
of Authorities
Cases
Burroughs
v. Dept. of the Army, 918 F.2d 170 (Fed. Cir. 1990) ........... 31,
Gray v. AT&T
Corp.,
357 F.3d 763 (8 th Cir. 2004)
Haebe v. Dept. of Justice,
Mathews
v. Eldridge,
New York Times
Spencer
424 U.S. 319 (1976) ..................................................
Co. v. Sullivan,
376 U.S. 254 (1964) ....................
28-29,
111 (1997) .....................................
v. Dept. of the Navy, 62 M.S.P.R.
Gergick
v. Gen. Svcs. Admin.,
Hawkins
v. Smithsonian
43 M.S.P.R.
Inst., 73 M.S.P.R.
Rusin v. Dept. of the Treasury,
Q

92 M.S.P.R.
174 (1994)
..............................
651 (1990) ........................
397 (1997) ..............
298 (2002)
30,
18, 19, 20-
.............................

Authorities
5 U.S.C.
5 U.S.C.
5 U.S.C.
§ 1214 ...............................................................................................
§ 1221 ...............................................................................................
§ 7703 ...................................................................................
1, 18,
5 C.F.R. §§ 1201.113-...............................................................................
5 C.F.R. § 1201.120 ........................................................................................
5 C.F.R. §1209.5-.6 .........................................................................................
Webster's
0179932.
Decisions
Acox v. U.S. Postal Svce., 76 M.S.P.R.
Edwards

288 F.3d 1288 (Fed. Cir. 2002) ............... 22, 32-
v. Dept. of Navy, 327 F.3d 1354 (Fed. Cir. 2003) ..........................
Administrative
Other
.....................................
Revised
Unabridged
Dictionary,
© 1996 .....................................
V
I
2
Page 7 Statement
of Related
Cases
No other appeal in or from this proceeding
this Court or any other appellate
pending
directly
0179932.
in this
affected
Court
or any
by this Court's
court.
other
Counsel
Court
decision
vi
has been previously
does not know
that will
directly
in the pending
appeal.
before
of any case
affect
or be
Page 8 Jurisdictional
Dr. Bennett
Special
Counsel
corrective
dated
action
from the Merit
letter
S. Greenspan
§§ 1214(a)(3)
corrective
and
action
A6.
petition
A42.
5 C.F.R.
The Board
could
that
seek
relief
affirming
Order
to 5 U.S.C.
§ 7703; 5 C.F.R.
§ 7703(b)(1).

A49.
The
5 U.S.C.
a request
the Board
for
on December
law judge
issued an
of all of the claims
in the
filed a cross-
§§ 1201.113-.114.
the Initial
timely filed his Petition
5 U.S.C.
("Agency")
to
and the Department
issued
pursuant
filing
An administrative
5 C.F.R.
of
A49.
with
of the Initial Decision.
5, 2005.
pursuant
for
30, 2004, disposing
its Final
Affairs
or "Board").
the deadline
filed a petition
Office
him of his right to seek
("MSPB"
filed his appeal
A1. Dr. Greenspan
Court on August
has jurisdiction
Board
§1209.5-.6.
on September
for review
10179932.
timely
Dr. Greenspan
June 8, 2005.
he
and
from the U.S.
of Veterans
was 65 days from the letter date.
Initial Decision
case.
that

Dr. Greenspan
28, 2000.
Protection
him
a letter
30, 2000, notifying
the Department
Systems
informed
received
October
against
Statement
Decision
for Review
§ 1201.120.
on
in this
This Court
Page 9 Statement
I.
Whether The Merit Systems Protection Board Erred by
Considering
Evidence that Dr. Greenspan Acted Disrespectfully,
When He was Not Disciplined by the Agency for Acting
Disrespectfully?
Mathews
Hawkins
II.
of Issues
v. Eldridge, 424 U.S. 319 (1976)
v. Smithsonian
Inst., 73 M.S.P.R.
397 (1997)
Whether Substantial Evidence Supports The Merit Systems
Protection Board's Decision that Dr. Greenspan Made
"Unfounded
and Defamatory"
Comments?
New York Times Co. v. Sullivan, 376 U.S. 254 (1964)
Burroughs v. Dept. of the Army, 918 F.2d 170 (Fed. Cir. 1990)
O
O
III.
Whether
Substantial
Evidence
Supports
The Merit Systems
Protection Board's Decision that Dr. Greenspan's
Proficiency
Report Would Have Been Lowered Absent His Protected
Disclosures?
Gergick
20179932.
v. Gen. Svcs. Admin.,
43 M.S.P.R.

651 (1990)
Page 10 Statement
O
O
On or about
dismissed
decision
A96.
Dr. Greenspan
issued
its Opinion
The Board
appeal.
ordered
The Board
determine
that it would
leave, and lowered
the March
A115-16,
could
were protected
of that initial
15, 2003,
the AJ's
decision.
be granted
initial
a hearing
the proceeding
by
clear
and
cancelled
directed
that Dr. Greenspan's
under the Whistleblower
for lack of
On September
in the absence
¶ 29. The Board
("AJ")
on his
to first
convincing
Dr. Greenspan
of his disclosures
at
the AJ to assume
for
comments
at the March
Protection
Act ("WPA").
¶ 30.
30, 2004,
taken the three
actions
the proceeding,
21 and 22, 2004.
concluding
and the first phase
of the hearing
The AJ issued his Initial Decision
that the Agency
had shown
at issue absent Dr. Greenspan's
A6.
30179932.
Board.
prove,
rating
actions
for Review
have issued the reprimand,
of that proceeding
was held on January
September
filed a Petition
the AJ to bifurcate
Agency
law judge
personnel
that Dr. Greenspan
A115,
The AJ bifurcated
Q
of prohibited
and Order reversing
his proficiency
1 meeting.
the purpose
1 meeting
the
an administrative
Protection
authorized
whether
evidence,
O
appeal
with the Merit System
the Board
!
30, 2001,
Dr. Greenspan's
jurisdiction.
A105.
March
of the Case

protected
it would
on
have
disclosures.
Page 11 In concluding
evidence
adduced
comments
were "personal,"
"open
disrespect
also supported
further
by
about
A23.
Finally,
issues"
Dr. Greenspan
review.
decision.
reprimand

A I.
A3.
him
Dr. Greenspan
The
Dr.
and
Dobrin
Dr. Greenspan's
contacting
MSPB
issued
declared
Greenspan
now
Decision
was
the agency's
central
the proficiency
report.
conflict
resulted
A26.
to review
the Initial
Decision.
a final order denying
the petition
the Initial
Decision
as its final
Agency
decision
appeals
to lower
his proficiency
is not appealing
the cancellation

and constituted
Dr. Greenspan
scheduling
leave.
the MSPB
the MSPB
on
Greenspan's
The Initial
that
for lowering

40179932.
report.
that a legitimate
petitioned
On June 8, 2005,
Dr.
as a basis
Dr.
relies
The AJ ruled that this conduct
and directly
the AJ concluded
to cancel
A19-20.
from
that
and "inappropriate"
of his proficiency
testimony
clinical
the Initial Decision
demonstrating
"insulting,"
the lowering
in the decision
for
Agency
the chain of command
office
A42.
the
was proper,
for a supervisor."
describes
"jumping

the reprimand
the
report
score
of his leave.
to this
to
Court.
Page 12 A.
Appellant
Bennett
Appellant
Bennett
Director
Hospital
of Facts
S. Greenspan,
M.D.
S. Greenspan,
of the Nuclear
Veterans'
Statement
Medicine
Section
("Truman")
in
O
October

by Truman's
medical
staff.
was
forward
any issues
1998,
to "carry
the Chief
A317,
of Staff
of the
A527;
staff
and
also
1.9-14;
expressed
nepotism
and
appointment
A252,
perceptions
of her husband,
A336,
i "VISN"
stands
for
"Veterans'
Truman
is
a network
Hospital
was
of
VA
Ms.
unethical
of that position
staff
A316,
to
1. 23-25;
hospitals
designated
the
the
for VISN
CEO
Members
Crosetti
1. I-2;
engaged
based
Dental
15.
15 _.
in
on
the
Advisor
for
1. 10-15.
Network."
a particular
as VISN
leadership
of the medical
was
A322,
Service
within
members
regarding
as Chief
A337,
Integrated
numerous
activities
Crosetti,
1.15-25;
in the network
representative
of the medical
1. 1-5.
that
Richard
1.1-7;
to him
A326,
and/or
A330,
function
representative,
of Pat Crosetti,
their
the VISN.
"VISN"
staff
1. 16-25;
illegal
staff
In
1.1-4.
A325,
other
The
Memorial
A395-99.
of the hospital."
concerns
style
and Medical
S Truman
of medical
as a representative
as medical
expressed
a radiologist
Missouri.
1. 12-14.
A254,
management
A285,
Columbia,
to the position
1.23-25;
staff
was
at the Harry
to the management
his election
medical
qualities
elected
and
I. 1-6; A253,
After
O
he was
M.D.,
A9.
region.
A
The
Page 13 B.
Vote of No Confidence
In the fall of 1998,
Dr. Greenspan
which
and VA Site Visits
as his first act as medical
and Dr. Gary Parker,
was distributed
union president,
to the medical
staff
representative,
authored
a secret ballot
staff:
We, the full-time
medical staff of the Harry S. Truman VA
Medical
Center,
are
very
concerned
that
VISN-level
administrative
decisions are having an adverse impact on our
ability to provide medical care to our patients.
We believe that
going on record as a medical staff may have a beneficial effect
in improving our ability to provide medical care. Therefore, we
are asking for a vote of No Confidence
Ms. Crosetti, our VISN CEO.
A527;
A278,
margin
1.23-25;
A279, I. 1-4. The vote of No Confidence
of 50 to 7. A279,
Dr. Greenspan
activities
and
management
Office of Inspector
1998,
letters
had also raised his concerns
Ms.
of
passed
by a
I. 22-24.
prohibited
and
in the leadership
personnel
Crosetti
General
of mismanagement,
practices
on
the
to Congress,
VA officials,
A493-535.
In his October
(IG).
to the IG, Dr. Greenspan
complained
part
illegal
of
VISN
and the
VA's
and December,
that Ms.
Crosetti
was
D
engaged
Q
in nepotism,
25, A529-30.
VISN
contracting
He also raised
and the VA Canteen
investigation
by the IG.
not been communicated
irregularities,
a potential
Service.
A255,
conflict
A524-25.
1. 21.
and mismanagement.
of interest
involving
the
That complaint
prompted
an
The results
to Dr. Greenspan
A524-
of that investigation
at the time of the March
had
1, 1999,
Page 14 meeting.
A284,
whistleblower
management,
designated
friction
A281,
Dr.
between
the
1. I-3; A282,
hospital
1. 4-25;
staff
A283,
qualifications
and complained
of a lack of involvement
decisions.
A650-52.
VISN
management
with the VISN Chief of Staff.
A second
purpose
of this
management
A653-59.
site visit
visit
the
During
Ms.
in network
problems
was to have the elected
in monthly
conference
calls
A650.
occurred
and the medical
issues of
staff questioned
communications
staff
staff participate
was also
The officials
for
and the hospital
of the medical
a
VISN
1. 1-2.
Crosetti's
remedy
and
and address
of the medical
One
as
A641.
two site visits to identify
1. 7-24; A278,
Greenspan
1998, members
I

to the
the VA ordered
representative

IG
the first, in December,
between

The
as a result of his complaint.
In response
concern.
1. 11-23.
in February,
to review
negative
feelings
toward
Network
members
of the workforce."
A654.
A282,
communications
staff regarding
conducting
1999.
VISN
the visit found
leadership
and
The report further
between
policies
"very
1. 4-5.
The
VISN
and strategies.
strong,
heartfelt,
which
pervade
staff
stated:
Page 15 Part of the failure
of the hospital
staff to become
VISN supporters
stems, at least in part, from
perceptions
that she doesn't
seek or value the
opinions
of
the
staff
or
recognize
their
contributions.
Sincere comments were heard from

the majority
of clinicians
interviewed
often with
considerable
emotion.
It is important to note the
negative comments
were not limited to the more
contentious
staff.
A655-56.
C.
The March
1, 1999 Meeting
On March
Truman
(the
Ms. Crosetti's

1, 1999,
"March
A292,
was
1 meeting").
A280, 1.22-25;
words,
staff know the strategic
of the budget,
During
medical
personnel
A291,
direction
to have
staff representative,
which
1. 21-25;
a dialog
an open question
issues
A250,
with
and answer
voiced
he believed
our
session,
several
staff meeting
That
meeting
at
was
the vote of No Confidence
1. 1-2. The purpose
of the meeting,
and issues and let the medical
and the fiscal
and the management
practices
following
A281,
a medical
1. 8-15.
was "to hear concerns
1. 3-8; see also A249,
convened
attended
first visit to the hospital
and the site visits.
in Ms. Crosetti's
Ms. Crosetti
well-being,
we were going
or lack thereof,
to raise
....
1. 1-2 ("It was a meeting
leadership
of our
Dr. Greenspan,
concerns
were occurring
that
Network.").
as the elected
regarding
under
"
prohibited
Ms. Crosetti's
Page 16 direction.
A tape recording
the key portion
appears
Dr. Greenspan
and complaints,"
23-25.
things
in the transcript
had been
comments
was made,
he thought
of observations
useful for other people to know.
that a majority
of the staff was not pleased
run in the past
and
at A266-74.
began by stating that he had a "number
which
He stated
of Dr. Greenspan's
few years,
as reflected
A266, I.
with the way
in the vote
of No
O
Confidence.
A267,
1. 7-25.
Dr. Greenspan
input and lack of participation
needed
to change.
Dr.
Greenspan
preference
Services
A267,
jobs,
throughout
of interest
Director
for the VISN,
A270,
personnel
practices,
1-4. Finally,
of reprisals
5-15.
concerns
the merger
process
A269,
Chief Dental
Dr. Greenspan
1.21-25;
in the merger
the
nepotism,
also
loss
Service
A270,
as things
that
He identified
Canales,
official
referenced
as Ms.
of veterans'
and Nutrition
1. 1-6.
as Mayi
to a high-ranking
Dr. Greenspan
specifically
about
of the Canteen
was married
1. 7-13.
against
raised
issues inherent
Service.
been appointed
in the decision-making
the VISN.
conflict
to a lack of physician
1.25; A268, 1. 1-3.
also
citing
pointed
in the Canteen
other
Crosetti's
prohibited
husband
Advisor
for the VISN.
asserted
that there had been numerous
staff physicians
Business
had
A270, 1. 16-25; A271, 1.
and asked that the practice
stop.
instances
A271, 1.
Page 17 After
speaking
interrupted
A273,
for approximately
by Tom
1. 1-12.
Sanders,
Dr. Greenspan
three minutes,
Associate
replied,
Director
O
attempted
to direct
Thereafter,
several
various
clinical
A361,
A362.
Ms. Crosetti
broke
up
speaking,
A385;
issues
approximately
1.14-20;
became
Truman's
A313,
1. 10-14.
were "brutally
Campbell
hour
Dobrin,
A371.
blunt"
Dr. Dobrin
him how to behave
Mr.
A384,
after
visibly
A273,
raised
A352,
A358,
Dr.
Greenspan
Id.; A323,
1. 1-8.
Dr.
Greenspan
upset
1. 14-18.
concerns
A355,
and
about
A359,
criticized
The meeting
had
finished
and left the auditorium.
A276, 1.6-12.
to Ms. Crosetti.
A319, 1.1-5.
staff
besides
after the meeting,
Director.
comments
Dobrin
Philip
a half
hospital.
to point out there are
activities.
of the medical
physicians
Ms. Crosetti
Immediately
Hospital
to clinical
to Ms. Crosetti.
Other
when
Dr.
members
was
and we do need to correct,"
and/or the VISN management.
A275,
with
the discussion
of the Truman
"But I'm trying
some issues here that we do need to address
Dr. Greenspan
Chief
was called
of Staff,
They "chastised"
and
admitted
with Dr. Greenspan.
A370;
asked Dr. Greenspan
A371.
to
"if his mother
In a subsequent
proceed
"with

in to speak
Gary
Campbell,
Dr. Greenspan
Mr. Campbell
in public."
threatened
Dr. Greenspan
for his
that he and Dr.
A318,
1. 11-25;
had ever taught
letter to Ms. Crosetti,
further
actions"
against
Page 18
Dr. Greenspan.
A370.
Dr. Greenspan
the basis
A305,
basis
1. 24-25;
Neither
Dr.
Dobrin
nor
for any of the allegations
A306,
1. 1-2; A320,
for Dr. Greenspan's
1. 3-9.
comments
Mr.
Campbell
he made
at the meeting.
Mr. Campbell
was
"irrelevant."
asked
stated
A320,
that the
1. 20-24;
A321, 1. 1-3.
D.
Post-Meeting
Two weeks
to resign

O
Retaliation
later, on March
as the
elected
medical
Dr. Vincent
Alvarez,
Ms. Crosetti
was Dr. Alvarez's
the

site
Chief
staff
VISN
also stated that Dr. Alvarez
the monthly
16, 1999, Dr. Dobrin

representative,
Chief
no longer wanted
visit.
A307,
Greenspan
that
the hospital
Greenspan
remained
of
1. 11-25;
would
as the elected
at the
Staff.
direct supervisor.
of Staff conference
asked Dr. Greenspan
A309,
A309,
1. 3-5.
Dr. Greenspan
calls established
A308,
1. 1-16.
likely
experience
medical
request
of
1. 9-24.
Dr. Dobrin
to participate
in
after the December,
Dr. Dobrin
funding
staff representative,
told
cuts
Dr.
if Dr.
resulting
in

e
the loss of jobs.
He urged Dr. Greenspan
not to be the cause of that.
d.
E.
The Proposed Suspension
Defamatory
Statements"
On

A391.
March
Dr. Greenspan
22,
in
1999,
which
of Dr. Greenspan
Mr.
it was
Campbell
both
issued
proposed
I
for "Unfounded
a
and
memorandum
determined
and
to
that
Page 19 Dr. Greenspan
meeting.
be suspended
A368-69.
Because
memorandum,
Mr. Campbell
was rescinded.
A367.
to Dr. Greenspan,
"unfounded
A365.
O
"making
or defamatory,
had
submitted
on June 29, 1999, which
report,
VA
Dr. Lake
Medical
program
should
suggested
O
Center
executive,
instead
that
on the business
She also recommended
that
it
for one day for making
about a senior
number
statements,
VA personnel
this offense
VA official."
24 in the Agency's
which
or officials."
in the rescinded
an oral response
to the proposed
was heard by Carol Lake, M.D.,
Dr. Lake recommended
Dr. Greenspan
that
are
A424.
March
22,
A368-69.
Dr. Greenspan
Roudebush
in
Dr. Greenspan
or unfounded
other
cited
errors

dated March 31, 1999 was provided
to offense
false
about
explicitly
1999, memorandum.
notified
were defamatory
reference
at the March
procedural
that he be suspended
which
of Penalties,
The Agency
subsequently
proposing
This was a plain
Table
of numerous
A new document
statements
slanderous

for three days for his comments
in Indianapolis,
the proposed
receive
"positive"
Dr. Greenspan
and report
that he receive
ongoing
ld.

A342.
suspension,
disciplinary
be required
of medicine
Chief of Staff for
Indiana.
against
suspension
to attend
In her
stating
action.
Id.
a formal
on same to his peers,
mentoring
that
ld.
from a physician
Page 20 F.
The
Reprimand
Despite
Officer
this
and the designated
a formal
reprimand
A340-41.
The
March
recommendation,
31,
Kenneth
Deciding
to Dr.
Official
Greenspan
letter
incorporated
1999 notice
of proposed
Clark,
Chief
in Dr. Greenspan's
by letter
the
the
dated
following
suspension
Network
case,
September
17,
specifications
as the reasons
issued
from
the
for issuing
the
reprimand:
(1)
You
accused
Patricia
Network

CEO,
including
nepotism
A.
of
Crosetti,
specific
with
regard
VA
Heartland
illegal
activities
to
husband
her
and;
(2)
(3)
You
accused
Crosetti
of a conflict
of interest
regarding
program
Network
the consolidation
of the Food Production
with the VA Canteen
Service
since the
Business
Office
Director,
Ms.
Mayi
Canales,
is married
National
VA Canteen
to the Assistant
Service
In a very blunt and arrogant
Ms. Crosetti
of performing
practices
activities
(4)
Ms.
You
and
and;
bluntly
practices.
conducting
accused
You
asked
Ms.
her,
was
a personal
matter.

of the
and;
manner
you accused
prohibited
personnel
illegal
Crosetti
contracting
of
"I understand
were studying
for a Ph.D.
In what
Ph.D.?"
Dr. Dobrin interrupted
you
that
Director
You
unethical
that
you
area was
by saying
that
that
then
1999.
stated,
"I
Page 21 understand
ethical! ''
A365.
The letter of reprimand
about a senior
VA management
meeting
presented
were
manner."

that
A340-41.
were unfounded
number
24,
it was
concluded
official
Ethics
and
you
are
that Dr. Greenspan's
at the March
in a derogatory,
not
"statements
1, 1999, Medical
inflammatory,
and
inappropriate
This letter never stated that Dr. Greenspan's
or defamatory,
which
had
nor did it contain
been
the sole
basis
Staff
comments
any reference
to offense
for the proposed
discipline.
appeal
the
reprimand
was
subject

Appellant
has
constituted
a prohibited
G.
yearly
ID
The Lowered
During

contended
action
S.
Proficiency
Dr.
VA
Form
Greenspan's
10-2623a.
On August
immediate
supervisor,
Proficiency
1999.
Dr. Hoyt rated Dr. Greenspan
categories.
and stated
Id.
On August
that he intended
2 It should
be noted
misquoted.
See A272,
cannot
provide
that
Report
for the period
16,
Satisfactory"
contacted
the comments
to Dr. Greenspan
As this specification
a basis for discipline.
in all
Dr. Greenspan
Category
1.6-21.
1999,
completed
to lower Dr. Greenspan's
attributed
to
July 7, 1998 to July 7,
at "High
17, 1999, Dr. Dobrin

Dr. Greenspan
Dr. Greenspan's
A395-99.
that
Report
at Truman,
Reports,
Hoyt,
this
under the WPA.
his employment
Proficiency
Dr. Terry
throughout
V rating,
lacks a basis
for
are
in fact, it
Page 22 Personal
Qualities,
behavior
at the March
A643.
The
potentially
ranking
to "Low
latter
1 meeting
reason
illegal
and
VA officials.

and found that Dr. Dobrin

in the
activities
A397.
report because
1st meeting
was
really
regarding
concerns
also played
1. 3-11.
in the
Greenspan's
two
years
year were exclusively
Appellant
lowered
Dr.
has contended
in retaliation
prior
Report
Dr. Dobrin
with the Central
A301,
and
Office too much.
Greenspan's
disclosures
and
other
on September
his performance
contacts
ethics
the Central
to Congress
his Proficiency
Dr. Greenspan's
following

to Dr.
had lowered
proficiency
March
completed

received
to "Satisfactory."
Dr. Greenspan's
his
referred
of his comments
of
high-
A301, 1.5-11.
Dr. Greenspan

because
and for calling
prohibited

Qualities
Satisfactory,"
"that
rating
testified
outburst
of that activity
A299,
and government
a role in his decision.
ratings
on
for Personal
that he lowered
out of line."
Office
the
to the March
A300,
1 meeting
range.
in this appeal that his proficiency
at the March
of the WPA.

meetings,
of
1.7-10.
officials
Proficiency
in the "High Satisfactory"
for his comments
1,
1.4-14;
Reports
and
for the
A644-49.
report was
in violation
Page 23 Summary
The Merit
of uncharged
making
before
justified

the
is a separate
Agency
did not

charge
and relying
almost
evidence
report
score
disclosures.
of uncharged
sustaining
comments.
MSPB
would
the
that
the reprimand
Table
acting
of Penalties.
disrespectfully.
conduct,
The Agency
comments
By
Dr. Greenspan
of Dr. Greenspan
to introduce
were unfounded
The
Due process
"disrespectful"
failed
was
the MSPB violated
that it charged
the reprimand
allegedly
for
Disrespectful
right to due process.
offense.
that Dr. Greenspan's
The
with
uncharged
on
Dr. Greenspan
disrespectful.
the Agency's
the offense
decision
In fact, his comments

been
Greenspan
evidence
about the head of his VISN.
argued
prove
wholly
Dr. Greenspan's
had
and Dr. Greenspan's
The MSPB
reprimanded
the Agency
on evidence
with and not a different,
erred by considering
statements
under
Dr.
that the Agency
based
Agency
Greenspan
charge
its own precedent

MSPB,
Dr.
conduct
requires
The
Board
and defamatory
because
admiring
Retirement
misconduct.
unfounded
However,

Systems
of the Argument
was
nature
of
substantial
and defamatory.
were neither.
also
erred
have
The Agency
been
in finding
lowered
admitted
that Dr. Greenspan's
even
if he had not made
that it lowered

proficiency
protected
the proficiency
report
Page 24 score bec____aus_____e
of Dr. Greenspan's
whistleblowing
activities.
O
MSPB's
decision
was not supported
by substantial
O
Q
o
O
O
O
O
O
O
evidence.
As such,
the
Page 25 Standard
The
agency
Court
action,
abuse
shall
findings,
of discretion,
without
the record,
or conclusions
or otherwise
procedures
followed;
review
of Review
by
or (3) unsupported
that
not
required
hold
unlawful,
are "(1)
arbitrary,
in accordance
law,
rule,
by substantial
and
with
or
set aside
any
capricious,
an
law;
(2)
regulation
evidence."
obtained
having
5 U.S.C.
been
§ 7703.
Argument
I.
The
Merit
Whether
Systems
Dr.
Not
Disciplined
The
Agency's
Greenspan
March
with
about
VA official."
on which
making
the decision
v. Smithsonian
evidence
of
Systems
Protection
grounds
Board
tone,
manner
to whether
his statements
procedure
prejudiced
based
evidence
on
were
397,
charge
which
provides
(1997).
discipline
erred
by
and conduct,
"unfounded
were
The
See
Agency
considering
charged
grounds
Hawkins
cannot
offer
The
Merit
Dr. Greenspan.
testimony
all of which
is wholly
because
the decision
violation.
If this

Was
defamatory
the only
and defamatory."
O
He
notice
can be sustained.
to
of an uncharged
Because
suspension
statements
That
Considering
Disrespectfully.
proposed
the reprimand
Dr. Greenspan
by
Disrespectfully,
"unfounded
A365.
Erred
for Acting

73 M.S.P.R.
alternate
Dr. Greenspan's
31,
to issue
Inst.,
Board
Acted
by the Agency
Dr. Greenspan
a senior
Protection
That
is almost
Court
finds
about
irrelevant
unlawful
wholly
that
the
Page 26 MSPB
followed
an unlawful
aside its findings
and conclusions.
Navy, 327 F.3d 1354,
Before
evidence
manner
the
support
statements
to support
argument,
this
denied
where
Spencer
and set
v. Dept. of
arguing
counsel
its intent
for the ailegedly
Ms. Crosetti.
and
to exclude
A126-29.
prejudicial
evidence
made 'unfounded'
A143.
In support,
other than that contained
evidence,
"that does not
Dr. Greenspan
cited
from producing
in the charge.
This issue was again
for Dr. Greenspan
To
and 'defamatory'
that it barred the Agency
that motion.
to introduce
raised
The
in closing
urged the AJ to address
only the
charged.
The
testimony
Initial
because
Decision
relies
about Dr. Greenspan's
It concludes
his
"inappropriate,"
that
the
comments
Agency
at
almost
conduct
was
the
and "disrespectful."
wholly
on
hours
and tone to uphold
entitled
March
A19.

unlawful
Dr. Greenspan
irrelevant
in Limine
discipline
clear
he addressed
a VA official."
Hawkins,
AJ erroneously
made
that [Dr. Greenspan]
regarding
and discussed
evidence
of
filed a Motion
the charge
declare
§ 7703(2);
to reprimand
in which
admission
Dr. Greenspan
5 U.S.C.
the Agency
that it was entitled
prevent
it must
1357 (Fed. Cir. 2003).
the hearing,
disrespectful
offense
procedure,

to reprimand
meeting
of irrelevant
the reprimand.
Dr. Greenspan
were
It rules that "[o]pen
"personal,"
disrespect
Page 27 for a superior
warrants
sole
is not conducive
discipline."
issue
before
to a stable
A19-20.
Those
work
findings
the AJ - whether
the
atmosphere
and, therefore,
have nothing
comments
to do with the
were
unfounded
and
defamatory.
Due
charged.
given
process
dictates
that
A person
subject
to deprivation
notice
Mathews
of
v. Eldridge,
of due process
meaningful
Manzo,
the
case
the
against
is the opportunity
Mathews,
offense
charged
the Agency
discipline
such
and
an
by

U.S.
or property
opportunity
at
To be heard
evidence
irrelevant
on alternate
grounds,
the MSPB
to
(citing
must
be
respond.
time and in a
Armstrong
v.
manner,"
be able to rely on the
prepare
a defense.
to that charge
violated
offense
requirement
in a "meaningful
must
to adequately
to admit
the
"The fundamental
as Dr. Greenspan
by the Agency
bound
to be heard 'at a meaningful
380 U.S. 545, 552 (1965)).
employee
him
be
of liberty
424 U.S. 319 (1976).
manner.'"
a federal
Agency
In allowing
and sustaining
Dr. Greenspan's
the
right to
due process.
The
consider
Board
or sustain
notice of proposed
was
charged
with
has recognized
charges
adverse
being
this
rule
of law:
or specifications
action."
insolent

Board
that are not included
Hawkins,
and
"[T]he
73 M.S.P.R.
rude
to
his
at 401.
supervisor.
cannot
in the
Hawkins
The
Page 28 specifications supporting the charge described him as insubordinate. The AJ
found "that the agency had charged the appellant with being 'insubordinate
in that he was insolent and rude to his supervisor and refused to carry out
specific orders ....
'" ld. at 400-01.
The AJ erred, however,
the charge to include
insubordination.
Id. The court explained:
in construing
A charge of insubordination
is generally
not the
same as a charge of insolence and rudeness ....
The
agency's
standard
table of offenses
and
penalties
similarly
defines insubordination
as a
deliberate
and willful refusal to perform assigned
work,
but defines
insolence
as flagrant
and
contemptuous
disrespect.
An appellant's
conduct,
therefore, could constitute rudeness or flagrant and
contemptuous
to obey an
disrespect,
order or
but not a willful
perform
assigned
refusal
work.
Conversely,
one may willfully refuse to obey an
authorized
order or perform assigned work, but not
be disrespectful
or rude in doing so.
Id. at 401.
Inexplicably,
the Board
The Initial Decision
remarks
A19.
relies
were "inappropriate"
While
"disrespectful
the
Agency's
conduct,
about other personnel,"
charged.
A421.
failed to apply the law set forth
almost
exclusively
and "disrespectful"
Table
of Penalties
use of insulting,
abusive
that is not the offense
In effect,
on evidence
the Board
rewrote

that Appellant's
to uphold
sets
the proposed
the reprimand.
out
or obscene
with which
in Hawkins.
a charge
language
Dr. Greenspan
discipline
for
to or
was
notice
Page 29 to contain
Agency.
this charge
Because
in order to conform
the Board's
decision
to the evidence
presented
was based on an unlawful
by the
procedure,
it must be reversed.
II.
The Merit Systems Protection Board
for the Agency, Because Substantial
its
Decision
that
Dr.
Greenspan
Defamatory"
Comments.
An MSPB
relevant
B
evidence
the decision.
2002).
Court
The Initial
Decision
nature
to support
decision-makers
proposed
discipline
Immediately
with
Dr.
of Justice,
the
whole
burden.
288 F.3d
record
evidence
if there
1288,
to support
1298 (Fed.
to determine
whether
Clear
and
Convincing
Evidence
Statements
Were Unfounded.
only cursory
addressed
reference
comments.
were unfounded,
Indeed,
is
Cir.
the
Id.
of Dr. Greenspan's
one.
never
by substantial
mind might accept as adequate
makes
that the comments
evidence
meeting
reviews
There
Is No
Dr. Greenspan's
and defamatory"
B
v. Dept.
met its evidentiary
A.
finding
is supported
that a reasonable
Haebe
The
factfinder

decision
Erred in Entering
Judgment
Evidence
Does Not Support
Made
"Unfounded
and
that
to the "unfounded
It makes
as the Agency
the record
issue
That
is clear
no express
failed to produce
that
in March
the Agency's

when
the
was issued.
after the March
Dobrin
and
1 meeting,
Truman
Dr. Greenspan
Director

Gary
was called to a
Campbell.
They
Page 30 "chastised"
Dr.
Greenspan
for
Dr. Greenspan
was not asked
A306,
A320,
1. I-2;
comments
regarding
1. 15-19.
When
Ms.
nepotism
asked
behavior
the basis
1. 3-9.
never asked if the remarks
his
that
meeting.
A371.
A305,
1. 24-25;
for his comments.
Crosetti
were true.
regarding
at
was never
asked
A320, 1. 10-14.
the Canteen
whether
the
Mayi Canales
was
Service
if he had done anything
were true.
to determine
A320,
whether
Dr.
"That
was
I

Greenspan's
irrelevant."

comments
Mr. Campbell
IP
defamatory
statements.

unfounded
was

the
proposed
conduct
and behavior
Similarly,
made
Mr.
the decision
to charge
Campbell
to issue
Dr. Greenspan
Yet he believed
"irrelevant"
issuing
defamatory
true,
replied:
A320, 1.20-24.
He made the decision

were
to that
suspension
was."
Kenneth
Clark
with making
that whether
decision.
was
A315,
the proposed
those
His
"[b]ecause
unfounded
comments
asserted
of how
suspension.
and
were
grounds
for
outrageous
the
1.3-4.
failed
nature of Dr. Greenspan's
to reference
comments
the
unfounded
in imposing
and
the reprimand.


Instead,
he concluded
[sic] and inappropriate
that they were "presented
manner."
Given Mr. Campbell's
Decision
makes no finding
in a derogatory,
inflamatory
A340-41.
admission,
it is hardly surprising
that Dr. Greenspan's

statements
that the Initial
were unfounded.
Page 31 It merely
on
refers to Dr. Greenspan's
little
more
than
Dr. Greenspan's
the selection
Crosetti
comments
speculation."
testimony
regarding
A21.
In
nepotism
support,
it
that he had no proof that Ms. Crosetti
of her husband
had been exonerated
as Chief Dental
of nepotism
Advisor,
during
as "based
relies
influenced
and that he knew
a previous
on
Ms.
IG investigation.
Id.
The latter finding
not know
A258,
about
been
same
1. 1-5.
concerns
It also ignores
A286,
and her husband");
A322,
1. 12-15;
issues
Ms. Crosetti
herself
admits
on the subject.
A293,
1.17-23.
in a series
of Ms. Crosetti.
know the results
1.21-25;
of letters
A524;
of that investigation
1 meeting.
evidence
that the
1. 10-15; A322, 1. 10-15 ("There
the medical
1. 15-24.
that he did
about this issue to Dr. Greenspan,
within
investigation
A261,
A260,
testimony
at the time of the March
comment
and innuendo"
O
Q
1.25;
staff representative.
considerable
director
A336,
A259,
staff had expressed
the medical
to Dr. Greenspan's
the prior investigation
1. 11-25;
medical
is contrary
to the
A263,
staff about
A334,
1. 20-25;

had
. . . the VISN
A335,
1. 1-4;
there had been "a lot of gossip
Dr. Greenspan
IG, which
1.7-15.
had raised the
prompted
a second
Dr. Greenspan
at the time of the March
A262, 1. 1.
as
did not
1 meeting.
Page 32 The AJ similarly
conflict
of interest and contracting
speculation."
contracting
A21.
To
irregularities
the Canteen
Service,
of veterans'
preference
Business
Director
begin,
he merely
jobs
Dr. Greenspan
had more
which
could
Dr. Greenspan
disprove
believed
his
1 meeting.
and a conflict
Ms.
since
Mayi
Canales,
to Ralph
Shalda,
because
Service
or
Mr.
that the merger
before
the March
of interest
He believed
because
in the
between
that VISN

of that relationship,
Shalda.
did not have access to the contracts
allegations
conflict
the Associate
of the relationship
A288, I. 3-6; 9-12.
Canales
With regard to
of interest,
there was a potential
benefit
any
in a loss
believed
the Canteen
reference
not
result
was married
services
on rank
would
A270, I. 1-15.
with
did
"based
A266-74.
Service.
and Mr. Shalda.
contracts
Greenspan
stated that the merger
of the food and canteen
Ms. Canales
were
irregularities
Dr.
at the March
of the VISN,
Chief of the Canteen
merger
found that Dr. Greenspan's allegations regarding
A288,
or documents
1 meeting.
could result in the loss of veterans'
1. 19-24.
to prove or
A457.
He also
preference
jobs.
A288, 1.14-18.
Had he not been interrupted
his beliefs,
Dr. Greenspan
did in an April,
would
and/or had he been asked
have expounded
1999 letter to the Office of Special

for the basis for
on his allegations
Counsel.
A508.
as he
He had
Page 33 reported
A524.
these
allegations
Dr. Greenspan
Shalda
directly
of the
medical
did not contact
staff
members
A331, 1.23-25;
Retaliation
is a prohibited
personnel
"[h]aving
Table

statements
no
as of March
1 at the meeting
baseless;
© 1996.
does
whether
by which
vain;

his good
Dr.
further
were not "baseless
Greenspan
a culture
of
1.1-8; A353.
which
"unfounded,"
be determined
presented
means
Revised
about them
unassailable
1 meeting
from
proof
that
does not render
but actually
was shared
that
the facts he had
information
or idle,"
nor
are unfounded.
Webster's
The fact that he lacked
of VISN management,
Moreover,
forward
based
on
by many members
by Dr. Greenspan.
believed
that
faith belief of these irregularities

idle."
Dr. Greenspan
to obtain
staff represented
Many
The term "unfounded"
were true at the time of the March
mistrust
to foster
it could
his suspicions
They
or Mr.
A285, 1.1-8.
allegations
A278,
of the medical
Ms. Canales,
not defme
management.
unfounded.
I. 9-12.
VA
investigation.
A332, 1. 1-25; A333,
were unfounded.
foundation;
Dictionary,
the
of Penalties
for determining
Unabridged
sincere
under
practice.
The AJ did not set out any standard
them

perceived
A322, 1.2-18;
Dr. Greenspan's

Ms. Crosetti,
retaliation.
does it set any standard
O
were
about these issues out of fear of reprisal.
The Agency's

to the IG, and they
he was
required
because
to bring
of merit system
Page 34 rules
requiring
suspected
that
fraud,
a federal
waste
or
abuse.
protected
under
that
evidence
a violation
M.S.P.R.
298,

(2002).
observor
with
knowledge
has been
a violation
they
shared
his
violations
were
the WPA,
There
The
Is
Such
observers
also
did not show
a reasonable
of the
reasonably
that
are
belief
Treasury,

if a disinterested
conclude
that
of Dr. Greenspan's
believed
of
disclosures
is established
could
Many
with
v. Dept.
belief
instances
there
colleagues
there
were
Dr. Greenspan's
possible
comments
evidence
slander
also
statements
to
support
this
or defamation,
the
and defamatory
her reputation.
Assuming
failed
No
Evidence
That
Dr.
Greenspan's
Comments
Defamatory.
Board
Greenspan's
first
Rush
ld. at 307.
The Agency
Were
O
of law.
These
1. 5-8.
as they are made
Reasonable
of law.
suspected
unfounded.
B.
false
so long
disclose
A265,
of the facts
concerns.
of law.
employee
Gray
erred
because
were
defamatory.
element
v. AT&T
arguendo
to produce
that
any
was
The
of its charge.
Agency
statement
there
was
required
regarding
Corp.,
finding
Agency
To
support
to show:
resulting
357 F.3d
763,
(8th
that
Ms.
Crosetti
Dr.
no
for
of a
in harm
the Agency
harmed.
In fact,
Q
the AJ expressly
found
no evidence
that Ms. Crosetti

to
Cir. 2004).
defamatory,
was
a claim
publication
Crosetti,
were
that
introduced
Ms.
the comments
evidence
no
"suffered
any adverse
Page 35 consequence
A22.
as a result
Thus,
essential
the
element
Agency
merger
married
level

conflict
Shalda.
in the merger
vis-/l-vis
the Canteen
not
against
of showing
Service.
for wrongdoing
related
decision
Service.
unfounded
(emphasis
accuse
her."
harm,
in that
concern
an
or had engaged
1. 14-25.
statements
added).
of
any
was that the
Ms.
that
Canales
this
was
relationship
office
for
being made at the VISN
did not state
A289,
Crosetti
and the use of public
to the decisions
defamatory
Ms.
His allegation
of interest
but Dr. Greenspan
involved
- Pat Crosetti
its burden
He expressed
gain. 3 This concern
in general,
did
to the Canteen
an opportunity
with making
meet
Greenspan
a potential
to Ralph
presented
private
Dr.
with regard
created
cannot
of his allegations
of defamation.
Moreover,
wrongdoing
of the 'substance'
that
Ms.
Crosetti
was
in any personal
wrongdoing
Dr. Greenspan
was charged
"about
The comments
a senior VA official"
regarding
the
Canteen
O
Service
were not directed
Further,
concern,

which
Dr.
at Ms. Crosetti
Greenspan's
heightens
and are not covered
comments
the Agency's
burden
Co. v. Sullivan,
376 U.S. 254, 279-
(1964).
3 The transcript
loss and private
misquotes
Dr. Greenspan
gain." A270, 1.13-14.

e
involved
by the charge.
a matter
of public
of proof.
New York
Times
To prevail,
the Agency
must
as stating
the issue
was "public
Page 36 also prove
disregard
the
malice.
Malice
of the truth,
ld.
speaker
that he believed
that today.
is subjective
doubts
as to
produced
no evidence
the allegation
A256,
1.22-25;
of nepotism
15-25;
A337,
1. 1-2; A322,
merger
of the food and canteen
jobs,
which
believed
that there
believed
that
VISN
physicians
was suffering
because
of
the
First Amendment.
of public
and still believes
of the medical
A330,
staff
1. 1-7; A336, 1.
his concerns
that the
would result in the loss of veterans'
under
of interest
had
testified
investigation.
created
exhibited
management
by the merger.
a pattern
or
A507.
He
He
of retaliating
disclosed
potential
Dr. Greenspan
believed
of these actions
on the part of Ms. Crosetti.
no evidence
of his statements.
in matters
criticized
A530-31.
There is absolutely
was true then
his belief.
remained
a conflict
who
hospital
official
truthfulness
Dr. Greenspan
He reported
services
management
of law.
veracity
1. 10-15.
allegation
was
violations
ld.
the
A257, 1. 1. Several members
the issue with him, affirming
against
or reckless
- it must be shown that
of malice.
had discussed
preference

serious
of falsity
Id., at 286-87.
The Agency

a knowledge
The standard
entertained
statements.
constitutes
That
concern
A "citizen-critic"
to counter
these
that morale
Dr. Greenspan's
criticisms
involved
belief in the
a government
affords them extra protection
of the government

in the
under the
has as much
"duty
Page 37 to criticize
as it is the official's
376 U.S. at 282.
Without
duty to administer"
evidence
of malice,
public
the Agency
acts.
Sullivan,
cannot
breach
this
have
issued
the
protection.
The
to Dr. Greenspan
meeting.
The Agency
prevail

unfounded
O
was required
reprimand

Agency
despite
cannot
and defamatory
v. Gen. Svcs.
Agency
introduced
"insulting,"
the comments
proffer
The
reprimand
inappropriate
nature
Admin.,
just
evidence
Dr.
erred
official
of his comments
from
in finding
Greenspan
manner
to show
for
that
his
warrants
evidence
reversal
reprimand.

3O
Dr.
1 meeting.
insult
the
stated
to
for the
as he was charged.
derogatory,
and not the reasons
Dr. Greenspan
that

for its reprimand
651, 664 (1990).
at the March
a government
Board
of his remarks,
intended
The lack of clear and convincing

he made at the March
any reason
43 M.S.P.R.
and "inappropriate,"
not protect
concern.
nature
that it would
- it must show that it would have disciplined
Gergick
does
to prove
See
Instead,
Greenspan
the
was
The Constitution
in matters
Agency
was
of public
entitled
inflammatory,
in the Agency's
of the unfounded
of the Board's
to
and
charge.
and defamatory
decision
on the
Page 38 C.
O
The Agency
Must
Prove
the Statements
Were
Unfounded
and Defamatory.

In sustaining
the reprimand
Q
Decision
O
nature of Dr. Greenspan's
made
only cursory
as both elements
of the Army,
comment.
918 F.2d
170 (Fed.
the unauthorized
equipment
for other than official
agency
was required
This is a further
Cir. 1990).
purposes."
(1994)
Id.
("The
was based
agency
See also Edwards
agency's
on a single
was
'falsification'
required
of law,
Burroughs
v. Dept.
aspects
was charged
with
manpower
and
Id. at 172. The court found that
/d.
"was both
(emphasis
'unauthorized'
in original.)
of its charge,
charge
of 'deliberate
specified
incident
both
to establish
malpractice
....
the
Thus,
174,
and falsification'
under
'deliberate
the charge.");
"If the
then the entire charge
v. Dept. of the Navy, 62 M.S.P.R.
to prove
Initial
misapplication
materials,
that his conduct
purposes.'"
AJ's
and defamatory"
Burroughs
use of Government
to prove
the
to the "unfounded
fails to prove one of the elements
must fall."
charge,
must exist for the charge to be upheld.
and 'for other than official

reference
"directing
the Army
on the wrong
Burroughs,
malpractice'
and Acox
the
and the
v. U.S. Postal

Svce.,
76 M.S.P.R.
I11,
113-
(1997)
(where
the employee
was charged
with "verbal
both elements
discipline
abuse and physical
of the charge).
letter to Dr. Greenspan
threats,"
the agency
was required
In this case, the March
31, 1999, proposed
alleged that the statements

to prove
were unfounded
Page 39 and defamatory,
and under Burroughs,
the Agency
is bound
by the offense
charged.
The

comments
this:
Initial
Decision
were unfounded
"/f[Appellant's]
disrespectful,
(emphasis
either
Further,
also
it
as
that
if
words
and "defamatory"
are two separate
do not mean
the same
Under
both elements
to prevail.
comments
were
unfounded,
defamatory.
Under
of the charge
requires
III.
There
and
Burroughs,
no
finding
the Agency's
of fact as to
by
the
failure
are
synonymous.
of the charge
the Agency
evidence
A
statements
are
elements
Burroughs,
is insufficient
notice."
not a finding
unfounded
those
Greenspan's
on the issue is
in the proposal
"Unfounded"
thing.
Dr.
they would be particularly
statement,
assumes
defamatory,
that
The only finding
as specified
This is a conditional
element.
finding
were unfounded,
defamatory,
added).
no
and defamatory.
comments
/fnot
necessarily
contains
must
and
satisfy
that Dr. Greenspan's
AJ that
they
were
to prove both elements
reversal.
The Merit Systems Protection
Board Erred in Entering
Judgment
for the Agency, Because Substantial
Evidence
Does Not Support
its Decision that Dr. Greenspan's
Proficiency
Report Would Have
Been Lowered Absent His Protected
Disclosures.
An MSPB
relevant
evidence
a conclusion.
decision
is supported
that a reasonable
Haebe
v. Department
by substantial
evidence
mind might accept as adequate
of Justice,

288 F.3d
1288,
if there
is
to support
1298 (Fed.
Page 40 Cir. 2002).
factfinder
The Court
met its evidentiary
The Board
lowered
Dr.

at that March
about
added.).
that Dr. Dobrin
of the
of command
clinical
This
not state that his concern
issues."
finding
related
whether
that the Agency
would
ratings
absent
lowered
Dr. Greenspan's
appellant's
1999 staff meeting
the chain
office
in concluding
"because
to determine
the
ld.
proficiency
Qualities
central
burden,
Greenspan's
in Personal
for jumping
the whole record
erred
The AJ found
(emphasis

further
disclosures.
Crosetti

reviews
his
behavior
and directly
rating
Ms.
penchant
contacting
the agency's
transcript
at A299-300)
A23 (citing
misstates
protected
toward
as well as the appellant's
have
the evidence.
to Dr. Greenspan's
Dr. Dobrin
Central
does
Office contacts
on clinical

e

issues.
ethical
issues
March
1 meeting:
He testified
- the same
that Dr. Greenspan's
protected
concerns
contacts
Dr. Greenspan
[C]an I also say that I was also concerned
about
Ben's
persistent
going over our heads in the
hospital and going to Central Office.
I knew of
about 10 or 12 specific contacts that he had made.
I mean I certainly
know now.
I didn't know
exactly what they were,
concerned
about ethical
thing,
and he pursue
but I know that he was
issues and that sort of
[sic] them.
And I thought
that
it was just absolutely very irritating, and I felt that
that also contributed
to this feeling of downgrading
this one step in personal
qualities.

were about
raised
at the
Page 41 A300, 1.4-17,
Dr.
personal
25; A301, 1. 1-15.
Dobrin
qualities
activities.
raised
at the
retaliation,
March
Dr. Greenspan's
its evidence
view
activities
contacts
1 meeting
did
1. 7-10.
proficiency
-
rating
that
it
before the record of inquiry
Dr. Greenspan
have
nepotism,
downgraded
disclosures
reason
engaged
was issued,
was
A493-535.
were the very
mentioned
reason
A301, 1.5-
potential
would
that the appellant
were specifically
as those
absent the protected
disclosures
of the evidence
and Congress.
practices.
in
whistle-blowing
was the primary
mismanagement,
show
Greenspan
His only other complaint
are the same
personnel
not
of Dr.
on Dr. Greenspan's
with senior VA officials
is that those
those activities
downgrading
1 staff meeting
1. 13-22; A299,
of those
Agency
his
solely
and other prohibited
The
"[I]n
based
contacts
The subjects
that
that the March
A298,
Dr. Greenspan's

was
He stated
for doing so.
11.
admitted
- indeed,
for its action.
in whistleblowing
and in view of the fact that
in the record
of inquiry,
we find
that the agency
would
have issued
whistleblowing

The
rating
has failed to present
was
a record
activities."
Initial
lowered
Decision's
because
clear and convincing
of inquiry
Gergick,
to the appellant
43 M.S.P.R.
conclusion
that
he "jump[ed]

evidence
that it
in the absence
of his
at 666-67.
Dr. Greenspan's
the chain
proficiency
of command
about
Page 42 clinical
state
issues"
that
to the evidence.
Dr. Greenspan
command.
was
On the contrary,
Greenspan's
Decision
is contrary
Accordingly,
the
the Board's
clinical
he admits
whistle-blowing
misstates
taking
A23.
evidence
decision
issues
his action
activities.
A300,
regarding
affirming
Nowhere
does Dr. Dobrin
outside
the chain
of
was in response
to Dr.
1. 10-14.
Initial
the
The
proficiency
the Initial Decision
report.
and denying
Dr. Greenspan
corrective
action
should be reversed.
CONCLUSION
For these reasons,
Court reverse
the Agency
Petitioner
the decision
and remand
Dr. Greenspan
of the Merit Systems
respectfully
Protection
the case for further proceedings.


prays
Board
that the
in favor of
Page 43
Respectfully
HUSCH
Submitted,
& EPPENBERGER,
HARVEY
M. TETTLEBAUM
ROBERT
L. HESS
LLC
II
Mo. Bar #Mo. Bar #
235 East High Street, Suite Jefferson City, MO Phone: 573-635-Fax:
573-635-
Attorneys
for Petitioner

Bennett
S. Greenspan
Page 44
Addendum
Final
Initial
Order
of MSPB
Decision
....................................................................................
..............................................................................................

43
Page 45 Docket No, CH-1221-01-0192-B-!
Party: Appellant
Bennett S. Greenspan
5404 Dalcross Drive
Columbia, MO
Please
retain
A party
e-tiler
form
may
paper.
or representative
send
accept
electronic
be sent
to your
basis.
service
e-mail
go to the
Your e-filing
to a Board
and receive
on an on-going
as an e-filer,
this
pleadings
and
Kegtstration
of pleadings
address
e-Appeal
identification
processing
and Board
site:
constitutes
documents,
of PDF documents.
https://e-Appea.l.mspb.gov
number is 4741347.

registers
documents
as an e-filer
in the form
web
Board
who
as an
in electronic
conscnl
which
to
would
To register
Page 46 UNITED
STATES OF AMERICA
MERIT
SYSTEMS
PROTECTION
BOARD
BENNETT
DOCKET
NUMBER
CH-1221-01-0192-B-I
S. GREENSPAN,
Appellant,
V.
I.
DEPARTMENT
AFFAIRS,
JUN - 8 2O
DATE:
OF VETERANS
Agency.
Bennett
S. Greenspan,
D anie.l .C. Rattray,
Columbia,
Esquire,
Missouri,
St. Louis,
pro se.
Missouri,
for the agency.
BEFORE
Neil A. G. MoPhie,
Barbara 3. Sapin,
FINAL
The
cross
appellant
petition
issued
has
for review
filed
by the administrative
significant
new
consideration
earlier
a law
or regulation.
found
in Title
judge.
evidence
is
or when
The
for review
asking
and the
us to reconsider
We grant petitions
presented
to
us
the administrative
regulation
5 of the Code
ORDER
a petition
in this case
Chairman
Member
that
judge
that establishes
of Federal
Regulations,
the filings
in this appeal,
the
such
was
made
this
section
agency
has filed
initial
as these
not
a
decision
only
when
available
for
an error
standard
1201.
interpreting
of review
is
(5 C.T.R.
§ ]201.115).
ARer
no new,
fully
previously
considering
unavailable,
evidence
and that
O
we conclude
the administrative
that there
judge
is
made
Page 47 no error
in law
Therefore,
we
The initial
decision
decision
or regulation
DENY
in this
the
that affects
petition
the outcome.
for review
of the administrative
matter.
5 C.F.R.
and
judge
the
You
Federal
have
Circuit
the right
to review
court at the following
cross
is final.
§ 1201.115(d).
petition
This
for review.
is the Board's
final
§ 1201.113.
NOTICE
TO THE APPELLANT
YOUR FURTHER
REVIEW
O
5 C.F.R.
to request
the United
this final decision.
REGARDING
RIGHTS
States
Court
of Appeals
for
the
You must
submit
your
request
to the

calendar
days
address:
United States Court of Appeals
for the Federal Circuit
717 Madison
Washington,
The
court
must
after
your
receipt
representative
receive
your
request
o'f this order.
receives
Place, N.W.
DC
for review
no later
If you have a representative
this order
before
you do, then you
than
in this case,
must
file with
no later than 60 calendar days after receipt by your representative.
to file, be very careful
to file on time.
The court has held that
not have
the authority

comply
_--_
Management,

with
deadline
need
should
further
this statutory
must
931 F.2d'
If you
you
the
to waive
(Fed.
deadline
be dismissed.
Cir.
information
and that
Pinat
the court
If you
normally
filings
that
v. Office
choose
it does
do not
of Personnel
1991).
about
your

our
court's
website,
http://fedcir.gov/contents.html.
information
Of particular

It is found
to
Title 5 of the United States Code, section 7703 (5 U.S.C.
§ 7703).
You may read
this law, as well as review the Board's
regulations
and other related.material,
at
Additional
you this right.
decision
t
mspb.gov
gives
this
court,
.http://www
law that
right to appeal

website,
refer to the federal
See
and your
in
is available
at the
relevance
is the
Page 48
court's
"Guide
for Pro
the court's Rules
Se Petitioners
of Practice,
and Appellants,"
which
is contained
and Forms 5, 6, and l_.].l.
D
FOR
THE
BOARD:
Bentley M. Roberts,
Clerk of the Board
O
Washington,
D,C.

Jr.
within
Page 49 CERTIFICATE
I certify
Certified
that
this Order
Mail
was sent today
to each of the following:
Bennett
S. Greenspan
5404 Daleross
Drive
Columbia,
U.S.
OF SERVICe"
Mail
MO
Daniel C. Rattray,
Esq.
Department
of Veteran Affairs
Office of Regional
Counsel
Bldg. 25, Suite 1 Jefferson
Barracks
Drive
St. Louis,
June
MO
8,
(Date)

Marie
Wareholak
Legal
Assistant
TOTAL
P. OG
Page 50 UNITED
MERIT
STATES
SYSTEMS
AMERICA
PROTECTION
CENTRAL
BENNETT
OF
REGIONAL
S. GREENSPAN,
BOARD
OFFICE
DOCKET
NUMBER
CH-1221-01-0192-B-
Appellant,

DEPARTMENT
OF VETERANS
DATE:
September
30,

AFFAIRS,
Agency.
Lo.well
D. Pearson,
Esquire,
Daniel
Esquire,
Jefferson
C. Rattray,
Columbia,
City,
Missouri,
Esquire,
Missouri,
and
Jane
C. Drummond,
for the.appellant.
St. Louis,
Missouri,
for the
agency.
BEFORE
Howard
J. Ansorge
Administrative
INITIAL
Bennett
S.
Department
Hospital
request
of Veterans
in Columbia,
for
15,
by
a petition
2003,
remanding
request
an Initial
for review_
l_nding
the
Affairs
action
His
jurisdiction
matter
M.D.,
(VA)
Missouri.
corrective
whistleblowlng.
filed
Greenspan,
with
the
for
was
employed
at the Harry
adjudicate
Board
dated
over
issued
his
the
as
27,
2000,
on
action
March
30,
request

of
Dr.
a claim
was
physician
by
Memorial
the
Veterans
Greenspan
filed
of retaliation
dismissed
2001.
an Opinion
merits
a
S Truman
based
corrective
Board
jurisdiction
to
DECISION
On December
Decision
the
Judge
After
and Order,
for
the
a
for
lack
of
appellant
on September
for
corrective
action
and
the
appellant's
request
for
Page 51
corrective
247,
action.

See
Greenspan
v. Department
of Veterans
Affairs,
94 M.S.P.R.
(2003).
I held
completed
a hearing
the
For
the
in Columbia,
hearing
Missouri,
by telephone
reasons
set
forth
on
on February
below,
the
January

and
22,
2004,
and
23, 2004.
appellant's
request
for
corrective
action
is DENIED.

ANALYSIS
Following
issues
the
suggestions
considered
alleged
•during
disclosures
meeting
constitute
(WPA).
I also
covered
by
the
by
protected
the
the
WPA:
days
FINDINGS
in
the
hearing
the
following
were
under
three
reprimand;
of annual
Board's
appellant
disclosures
(1) a
of three
forth
remand
made
assumed
(3) icancellation
set
AND
limited
during
the
leave,
and
a
the
I assumed
March
1,

staff
Protection
constitute
lowered
order,
as follows:
Whistlebl0wer
actions
(2)a
Opinion
personnel
proficiency
Act
actions
rating;
and
l
1. The.relief
available
to the appellant
through
his request
for corrective
action is quite
limited.
When he resigned
from employment
with the VA in July 2000, the reprimand
was removed
from his Official
Personnel
Folder.
(See MSPB file 0192-B-at tab 29,
declaration
of Labor
Relations
Specialist
Janet Kipp.)
Thus, the reprimand
no longer
exists.
rating
In addition,
and deleting
0192-B-I
cancelled
later date
a cash
the proficiency
rating
negative
statements
in question
has been amended
with which
he disagreed.
payment
for
the
unused
annual
leave.
Notwithstanding
his request
for corrective
of consequential
damages
§§ 1214(g)(2)
& 1221(g)(1)(A)_ii)
(West
1996);
Affairs,
96 M.S.P.R.
476, 478 (2004).
Recognizing
appellant,
Board's
mediate
his
file
at tab 29, declaration
of Janet
Kipp.)
With regard
to the three
days of
annual leave, I presume
the appellant was allowed
to use the annual leave at a
or, if the leave was unused
when he separated
from employment,
he received
available
to the appellant,
be entitled
to an award
the
by .restoring
(See MSPB
I succeeded
in gaining
theparties'
Unfortunately,

lack
of direct
to submit
the
relief
because
he may
See 5 U.S.C.A..
Turner
v. Department
the limited
direct relief
agreement
mediation
process
prior to the hearing.
their dispute
did not resolve
it.
the
action is not moot
if he prevails.
of Veterans
available
to
this matter
parties'
to the
attempt
to
Page 52 @
Given
the above
to determine
that
it
assumptions,
whether
would
disclosure.
have

See
66F.3d
279,
"Clear
and convincing"
could
prove,
taken
same
personnel

of the trier
§ 1209.4(d)
(2004).
the
existence
and strength
involved
in the
Fulton
v. Department
cir.
(Fed.
Cir.
of the
1995),
cert.
whether
evidence
of any motive
and
similarly
any
situated
of the
of Justice,
at 256;
Horton
v. Department
of the
that produces
a matter
is true.
met
of the
who
(1995),
(1996).
5 C.F.R.
the Board
personnelaction,
the
of agency
agency
are not
79,
See
its burden,
on the part
showing

protected
of proof
in support
347,
the
or degree
95 M.S.P.R.
66 M.S.P.R.
absent

to retaliate
Army,
evidence,
actions
the agency
employees
evidence
516U.S.
that
evidence
to obtain
and convincing
denied,
is the measure
To determine
decision,
against
94 M.S.P.R.
convened
by clear
of fact a firm belief
strength
actions
Department
the
evidence
in the mind
considers
was
the agency
Greenspan,
Navy,
a hearing
the
officials
takes
similar
whistleblowers.
See
85-
(2003);
Caddell
aff'd,
96 F.3d

v.
(Fed.
1996).
Background
The
made
during
appellant's
.
appellant
agency,
a large
behavior
during
humiliated
what
a senior
which
he made
illegal
behavior.
claims
staff
the
agency
meeting
on March
at the meeting
the
VA
unfounded
appellant
official
retaliated
in
allegations
against
1, 1999.
him
The
warranted
a reprimand.
describes
as
a rude,
that
agency
had
personal
engaged
contends
According
whistleblowing,
gratuitous,
she
for disclosures
he
he
the
to the
publicly
attack
in unethical
during
and
2. The agency did not waive the following two issues:
(1) whether the appellant filed a
grievance
challenging
the reprimand
before he filed an OSC complaint
covering
the
reprimand;
and (2)whether
the proficiency
rating constitutes
a performance
rating
under Chapter 43.
45
Page 53
"
Some background is necessary to understand the context of the appellant's
remarks at the staff meeting. The national organization of the Department of
Veterans Affairs
includes
7 regions
(VISN's).
Truman
VA
The
hospitals
and

headquartered
Officer
clinics
of the Heartland
Network
executive
entire
staff
updating
under
Network
since
led
by Ms.
Crosetti,
of physicians
medical
and
answer
to discuss
Crosetti
region.
senior
issues
and
has
been
is
Networks
one
of
Network,
the
eight
which
Chief
of her staff
During
a group
on budgetary
during
Missouri
these
is
Executive
The
issues
this update,
which
share
the
for
the
meetings
the meeting
with
the
VISN's
hospital's
begin
and management
facility's
concerns
at the Heartland
visits,
meeting
administrators.
Following
period
Service
as the Heartland
holds
staff
purview.
Columbia,
and members
their
and
Integrated
1995.
Ms. Crosetti
in
the Network's
opportunity
Patricia
hospital
the facility's
question
known
each
staff,
Veterans
in
City.
six months,
visit
Hospital
in a VISN
in Kansas
Every
called
actions
is opened
medical
staff
the officials
by
to a
has
the
in charge
of
the VISN.
In
changes
year.
early
to address
was
autonomously.
disgruntled
and they
clinical
care.
HOspital),
to address
record
because
believed
According
VISN
Network
budget
Crosetti,
unhappy
The
process
VA
Heartland
to CEO
decisions
Hospital
were
the
a $16 million
According
management
VA
1999,
deficit
projected
the Heariland
Network
this issue,
because
they
indicates
they
felt
some
to Dr. Harry
15)
was
for the
was
staff
had
operated
previously
from
at the Truman
the VISN's
White
of Neurology
(Chief
to involve
fiscal
strong
at the Truman
relatively
VA Hospital
decision-making
decisions

coming
executing
administrati.ve
failure
implementing
and the medical
physicians
excluded
the VISN's
management's
(VISN
adversely
physicians
affected
at the Truman
in
decisions
Page 54
affecting
patient
members
of the
The
serve
as
their
the
detailed
D.C.,
criticizing
0734-W-issues,
the
because
Network.
1,
Ms.
file
Ms.
letters
had
appellant
at tab
Ms.
decisions,
is unable
to understand
of
ethical
the
signed
General,
a petition
frankly
that
as
"a
Chief
expressing
of the
"no
guilty
for
of
the
Kenneth
care
and
81-83.)
and
"clearly
MSPB
file
Officer
Clark,
physicians
confidence"
in Ms.
as
who
willing
has
no
(See
letter,
the
poor
to engage
understanding
as
Truman
Crosetti's

at
tab
December
well
at the
Heartland
makes
"is
and
nepotism
Clark.
0734-W-
in November
other
29,
In this
Director"
issues,
file
Among
Officer
VISN
he
MSPB
Network
(See
staff
1, 1998,
in a January
In addition,

Crosetti's
charge
activities"
Network
Ms.
nepotism
rogue
March
in Washington,
Advisor
pp.
which
to
& 89-95.)
Dental
to
Prior
(See
was
9.)
appellant
December
CEO.
Crosetti
many
Board,
General
as
to appeal,
government,"
82.)
Ms.
medical
il!egal
page
notified
the
and
84-
Chief
Chief
Crosetti
in
to appeal,
appellant
Inspector
other
behavior
attachment
pp.
1, attachment
described
and
to
that
the
staff.
of Inspector
appeal,
elected
criticizing
28,
actions
raised
appel!ant
in cronyism
Office
4c, page
Executive
in
Crosetti's
superior,
0734-W-
roll
among
at tab
medical
October
appointed
also
Crosetti's
22,
had
Clinical
active
alleged
been
Hospital
hospital's
an
June
attachment
husband
The
MSPB

tab
the
resentment
0734-W-
hospital's
agency's
of
appellant's
her
to
to the
and
file
VA
the
taken
On
many
MSPB
of
VISN.
mistrust
Truman
on
had
letters
at
at the
operations
of the
wrote
(See
representative
appellant
management
anger,
staff.
staff
day-to-day
1999,
caused
medical
medical
oversees
letter
care
I,
1998,
the
agency's
VA
Hospital
management
and
3. The documentary
evidence
referenced
in this decision
is contained
in three separate
MSPB case files identified
by the following
docket numbers:
CH-1221-99-0734-W-1;
CH-1221:01-0192-W-I;
and
CH-1221-01-0192-B-1.
decision,
the first case file is identified
as "MSPB
file 0192-W-1,"
and the third
as "MSPB
as "MSPB

Throughout
file 0734-W-1,"
file 0192-B-1."
the
the
rest
second
of
this
case
file
Page 55
leadership
of
attachment
to appeai,
The
the
March
Network's
by
Heartland
Chief
Director
hospital's
Crosetti
(See
claims
file
the
basis
his. remarks
Appellant's
When
question.
two
the
0734-W-
opened
at
was
other
used
one
prepared
at tabs
for
agency's
contained
tab
I,
projected
to the
first
in
to
Heartland
held
in
an
auditorium.
the
hospital's
Assistant
tO the
various
VISN
described
budget
shortfall.
audience
for
(Dr.
he stood
His
accompanied
the
with
VA
managers.
officers
& 41.)
Truman
was
When
reprimand
whistleblowing
and
According
Alvarez
to deliver
ensuing
she
a question
to be recognized.
when
decision
meeting
along
Heartland
and
Administrative
Network
4j, 4k,
the
was
seated
Crosetti
of the
notes
protected
staff
senior
floor
Heartland
0734-W-the
the
at
the
Alvarez)
The
the
of
Crosetti
Vincent
of other
the
Ms.
as the
Ms.
one
staff
meeting,
as well
including
she
4n.)
and
remarks,
appellant
appellant
MSPB
formed
opening
The
and
the
atiended
over
Kelly).
front
and a handful
remarks,
period.
Kelly),
him.
and
his
5:minute
to
Mr.
remarks.
monologue
The
appellant
disclosures.
Remarks
he
Rather,
observations
began,
he
the
said
and
appellant
he
wanted
complaints,
did
not.indicate
to make
which
that
a number
were

file
medical
(Dr.
(Matt
at the
developments,
her
Director
Director,
of Staff
the
at tab
Officer
doctors
her
and
completed
some
MSPB
presided
with
Medical
Associate
During
Crosetti
0734-W-
a podium
Chief
acti_rities
file
Operations
with
and
Ms.
meetings
MSPB
Approximately
Ms.
1999,
Network
auditorium,
answer
1,
(See
Network
The
(See
84 & 87.)
semi-annual
Hospital.

pp.
Network.
Meeting
On

Heartland
he
of
essentially
intended
comments
directed
to pose
and
share
at
Ms.
a
Page 56 Crosetti.
team"

The
as the
said
many
last
couple
appellant
hospital's
staff
understand
accused
not
have
a lot
of
Ms.
Crosetti
was
complained
that
should
realized
have
when
the
support,
a
the
lack
confidence"
to
things
had
CEO
VA
Hospital
that
Ms.
appellant
and
could
he
disaster.
was
stated
for the
said
not
Ms.
possibly
care.
He
ignoring
appellant
further
Network,
"jewel"
tried
and
in the
that
Heartland
the
Crosetti
"same
run
medical
The
of the
the
vote
been
the
good
and
on
participation
addition,
listen,
for
Truman
way
"no
in providing
became
cardiac
the
in medicine
unwilling
complained
hospital's
was
of physician
In
involved
Crosetti
the
appellant
the
prescription
Ms.
management
the
of a background
being
that
with
to change.
nuances
of
input
In addition,
the
sure
He mentioned
that
needed
much
not
not happy
asserted
process
physicians'
than
He
was
staff.
were
of years.
did
he
medical
members
decision-making
Crosetti
said
of the
she
VISN.
to dismantle,
rather
program.
At
interest
nil
issue,

that
point,
created
facilities
by
in
the
appellant
We
are

Ms.
the
having
merge
throughout
that
there
the
business
in the
worst,
personnel
what
decision
with
the
he believed
to merge
the
Can{een
Service.
VA's
problems
with
loss
to be
food
of veterans'
time
Congress
is tl"ying to support
referring
.to specifically
is the deal
you've
a loss
referenced
Crosetti's
VISN
where
it's
appellant
a conflict.of
service
In
programs
addressing
at
this
said:
also
the same
What
I'm
the
mandated
the
of veterans'
is a conflict
director
Canteen
there's
Service
public
Canteen
VISN.
There's
preference
and
office
VISN
for
and
For
there
private
nutrition
Mayi
gain.
at
service
that.
One
thing
to a guy
least
jobs
and promote
it.
Canteen
Service,
with
because
very
the
another
is married
so at the
that
with
a problem
jobs.
of interest
of the
Service
preference
there's
That's
thing
it turns
Canales
who
who
is high
a conflict.
a
out
is
up
At
prohibited
practice.
4.
The appellant
taped his remarks
during the meeting
MSPB file 0192-B-at tab 25, Appellant's
Exhibit
19.)

on .a hidden
recorder.
(See
Page 57 Next,
the
appellant
addressed
the
alleged
nepotism
involving
Ms.
Crosetti's
husband:
And on top of that, there
have been other prohibited
personnel
practices
such as nepotism
with your husband
being the Chief Dental
Advisor,
and this is after he was ...
he's not only on the Dental
Commodities
Standards
Board,
but the subject-matter
expert.
That
by itself is probably
okay, although
I don't know why the service
chiefs
on that [Board]
couldn't
also be the subject-matter
experts.
But to make him the Chief Dental
Advisor
was clearly
above and
beyond reason.
And he did step down on December
2nd by the way.
After
that, the appellant
raisedthe
issue
of reprisals:
And then there
have
been
issues
of reprisals,
which
are also
prohibited.
And we want that to stop, that's
gotta stop.
Aga'in,
because
we have a high quality
of staff here and we're trying to do
the best we can to provide
care to our veterans
and, um, that kind of
stuff doesn't
really belong here, frankly.
I mean, our physicians
are
trying to do the best job they can with the resources
we have.
I
realize it's difficult
to, we definitely
have
up, but that doesn't
mean we should
do
dishonest.

At
this
point,
minutes,
the
appellant
said:
after
having
appellant
was
spoken
asked
without
whether
a budget problem
coming
things
that are illegal
or
interruption
he had
for
approximately
a question.
In response,
the
Do I have a question?
Well, I guess, yeah, I guess I do. It's a little
bit off the wall, but I understand
you are working
on a Ph.D. and my
question
is that I've heard a rumor that the topic is on ethics.
Is that
true?

When
there
was no direct
response
to his
question,
continued:
Well, the reason I asked it is that there's a problem
with ethics in the
way things have been run.
There are a lot of things that have been
done that aren't honest, and that's gotta stop also.
At
this
Associate
point,
the
Director,
the appellant's
appellant's
Tom
Sanders,
monologue
came
interrupted
to
an end
and expressed
behavior.

Q
the appellant
when
the
hospital's
his embarrassment
at
Page 58
The
meeting
participants
out
continued
discussing
of the
testified
other
meeting.
The
she felt insulted
"was
not
going
questioned."
meeting
were
disgust
to
also
angered
their
staff,
remarks
were
remarks
were pre-meditated
appellant
and
personal
be
by the
appellant's
on him
and,
near
attack
insulted
testified
and
that
Crosetti
and she
personal
life
attendance
at the
demonstrated
their
of 3 or 4 members
of the
and
Crosetti's
from notes
walked
Ms.
my
in
view,
and unfounded.
he read
tears.
have
behavior
In Ms.
with
eventually
on her ethics
others
in the case
unprofessional,
because
for
after
the
1 day
based
0734-W-
at
appellant's
behavior
tab
Crosetti
by
conflicts
of interest,
After
decided
to simply
In issuing
to reprimand
management
inappropriate
proposal
of
She
the appellant's
also believed
his
as he proceeded.
notice
personnel
a letter
(Chief
at a medical
staff
the appellant
because
were
presented
file
characterized
the
about
activities,
Ms.
nepotism,
responses
to the
Kenneth
Clark)
Officer
MSPB
But
file 0734-W-
the
Mr.
his statements
in a "derogatory,

MSPB
oral and written
recognized
manner."
the
behavior.
(See
meeting.
suspend
and unethical
Network
Clark
(See
statements
contracting
of reprimand.
Mr.
meeting.
defamatory
detailed
to
essentially,
practices,
official
proposed
at the
illegal
the appellant's
official)
agency
unfounded,
reprimand,
opinions
the
behavior
her
deciding
the
decided
his
The
prohibited
issue
his
on
accusing
the
express
meeting,
as making
considering
notice,
staff
4e.)
bluntly
proposal
senior
was
she
minutes,
Discipline
Shortly
4a.)
testified
out of the room.
hostile,

Ms. Crosetti
further
backs
•medical
Proposed
there
another
care issues.
by the appellant's
Crosetti
very
medical
stand
walking
approximately
appellant
Ms.
by turning
for
appellant's
Clark
about
CEO
at tab
right
to
nevertheless
Crosetti
inflammatory,
(a
and
Page 59 Many
staff
appellant's
attendance
members who attended the meeting
behavior shared
(including
8 staff
Assistant
Chief
in which
she was treated
Their
the
letters
authors
the appellant's
MSPB
persona
These
oPinions
example,
Philip
by
psychologist
meeting,
language
echoed
Dobrin,
by
The
the
in
and
for the manner
at tab 4m).
ietters
stated
appellant's
that
"rude,"
"personal
attack"
on Ms.
Officer,
Matthew
Kelly,
Operations
was "direct"
general
those
Director
file 0734-W-
disrespectful"
by
retired
appellant's
the appellant's
there
The
of
Hospital's
the event.
Crosetti

apologizing
(See MSPB
Chief
fact,
and "vicious."
consensus
was
that
several
agency
witnesses
Chief
of
(See
the appellant's
for."
were
the
as the
"embarrassed"
on Ms.
at tab 4k.)
In
Crosetti
to describe
and
! attack
and Director
his opinion,
to.Ms.
and "blatantly
was "uncalled
"horrified"
as well
to the Network's
file 0734-W-
behavior
letters
"appalled"
According
opinion.
by the appellant.
"vindictive,"
--Crosetti:
Clark's
physicians
wrote
similar
were
"insulting,"
For
of Staff)
used
Mr.
and observed the
behavior.
of Behavioral
remarks
were
was an "underlying
In
Health)
"very
Staff,
testified
addition,
that
Jerry
testified
that
discourteous
animosity"
at the hearing.
Parker
he
was
(a
staff
in the context
of the
and disrespectful."
In
to the appellant's
"accusatory"
comments.
Although
that
they
many
felt compelled
was not without
the appellant
VA
conceded
the
McElroy
stated
(See
the
approach."
letters
MSPB
appellant's
in attendance
to apologize
his supporters.
submitted
Hospital.
diplomatic
of those
file
appellant
for to the appellant's
After
the agency
of support
0734-W-
remarks
was
(See MSPB
at the meeting
were
from
9 doctors
4e.)
insulting.
"extremely
file 0734-W-
remarks,
proposed
at tab
blunt
reacted
the
the appellant
1-day
on staff
Yet
so strongly
suspension,
at the Truman
even
some
of these
For
example,
Dr:
and
exercised
a less
at tab 4c, page
6.)
Hewitt
than
In addition,
Page 60 .

Dr.
Doak
Phillips
reference
to
0734-W-[the
felt
Ms.
the
appellant's
Crosetti's
at tab
4c,
appellant's]
'_comments
graduate
page
16.)
comments
studies,
Dr.
would
were
further
been
aceusatory,
inappropriate."
Phillips
have
pointed,
(See
stated
more
that
appropriate
the
and
in
MSPB
file
"majority
of
in another
forum."
The
appellant
inappropriate.

appellant
In
when
0734-W-on
testified

that
Ph.D.
many
dissertation
was
appellant
that
16 days
My
and
his
personal
i am
and
for
such
meant
also
that
wrote
in
I
that
not
In the
am
I would
could
that
of
apology
MSPB
Analysis
0734-W-
the
appellant
his
"train
In
on
addition,
reference
to Ms.
Crosetti
appellant
appellant
which
I realize
was
that
staffmeeting
and
to know
MSPB
he
Crosetti's
in
wrote
which.he
his
apology
stated:
inappropriate,
you
of
ethics,
when
nature,
noted
of his
above,
behavior
the
agency
at the
staff
proposed
also
my
eomments
is the
wrong
that
I also
plan
next
medical
file
0192-W-
to suspend
meeting.
But

The
inappropriate,
of my
other
sorry.
attab4h;
file
were
forum
to
staff
for
make
a
meeting.
at tab
4Q.)
of Reprimand
As
because
file
MSPB
a dissertation
to Ms.
The
letter,
Ms.
unethical.
public
apology
to our medical
staff at our
...
I hope you will accept
this apology.
(See
his
4.)
dissertation,
government."
was
(See
the
about
your Ph.D. thesis
was
that
comment.
Some
medical
like
comments"
write
were
suspension,
dissertation.
Ph.D.
appropriate.
regarding
making
the
she
a letter
was
also
she
remarks
1-day
19, paragraph
her
admitted
of a personal
and
issues.
that
to imply
the meeting.
were
disruptive,
page
principles
comment
sorry
for
comments
to appeal,
theappellant
behavior
after
of her Ph.D.
incredible
his
personal
topic
about
of
proposed
to make
asking
ethical
hearing,
admitted
when
it seems
at the
The
letter
so
the
some.
to the
inappropriate
about
that
that
response
1, attachment
to explain
violate
was
inquiring
was
conceded
written
"it
at tab
thought
and
his
admitted
Crosetti
went
himself
in the
the
letter
appellant
of
for
decision
1 day
dated
Page 61
September
17,
whether
have
the
agency
issued
the
In making
against
the
See
letters
Crosetti
appalling,
the
"accusatory,"
appellant
staff

the
meeting
characterized
"inappropriate"
hospital's
gravity
medical
staff
to
as
Even
is
it would
is weighed
reprimand
the
to
In
the
to write
the
appellant's
conduct
in
"less
fact,
personal
such
agreeing
issues.
who
diplomatic,"
appellant
himself
comments,
and
medical
staff.
and
the

to make
attendance
than
the
disruptive,
raising
decision
•compelled
hospital's
were
by
next
as
agency's
felt
those
remarks
setting.
comments
for
the
described
inappropriate
well
behavior
at the
decision
issue
disclosures.
to retaliate
supporting
they
the
were
forum
of his
that
protected
in attendance
his
for
remarks
wrong
the
disrespectful.
his
evidence
motive
supporting
people
appellant
the
of any
in which
as
critical
presumed
of evidence
and
was
convincing
The
at 85-86.
insuiting,
that
and
strength
Eleven
Crosetti
reprimanded.
appellant's
.evidence
apology,
admitted
the
the
amount
of his
merely
clear
95 M,S.P.R.
of
Ms.
also
by
the
appellant.
some
to
recognized
the
of
and
that
was
absent
is a substantial
Ms.
apologized
prove
Fulton,
the
admitted
can
determination,
to reprimand
supported
appellant
strength
•There
as
the
reprimand
this
appellant.

1999,
that
The
apublic
he
The
medical
appellant
also
apology
to
staffmeeting.
5.
At the hearing
in this
appeal,
the
appellant
testified
•contained
in his letter
of apology
to Ms. Crosetti.
claims
he retracted
his admission
that his comments

that
the
the staff meeting
was the wrong
appellant's
attempt
to retract
he retracted
More
specifically,
were disruptive
and
forum for his comments.
the admissions
contained
I ascribe
in his
two comments
the appellant
his admission
little weight
to
apology.
An
admission
against
interest
has long been recognized
as competent,
probative
evidence
and sufficient
to prove
the matter
so admitted.
See, e.g., Jackson
v. United
States
Postal
Service,
prove
misconduct
Administration,
48 M.S.P.R.
charge
20 M.S.P.R.
472,
by
475-
(1991)
(admission
preponderance
1, 2-3 (1984)
of
(same

that
the
holding).
against
evidence);
interest
sufficient
Fields
v.
Veterans
to
Page 62
Many
of the appellant's
and contained
no protected
Crosetti
of not being
accused
her
listen
acting
addition
Phillip
the
"jewel"
Dobrin
may
during
her
of their
_ matter
used
the
and
of which
when
He also
night
before
the
March
to
that
the
her
of
the staff's
vote
of
aware.
Crosetti,
the appellant's
and he
accused
she was already
Ms.
Ms.
unwilling
to recognize
addressing
from
staff,
of being
failing
region.
accused
medical
and he referenced
also be inferred
dinner
for
to the CEO
the appellant
expertise
and unethically,
the appellant
insulting
as the hospital's
chastised
in her leadership,
on his part
In
a degree
comments
to Dr.
meeting.
More

specifically,
i
Q
was
to the words
of ill will
also
dishonestly,
"no confidence"
.
medical
He
personally
For example,
necessary
Hospital
illegally,
disclosures.
team"
of lacking
VA
were
"on the same
to physicians.
Truman
comments
he and
going
Dr. Dobrin,
the appellant
to "get"
appellant
testified
pass
concerns
contention
chain
that
up
of command.
Inspector
General
pp.
& 89-95.)
81-
Chief
and
the
IG
Confidence"
vote.
84 & 87.)
Moreover,
a number
of other
as magazines
answer
to attack
chain
of
(See
well
(See MSPB
Officer
MSPB
he wanted
I ascribe
file 0734-W-
as
Ms.
file 0734-W-
including
about
the
his complaints
oversight
file 0734-W-
for appeal;

the
to
to this
through
the
sent the nepotism
as to the agency's
at tab 1, attaelament
Congressional
39b and 39c of petition
weight
risen
notified
about
to appeal,
the Network
outcome
at tab 1, attachment
had aired
(See MSPB
little
aswell
had already
Crosetti)
he was
personally,
had already
in Washington
said
when
his supervisors
had previously
the appellant
the appellant
venues,
command.
the appellant
In addition,
(as
because
that
day.
Ms. Crosetti
if not all, of his concerns
and newspapers.
to blocks
his remarks
testified
the appellant
he did not intend
Network
(IG).
meeting,
the following
For instance,
to the Chief
at the time,
at the meeting
the
most,
of Staff
the upcoming
that he made
because
allegation
was Chief
discussed
Ms. Crosetti
• In contending
his
who
of
the
"no
to appeal,
pp.
Ms. Crosetti
committees,
at tab
and MSPB
in
as well
1, supplemental
file 0192-W-
at
Page 63 tab 19, Appellant's Exhibit 6H.) In short, the evidence shows the appellant had
little problem communicating his concerns to those with authority to investigate
Ms. Crosetti.
At the hearing, the appellant
meeting
because
Crosetti's
response
because
never
there
to
the appellant
tried
was
the
no
to contact
Ms. Crosetti.
his
obtaining
responses
from
her.
complaint
after
another
or
expected
Ms.
minutes
the
Crosetti
the
appellant's
a sincere
the
derogatory,
appellant
CEO
were
attendance
disrespectful),
some
suPerior
conducive
is not
his
he
remarks
could
contention
that
he
he had
obtain
Ms.
to the meeting
he
in which
the appellant
was not
interested
in
recited
one
indicating
he
the appellant
or
at the
is disingenuous
prior
the manner
pausing
In fact,
otherwise
to be interrupted
and the manner
more
humiliated
Ms.
of a large
Many
his
in which
of a.personal
to air and resolve
after
five
number
denunciation
issues.
Crosetti
he presented
In short,
the evidence
making
personal
by
of her
of Ms.
senior
subordinates
of th e physicians
and administrators
demeanor
that
found
his
and
remarks
,at
who
to be
and disrespectful.
own admission
and inappropriate
at the meeting
This
indicates
without
observed
of the appellant's
personal
which
his monologue,
was
meeting.
inappropriate,
In light
meeting
of his remarks
in front
and
in
made
he had a question.
openly
VISN
he
his testimony
During
attempt
comments
the semi-annual
the
monologue
appellant
inappropriate
heard
whether
forum
Moreover,
to respond.
the substance
than
shows
during
Crosetti
and asked
Given
them,
remarks
claimed
he raised.
dur!ng
delivered
issue
other
issues
admitted
also
(who
disciplinary
that his public
and the strong
found
the appellant's
action
to a stable
negative
was
work
warranted.
atmosphere

remarks
reaction
remarks
disrespect
therefore,
his
of many
inappropriate
Open
and,
about
in
and
for
warrants
a
Page 64 disciplinary action. See, e.g.,
(Fed.
denied,
Cir.
1990),
502 U.S.
(1995).
As
can
employee
efficiency
and
the
Force,
Affairs,
80 M.S.P.R.
a senior
subordinates.
aetion,
comments
shield
Counsel
v. Starrett,
grounds
as noted
Matter
were
ofFrazier,
unfounded,
specified
The
disclosures,
were
more
the
which
than
to
cert.
303,
maintain
of the Air
v. Department
Bennett
679,
towards
v. Department
Lewis
of Housing
v. Department
v. Department
of
in Special
of
Veterans
of the
appellant's
of pay
or benefits.
a loss
presumed
Aet
justifiable
to
adverse
actions.
187 n.33 (1979).
superseded
See,
some
e.g.,
595,
of his
as a
Special
on other

if his
if not
the
protected
by statute
Moreover,
disrespectful,
Thus,
to be used
49 M.S.P.R.
her
admittedly
contained
not intended
163,
be particularly
have
of
of disciplinary
Although
was
60, 70 n.7 (1985),
for openly
audience
form
v. Hathaway,
would
a large
the lowest
Counsel
1 M.S.P.R.
(1991);
comments
defamatory,
notice.
argues
But
of
censure
Protection
28 M.S.P.R.
front
the appellant
to his misconduct.
are
from
to reprimand
in
a formal
meeting
it is irrelevant
unfounded.
disrespect
of management
(2001);
is virtually
response
employees
they
chose
It did not include
in the proposal
appellant
(1999);
official
reprimand,
the Whistleblower
to insulate

Cir.),
68 M.S.P.R.
open
e.g._ Gaines
12, 19-
the agency
a proportional
during
disclosures,
ease,
behavior.
was
stated,
Kirkland-Zuck
90 M.S.P.R.
(Fed.
of Justice,
capacity
See,

911 F.2d
472, 475 (1998).
nothing
inappropriate
the
132,
926F.2d
repeatedly
(2003);
management
The
was
reprimand

84 M.S.P.R.
In the instant
insulting
has
denied,
of the Army,
v. Department
and discipline.
Development,
the Air
Wilson
undermine
527,
v. Department
en bane
Board
seriously
94 M.S.P.R.
Urban
reh'g
861 (1991);
superiors
Force,
Webster
the
that because
whether
proposal
he is
assumed
his allegations
notice
charged

to have
of illegal,
the
made
unethical
appellant
with
protected
conduct
making
as
Page 65 "unfounded" and "defamatory" statements about Ms. Crosetti when accusing her
of nepotism and creating a conflict of interest in the Canteen Service.
MSPB file 0734-W-1 at tab 4e.) Thus,
are
relevant
absent
to
determining
the protected
The
appellant
no information
Dental
with
that
that
irregularities,
did
not
the VA's
know
whether
in the merger.
contract
or any
did
not
irregularities
rank
reprimanded
that
him
decision
to
Canteen
Service.
The
head
of the
to his
Thus,
of interest
the
VISN's
Service
a merger
contracting
if
anyone
food
andher
that
that
other
service
that
husband
he
were
he didnot
the
even
than the fact that
allegations
the Canteen
had
he had not seen
admitted
appellant's
as
of this
further.testified
admitted
involving
that
and involved
appellant
he had
exonerated
merge
the
selection
disclosures
'or operated,
the
been
know
He also
was funded
hearing,
meeting),
not
Canteen
documents.
the
did
the appellant
allegations
for her husband's
she had
he
the
profit.
and conflict
he knew
testified
Service
for
lobbied
a conflict
At
date of the staff
of interest
underlying
operate
that
In fact,
how the Canteen
(the
created
the
involved
know
have
speculation.
As
from
with
than
Ms. Crosetti
appellant
personallybenefited
programs
of his statements
the appellant's
IG investigation.
Service
the
would
indicates
1,.
testified
a previous
the Canteen
more
as of March
He also
by
agency
at the hearing
on little
showing
Advisor.
a'ilegation
developed
based
testified
the
nature
disclosures.
evidence
of nepotismwere
whether
the "unfounded"
(See
of
Service
it
contract
were based
on
speculation.
In determining
motive,
appellant
I note
nor
Hospital'sDirector,
official,
Chief
that
did
whether
Ms.
she
Crosetti
reach
Gary
Network
the reprimand
the
did
decision
Campbell,
Officer
not
resulted
propose
the
Clark,

him.
the adverse
is Ms.
a prohibited
adverse
to .reprimand
proposed
Kenneth
from
action
The
action.
Crosetti's
retaliatory
against
Truman
The
superior.
the
VA
deciding
They.
Page 66
were
not
the
evidence
showing
Moreover,
even
that
she
had
Crosetti
was
humiliated
suffered
any adverse
against
her.
disclosures
has shown
by
Proficiency
appellant
in July
at the March
rating
period
12..)
(Personal
was
lowered
1,
staff
in July
rating
the
where
1988)
Ms.
she
for
of the
Ms.
the
evidence
Consequently,
that
it would
Crosetti
(motive
was
the
question
him.
(1987)
Cir.
on
have
had
v. Department
appellant
842 (Fed.
based
appellant
evidence
474-
establish
of his allegations
strength
Cf. Oliver
actions.
does not show
the
toward
direct
not
is no
to reprimand
behavior
rating
at tab 4k.)
Qualities
in retaliation
meeting.
1998)
16, 1999,
for
the same high
lowered
his proficiency
not
of Health
to
retaliate
disrespectful
when
(Table).
the
was high
satisfactory
But
the
and
on August
appellant's
Research)
ratings
file 0192-B-1,
as the previous
19, 1999,
proficiency
high

1999,
year.
the approving
rating
in
satisfactory
Appellant's
signed
awarding
(See
official,
two
he
elements,
Dr. Terry Hoyt,
in July
period
for the previous
in all critical
superior,
ending
1-year
disclosures
rating
satisfactory
(See MSPB
period
from
for the
for the protected
his immediate
rating
rating
His proficiency
of high satisfactory.
On August
a proficiency
Dobrin,
claimed
(ending
With an overall
0192-W-
847 F.2d
also

made
appellant
against
by
disclosure.
of" misconduct
aff'd,
there
and convincing
465;
appellant
of the "substance"
decision
if his
does
the record
retaliate
no
Rating
The
Exhibit
even
34M.S.P.R.
gravity
disclosures),
ending
by clear
protected
Service,
conduct,
is outweighed
of the agency's
the presumed
outweighed
to
the
is
on their
the record
Although
as a result
there
influence
against
disclosures.
motive
the appellant
Human
making
O
any
the validity
the agency
retaliate
and
undue
actions,
by the appellant's
Thus,
supporting
any
their
to
consequence
of his
disclosures,
exerted
motive
presumed
"substance"
and
appellant's
Crosetti
a strong
reprimanded
the
if she had influenced
of his
included
of
Ms.
"substance"
I find
O
subjects
MSPB
the
file
Dr. Philiip
critical
to satisfactory.
elements
(See
Page 67
MSPB file 0192-W-1 at tab 4k.)
remained
high
the
The
(See MSPB
that
he lowered
the appellant
appellant
was
has
file 0192-W-
"no
not
quarrel"
that
Qualities
because
Of the appellant's
meeting
as well
of
clinical
staff
command
issues.
proficiency
rating
with
any
his
proficiency
meaningful
lowered
rating
in
research
rating
at
in Research.
at tab 4k.)
testified
March
overall
the appellant's
conducting
Dr. D0brin
• Personal
chain
explained
because
time.
the
satisfactory.
Dr. Dobrin
Research
Nevertheless,
and
he lowered
direetly
the appellant's
behavior
6 (Tr. at 303-04.)
toward
as the appellant's
contacting
(See
the
also
proficiency
MSPB
Ms. Crosetti
penchant
agency's
file
rating
in
at the
for jumping
central
0192-W-
office
the
about
at tab 4k, page
5.)
In light
the VISN's
In
CEO,
addition,
Qualities
"appalled"
"personal
profieiency
of the appellant's
his conduct
it was
given
by
rating
on
for jumping
been
handled
6.
The appellant
appellant's
contacts
249.)
Ms.
to
many
the chain
at the hospital
his
at the March
Crosetti.
Qualities
In
behavior
were
"insulting,"
the
Consequently,
for
issues
I find
Personal
"horrified"
and
decision
consideration
on clinical
toward
to his supervisors.
rating
1st meeting
addition,
included
of concern
proficiency
"rude,"
of command
leve_.
disrespectful
issue
lower
gratuitous
for Personal
penchant
first
that
appellant's
attack"
and patently
was a legitimate
appropriate
the fact
the
open
and
"vindictive"
to
lower
the
of the appellant's
that
should
the agency
have
proved
admitted
that, in this context,
Dr. Dobrin did not consider
the
with the IG to constitute jumping the chain of command.
(Tr. at
60
Page 68
by
clear
and
proficiency
Annual
rating
approval
to use
for April
committee
was
meeting,
the appellant
the leave
was
the meeting.
shown
by the
to "cancel'
decided
to send
Dobrin
remembered
and,
according
After
The
affiliated
lowered
the
appellant's
disclosures.
appellant
to
appellant
the
appellant
attend
After
this annual
the
was cancelled
meeting
leave
March
leave.
the nexus
received
a committee
l,
because

The appellant
for the whistleblowing
contends
had
had to use annual
the VA.
to forgo
in retaliation
1, 1999,
leave
with
was asked
the former
leave
that
disclosures
to his
on the same
Unit at the same
realizing
the
that
hospital's
staff
claims
he made
whistleblowing
day Dr. Dobrin
he
had
is
asked
two
Dr.
dates
had
program
run by the
During
Director,
of Radiology.
annual
they
Dr.
for
the
conference.
in the Radiology
not
be
a
Later,
leave
as the leadership
could
point
to decide
12 individuals.
worked
physicians
Unit,
absent
from
of staff.
Dobrin
wanted

at some
managers
approved
also
administration
that
leadership
Chief
due to a shortage
conflict,
in the decision
and the Associate
previously
same
testified
8 to
the
the appellant
practice,
the
send
was
on the very
time
clinical
could
who
was involved
senior
the Director,
Coy,
because
to standard
explained
hospital
of Staff,
Dr. Dobrin
to the annual
a meeting
a conflict
the
Dr. Dobrin,
Dr. James
Chief
in question.
meeting,
The
included
to attend
created
of
1999.
to send
Network.
Radiology
O
members
This
not
1 st staff
that
appellant
annual
Dobrin,
meeting
• appellant,
have
to Ms. Crosetti.
the March
staff
days
The
the annual
Heartland
e
protected
on March
fact that his leave
him to apologize
which
it would
meeting
26-28,
cancelled
during
after
that
the presumed
three
Dr. Philip

absent
to the staff
scheduled

evidence
Leave
Prior
the
convincing
personally
to
send
approached
Dr.
Coy
the
to
the
Page 69
leadership
Dr.
conference,
Coy
nodded
could
and asked
attend
his head
Dr. Coy could
the
to agree
conference.
According
agreed
to miss his meeting
and quietly
attend
the appellant
the leadership
to stay
to Dr.
in Radiology
Dobrin,
and stay
the
so
appellant
in Radiology
so
conference.
O
There
Q
the
annual
leadership
previously
scheduled
Radiology
to attend
Radiology
was
further
O
is no evidence
appellant
had
medical
not
previously
schedules
absent
Coy
had
appellant
forego
Coy
attending
was
his
was
only
held
conducted
by
committee
was
leadership
conference
appellant's
attendance
not
Dobrin
with
was
more
asking
(Because
the
appellant
him
leave.)
consented,
Finally,
Agency
pursuing
the
the

to. have
the
appellant's
Dr.
attendance
agency's
attending
technically
good
not be
the
by explaining
the agency's
the conflicting
leadership
mission
of a n0n-affiliated
agency
continuing
the
Coy's
to forego
his
the
Moreover,
Thus,
faith
addition,
conference
the
good
conference
leadership
whereas
meeting
of
Dr. D0brin
hospital
Network,
the
Chief
and Dr. Coy could
to the
from
17.)
Heartland
to
current
the conference,
a year.
VA.
someone
In
Exhibit
convenient
critical
to agree
while
because
appellant's
the leadership
the appellant
once
at a committee
demonstrated
and
annual
the
affiliated
appellant
appellant's
more
meeting
was
Dr.
It was
both
to attend
the
to be replaeed.
a conference.
to attend
committee
conference
such
file 0192-B-1,
selected
with
the then
to attend
conferences
because
time.
have
selected
to select
because
would
attended
been
Conflict
It. was natural
selected
off-site
had to be resolved
at the same
and
was
(See MSPB
a
conference
to retire
many
create
meeting.
Dr. Coy
attended
Dr.
to
the leadership
education.
Once
O
committee
that
he had
Dr. Coy was intentionally
conference
planning
explained
because
showing
faith
at the
than
the
organization.
the
his
Dr.
situation
committee
did
not
to
meeting.
"caneei"
is demonstrated
the
the
by the
Page 70 D
I
O_
U
faet
that
was allowed
meeting
that
took place
testified
that
he was
11-13,
Q
1999.
and,
when
attending
O
D.
was
Q
his
advised
allowed
of
by clear
approved
shows
conflict,
leave
the
and
convincing
annual
leave
gave
the
absence
of
on March
consent
showing
that the appellant
in
The appellant
scheduling
his
the appellant,
off-site
16 & 17.)
a legitimate
of evidence
affect
another
a conference
Exhibits
appellant
evidence
even
to attend
was
in the absence
to attend
1st meeting.
Agency
there
to adversely
leave
the March
file 0192-B-1,
Thus,
created
after
use annual
the
his meeting.
to use annual
ten days
the evidence
intentionally
shown
just
(See also MSPB
In summary,

D
the appellant
that
conflict
to
forego
the conflict
I find the agency
would
his
not have
presumed
has
used
protected
disclosures.
Conclusion
t
Q
Because
would
have
the agency
taken
appellant's
has
the same
request
shown
personnel
for corrective
by clear
actions
action
and
absent
must
convincing
evidence
the protected
that
disclosures,
it
the
be denied.
DECISION
The appellant's
request
for corrective
action
is DENIED.
Administrative
NOTICE
O
I
This
initial
petition
for review
motion.
This

received
by
is filed
is an important
can file a petition

decision
you
for review
more
than
Judge
will
TO APPELLANT
become
by that
final
on November
date or the Board
date
because
with
the Board.
5 days
after
reopens
it is usually
However
the

date
4, 2004,
the ease
the last
you
a
on its own
day on which
, if ihis initial
of issuance,
unless
you
decision
may
file
is
a
Page 71
petition
for review
decision.
you
The
can
file
Circuit.
within
date
on which
a petition
a petition,
court.
you
review
the date
decision
with
that follow
These
must
after
the initial
for
The paragraphs
or the federal
30 days
may
for review.
request
Your
Board
petition,
receive
final
and when
the initial
also controls
of Appeals
are important
the proper
for
the
when
Federal
to file with the Board
because
if you
wish
to file
time period.
REVIEW
review
with
Court
tell you how
BOARD
You
actually
becomes
the
instructions
file it within
you
of this initial
stipporting
decision
evidence
by filing
and argument,
a petition
must
be filed
with:
O
O
O
O
Q
O
e
Q
The Clerk
Merit
A Petition
for
commercial
delivery,
electronic
may
review
filing
must
only
be
of the Board
Systems Protection
Board
1615 M Street, NW.;
Washington,
DC
may
be
filed
by
mail,
facsimile
or electronic
filing.
comply
the requirements
with
accomplished
A petition
at
(fax),
for
review
of 5 C.F.R.
the
Board's
personal
or
submitted
by
§ 1201.14,
e-Appeal
and
website
(https://e-appeal.mspb.gov).
If you
case
from
Board
file
is already
of the Board
days
decision
after
date
which
delivery
part
no later
than
is received
the date
mail. is determined
the
for review,
the administrative
that
initial
a petition
you
is
Board
the
date
receive
the
date
than
obtain
5 days
must
after
the date
decision.
by personal
The
delivered

date
to
filed
becomes,
of filing
the
to the
with
the Clerk
final,
or if this
of issuance,
of filing
by electronic
delivery
in your
anything
The date
The date of filing
of filing
the record
not submit
decision
the initial
date.
was
should
initial
document.
document
will
Your petition
by you more
The
the
you
the date this
by the postmark
receives
and
of the record.
actually
of submission.
the
judge
the Board
commercial
by
filing
is the date
by

is
on
commercial
delivery
Page 72
service.
Your
a statement
petition
of how
may be rejected
you
served
and returned
your
petition
to you if you
o.n the
other
fail to provide
party.
See
5 C.F.R.
§ 1201.40).
JUDICIAL
If
petition
you
are
dissatisfied
717 Madison
Washington,
You
To
maynot
be

O.
file your
timely,
that
your
days after
If you
court's
Petitioners
petition
petition
the date
decide
website:
decision,
you
may
file
a
decision
the court
be
this initial
contained
as are Forms
NOTICE
agency
.must
Place, NW.
DC before
received,
decision
with
by
this decision
the
becomes
the court,
court
with
becomes
no
later
final.
than

is available
at
final.
information
the court's
"Guide
Rules
for
of Practice
Pro
Se
are of
5, 6, and I 1.
TO AGENCY/INTERVENOR
or intervenor
in accordance
within
may
the Board's
file
a petition
regulations.

O.
O
O.
O.
O-
final
(http://fedcir.gov/eontents.html)..The
relevance,
The
with
to file a petition
and Appellants"
particular

Board's
The United States Court of Appeals
for the Federal Circuit
calendar

the
with:

with
REVIEW

for
review
of this
initial
Page 73 CERTIFICATE
I certify
day to each
that the attached
OF SERVICE
Document(s)
was (were)
of the following:
Appellant
U.S.
Mail
Bennett
S. Greenspan
5404 Dalcross
Drive
Columbia,
MO Appellant
i.
U.S.
Mail
Jane C. Drummond,
Monroe House
Mail
LowellD.
Pearson, Esq.
Pearson Law Office
1400 Forum Boulevard
Suite 38-.
Columbia,
Agency
U.S. Mail

Esq.
235 East High Street
Suite Jefferson
City, MO . U.S.

Representative
MO Representative
Daniel C. Rattray, Esq.
Department
Of.Veterans
Affairs
Department
of Veteran Affairs
Office of Regional
Counsel
Bldg. 25, Suite 1 Jefferson
Barracks
Drive
St. Louis, MO
sent as indicated
this
Page 74 Other
U.S.
Mail
Kenneth
L. Bates
U.S. Office of Personnel
Management
Employee
Relations
Division
1900 E Street, NW, Room Washington,
DC
September
e
30, Pamela
(Date)
Paralegal

O
O

Bland
Specialist
Page 75 O
Certificate
Of Service
The undersigned
hereby certifies that two copies of the foregoing brief
were forwarded
this 26th day of October, 2005, by first class mail, postage
prepaid, to:
Kelly B. Blank
Department
of Justice - Civil Division
Commercial
Litigation
1100 L. Street, N.W., Room Washington,
D.C.
!

68
Page 76 Certificate
The undersigned
words,
Rules
Federal
Word
typeface
exclusive
of the items
of Appellate
Circuit
Procedure
Rules,
SP3.
using
counsel
This
Microsoft
Of Compliance
hereby
certifies
set forth
in Rule
and
based
on
Brief
set forth
the word
count
been

Attorneys
October
prepared
SP3 in Times
for Petitioner
26,
contains
32(a)(7)(B)(iii)
those
has
Word
that this brief
under
that
of the Federal
Rule
is part
32(b)
Roman
Bennett
of the
of Microsoft
in a proportionally
New
7,
space
font size
S. Greenspan
14.
Space
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