CARLSON v. DVA
Oral Argument — 01/10/2022 · Case 21-1701 · 28:04
0:00
Judge Moore
1-1701, Carlson v. DVA.
0:04
Mr. Stewart, please proceed.
0:06
Appellant Attorney (Christopher Stephen Stewart)
Thank you, Your Honor.
0:07
May it please the Court, Counsel.
0:09
I, along with Frederick Sienkiewicz, represent Holly Carlson.
0:14
Carlson was hired on September 11, 2011,
0:17
and was appointed as an oncology case manager
0:20
and registered nurse for the Department of Veterans Affairs.
0:24
The facts of this case stem back to April of 2016.
0:31
In April of 2016, they see something, say something report
0:37
outlining a denial and delay in patient care,
0:46
inadequate staffing, and specific concerns of Nicole Aldrich,
0:51
Aldrich's training, and a specific patient issue
0:54
regarding a denial of care.
0:57
As well, in April of 2016, Carlson objected to her assignment
1:01
within the VA and once again outlined inadequate staffing,
1:05
lack of training, and her concerns with Aldrich.
1:09
Thereafter, Carlson's work environment became hostile.
1:12
In August of 2016, the same operating procedures that Carlson
1:17
had been charged with as Aldrich's own work product.
1:26
In March of 2017, Carlson was directed to cease and desist
1:29
any work she had assisted on and added to a cancer policy
1:34
for the VA facility.
1:35
In April of 2017, an investigation was started by Aldrich
1:39
regarding Carlson's performance in 2018
1:48
and additionally, issues she had with Aldrich's supern
1:58
from attending a cancer committee meeting as well.
2:01
Carlson lodged these complaints and concerns
2:04
with delays in the VA's procedures regarding prescriptions
2:07
and outlined the impact and issues that were
2:10
detailed Carlson for up to 30 days.
2:18
Thereafter, Aldrich extended the detail for an additional 30 days
2:22
on two separate occasions, such as conduct unbecoming,
2:29
performing duties outside of the and detail and lack of candor.
2:34
It was later limited by Director Gail Graham
2:39
and thereafter, a settlement was reached on the suspension.
2:45
Carlson was once again detailed in September of 2018,
2:48
and relegated to the position of a secretary.
2:51
In November of 2018, Carlson filed an individual right of action
2:56
outlining that the VA took personnel actions against her
2:59
in retaliation for her disclosure she made
3:02
by the Whistleblower Protection Act of 1989
3:07
and the Whistleblower Protection Enhancement Act of 2012.
3:12
Within her complaint, Carlson outlined the unsafe conditions
3:16
that were created by Aldrich, and details she was subjected to,
3:23
and the committees and duties she was strict with.
3:26
The matter was then set in front of an administrative law judge,
3:29
and the decision by the administrative law judge,
3:32
which is on appeal today,
3:34
found that Carlson made a protected disclosure
3:37
and proved by preponderant evidence that she was,
3:40
that her protected activity was a contributing factor
3:43
in the personnel actions taken against her.
3:46
However, the administrative judge found that Carlson was not subjected
3:50
and that the VA had shown by clear and convincing evidence.
4:00
With that in mind, on appeal, Carlson,
4:05
whether the administrative judge was determined,
4:08
that she was subjected to a significant change in working conditions
4:13
based upon the creation of a hostile work environment,
4:17
and that her work environment was not a covered personnel action.
4:20
And second, the administrative judge incorrectly determined
4:25
that the VA showed by clear and convincing evidence
4:27
that it establishes Carlson was subjected to a hostile work environment
4:41
that should be considered a covered personnel action.
4:44
As this court is aware, there's a list of 11 qualifying personnel actions
4:48
under the WPA, which include an appointment, performance evaluation,
4:53
with a broad category of their significant change in duties,
5:00
responsibilities, or working conditions.
5:04
Established in determining if a hostile work environment has occurred,
5:08
the court needs to address and review and examine the conduct
5:14
and whether the conduct was physically threatening.
5:19
While Carlson submitted information and documentation to support her claim
5:23
of a hostile work environment, of being stripped of duties
5:26
regarding the cancer committee, the SOP she had created, performance rating,
5:35
and being placed on, the administrative judge found that,
5:39
in the first employment action, and further Carlson's argument for a hostile...
6:13
Judge Moore
Counsel, this is Judge Moore.
6:14
If I understand the law in this area correctly, you have to succeed, don't you,
6:18
on both the hostile work issue, work environment issue,
6:22
and the independent causation issue, is that correct?
6:25
Appellant Attorney (Christopher Stephen Stewart)
That would be correct, Your Honor.
6:26
Judge Moore
So why don't you move to your independent causation issue.
6:30
There seems to be evidence in the record,
6:33
and we review all of this for substantial evidence,
6:36
and there seems to be evidence in the record
6:40
that, for example, Finley and Versteegh,
6:43
I'm not sure if I'm saying that name right,
6:45
submitting memos to HR about their concerns
6:48
over Carlson's conversations with Morton.
6:51
They thought that she might have crossed the boundary
6:55
and could have caused a much-needed oncologist
6:59
not to be willing to join the VA practice there,
7:03
and that was of great concern to them.
7:05
That seems pretty clear in the record.
7:09
So what do you think is wrong with that conclusion?
7:14
Appellant Attorney (Christopher Stephen Stewart)
I think in looking at the specific issue of causation for the VA,
7:25
and I believe that Carlson is, whether or not similar were treated.
7:32
I thought that Fouch at A-223 submitted a declaration
7:58
Judge Moore
that she detailed other employees when they were subject to an investigation,
8:03
and I thought she gave three specific examples.
8:06
Appellant Attorney (Christopher Stephen Stewart)
So in looking at those examples, Your Honor,
8:08
I respectfully disagree with proving that they are a similarly situated employee.
8:23
If we look at the cases that we've cited in our briefs,
8:27
Whitmore and Gadeski, which I believe the VA also relies on,
8:33
the VA has to come forward with all reasonably pertinent evidence
8:37
relating to this fact that the agency is paralyzed.
8:42
So I do not believe, based upon,
8:44
I don't believe that the VA has met me in this case.
9:13
Judge Moore
So just to be clear, you are arguing you don't think
9:17
Fouch's declaration is substantial evidence,
9:20
for the similarly situated individual's fact finding?
9:25
Appellant Attorney (Christopher Stephen Stewart)
Your Honor, I don't believe there is substantial evidence
9:28
within this record from any VA employee.
9:37
Judge Moore
What about all the HR employees who confirmed at pages 243 to 44 and 248
9:42
that it was standard policy to detail any employee who was under investigation?
9:47
Appellant Attorney (Christopher Stephen Stewart)
Back to the argument that these are not specific enough.
9:54
I have no idea, and based upon the record,
9:56
this court would not know what those individuals did.
10:01
Judge Moore
But why do we need to know that?
10:03
If the agency has a policy, which their HR specialists say they do,
10:07
that anyone who is subject to investigation is temporarily detailed,
10:11
which quite frankly seems reasonable,
10:15
why isn't that sufficient?
10:18
The agency has a policy.
10:19
She was subject to an investigation at the time.
10:22
So why isn't that enough?
10:24
Appellant Attorney (Christopher Stephen Stewart)
And if I can answer the question, then I'll save the rest for rebuttal.
10:28
But Gadeski outlines, and I answer your question,
10:33
they have to be similar in all certain respects.
10:41
I don't believe it.
10:57
Judge Moore
Okay.
10:59
Thank you.
11:04
Appellee Attorney (Alison Vicks)
Good morning, and may it please the court.
11:06
This court should sustain both of the board's findings,
11:08
that Ms. Carlson was not subjected to a hostile work environment
11:11
and that the agency supported its temporary details of Ms. Carlson
11:14
by clear and convincing evidence,
11:16
because both findings are supported by substantial evidence on the record.
11:20
Now, I think it's really important to note
11:22
that the administrative judge's opinion is extremely thorough,
11:26
and he goes overboard and bends over backwards
11:30
to allow Ms. Carlson the chance to provide evidence to support her case.
11:36
And she simply didn't do so.
11:40
And now she comes before this court and asks the court to simply basically discount
11:47
the ample evidence provided by the agency and reverse and remand.
11:53
And I would respectfully submit that the court should decline that invitation
11:57
and should instead uphold the board's determination,
12:01
which are based on careful consideration of the evidence actually presented
12:04
and are therefore supported by substantial evidence in the record.
12:09
I'd also like to briefly address what the court was just discussing
12:17
with opposing counsel.
12:20
There is perhaps even more evidence here for CAR Factor III
12:26
than we sometimes see in these cases.
12:28
And Ms. Fouch's declaration provides three examples of agency employees
12:35
that she detailed during the fact-finding investigation
12:39
and shows that this is what the agency does
12:41
when there is an employee who is suspected of misconduct.
12:46
The agency regularly details employees out,
12:51
and that's enough to show that it treats employees the same,
12:55
whether they're whistleblowers or not.
12:57
If they are suspected of misconduct,
12:58
they're not.
12:58
That means fact-finding in order to substantiate
13:02
or not that suspected misconduct.
13:05
The court also pointed to the affidavits of H.R. specialists,
13:09
Heitz and Begulis, I think, who stated that this was the policy.
13:16
So CAR Factor III is the agency presented evidence under CAR Factor III,
13:23
and the administrative judge appropriately found that CAR Factor III could weigh
13:28
in favor of the agency, given that...
13:31
Judge Moore
Counsel, under the law, does the agency have to prove that there were,
13:38
in fact, other similarly situated individuals,
13:40
and that, in fact, they were treated the same?
13:44
What if there had been no similarly situated individuals?
13:47
Would that have prevented the agency, for example,
13:49
of being able to establish independent causation?
13:53
Appellee Attorney (Alison Vicks)
No, Your Honor.
13:54
As Your Honor is aware,
13:56
the CAR Factor test is a balancing test,
14:00
and the agency is not under a compulsion to provide evidence on every factor
14:05
and to weigh on every factor in order for the administrative judge
14:09
to find in favor of the agency.
14:12
Instead, the board weighs the evidence under each factor
14:16
and makes a determination.
14:18
So, yes, this court has held in the past that absence of evidence
14:22
under CAR Factor III means that that fact-finding evidence
14:26
factor can simply fall out of the analysis,
14:28
and at most it will be neutral for the agency.
14:31
Here, though, that's not the case.
14:33
We have ample evidence under CAR Factor III
14:35
that the agency details employees,
14:41
regardless of their whistleblower status,
14:43
when they are suspected of misconduct,
14:45
as Ms. Carlson was in both in the first detail
14:51
with her contacts with Dr. Morton,
14:54
and the second detail,
14:54
which was to investigate findings of delay of patient care.
15:02
The agency also provided ample evidence under CAR Factor I
15:08
that it had strong reasons to place Ms. Carlson on these details,
15:15
again, pointing back to the original memorandum from Ms. Finley,
15:20
from Dr. Versteeg,
15:22
who had the same concerns as Ms. Finley about Ms. Carlson's contacts
15:26
outside of the VA to the incoming oncologist
15:30
and the supporting declarations from HR.
15:34
And Ms. Carlson did not provide the board any reason
15:37
to discount the reliability of this evidence.
15:39
She offered no sworn statements or declarations,
15:41
and she does not present this court with any reason
15:43
to doubt the board's reliance on them either.
15:46
So Ms. Carlson has not shown that the board's determination
15:50
that the agency had strong evidence
15:52
for Ms. Carlson's first detail.
15:54
She's not shown that that is unacceptable.
15:56
She's not supported by substantial evidence on the record.
15:58
Judge Moore
Well, so even if I were to discount Factor III
16:03
and treat it as neutral, there was no contrary evidence,
16:06
so at best it would be neutral.
16:08
But the board found strong evidence
16:11
on the strength of the agency's evidence,
16:13
and then with regard to Factor II, motivation to retaliate,
16:17
they said that that only weighed slightly in Carlson's favor.
16:21
So the board would still have substantial evidence
16:23
for its decision,
16:24
even if the similarly situated whistleblower evidence
16:27
was taken completely off the table.
16:31
Appellee Attorney (Alison Vicks)
Yes, there has been case law
16:32
that has found that the board's decision
16:35
based on strong evidence under CAR Factor I
16:37
and a slight motive to retaliate
16:40
and CAR Factor III dropping out has been sustained.
16:44
But again, in this case,
16:45
CAR Factor III has ample evidence to support it,
16:49
and so going to dropping CAR Factor III
16:51
out of the analysis is not necessary.
16:54
Well, I'm...
16:55
Judge Moore
Do you have some concerns
16:57
about the way Mr. Stewart
17:00
would have us interpret CAR Factor III,
17:03
the level of specificity he would require
17:07
in order for the board to be able to rely
17:10
on the kind of evidence that was provided?
17:16
Appellee Attorney (Alison Vicks)
Um, no.
17:17
This court, and I apologize that the name is...
17:22
the name of the case is slipping out of my head right now,
17:25
but this court has found
17:26
that the exact circumstances of each comparator
17:30
does not need to be the same.
17:32
It doesn't need to be identical,
17:34
as I think Mr.
17:37
as my...as counsel said,
17:39
Mr. Stewart said.
17:41
They just need to be similar enough
17:44
for the...
17:46
for this court and the board to...
17:49
I guess...
17:49
Judge Moore
Let me try rephrasing my question.
17:52
My question to you is,
17:53
in this case,
17:54
there was evidence prevent...
17:56
presented by Ms. Fouch
17:59
as well as two...
18:01
I think at least two HR employees
18:03
confirming that it was the standard practice
18:06
to detail any employee
18:08
who was under investigation.
18:11
Isn't that...
18:12
Even if that's the only thing,
18:15
isn't that enough
18:16
to be the substantial evidence
18:18
for similarly situated
18:21
under CAR Factor III?
18:24
Appellee Attorney (Alison Vicks)
Uh, yes.
18:26
To answer your Honor's question directly,
18:28
it is enough.
18:28
Because it shows that
18:30
this is what the agency does
18:31
when someone is suspected of misconduct.
18:34
Right.
18:35
Judge Moore
So they don't have to prove
18:37
that the other people were in fact nurses
18:39
exactly like Ms. Carson
18:41
or in Carlson
18:43
or in exactly the same situation as she was.
18:47
They can simply prove
18:48
that they have a policy
18:49
of treating all employees
18:51
this particular way
18:53
and that would be sufficient, right?
18:55
They don't have to draw analogies
18:57
to her employees,
18:58
in particular,
18:59
and her position
19:00
and all of that.
19:03
Appellee Attorney (Alison Vicks)
Right.
19:04
The evidence is whether
19:05
the agency deals with employees
19:09
in a similar way
19:10
as to the whistleblower at issue.
19:12
And the agency here
19:14
has presented the evidence
19:16
that it is their policy
19:17
to detail an employee
19:18
who is suspected of misconduct
19:20
and the misconduct needs
19:23
a fact-finding investigation
19:24
to detail them
19:25
out of their home department
19:29
during the pendency
19:31
of that investigation.
19:32
Judge Moore
And in fact,
19:33
Ms. Fouch went further
19:35
than just saying
19:36
we have a policy full stop.
19:39
She actually did give some details
19:42
with regard to the three employees
19:45
that she had personally detailed
19:49
during other investigations.
19:52
Mr. Stewart would say
19:54
she may have given some
19:55
but she didn't give enough information
19:57
for us to know
19:58
they're exactly situated
19:59
in the same way
20:00
as Ms. Carlson.
20:01
How would you respond to that?
20:03
Appellee Attorney (Alison Vicks)
I would say
20:04
that Ms. Fouch's declaration
20:06
shows that she details nurses
20:09
under her supervision
20:12
regardless of their status
20:13
as of whether she knows
20:15
their status as whistleblowers or not
20:17
when they are suspected
20:18
of misconduct
20:19
or if there is a risk
20:20
to veteran care
20:22
or a risk to the employee's peers.
20:25
And so I would say
20:27
that it is enough.
20:28
It shows clearly
20:29
that Ms. Fouch
20:29
with the HR policy
20:31
and it shows
20:31
that Ms. Fouch
20:33
takes this action
20:35
in a neutral manner
20:37
towards employees.
20:39
I mean,
20:39
I'm sure it doesn't feel neutral.
20:40
But she applies
20:42
the policy neutrally
20:43
to nurses
20:45
who are suspected
20:46
of misconduct
20:47
and details them
20:48
when appropriate.
20:56
So unless
20:57
there are further questions
20:58
about CAR Factor 3
21:00
or the details,
21:03
I can
21:04
go ahead
21:05
and move on
21:05
to the Hostile Work Environment claim.
21:07
And,
21:08
you know,
21:09
if there are any questions
21:10
about that,
21:11
I'm happy to answer it.
21:14
But the
21:17
board's decision here
21:19
was consistent
21:20
with the law
21:21
and was
21:21
is supported
21:23
by substantial evidence.
21:24
The judge correctly
21:25
analyzed
21:26
only those allegations
21:27
that the
21:29
that Ms. Carlson
21:30
had presented
21:31
as
21:34
constituting
21:35
a hostile work environment
21:36
and those allegations
21:37
were,
21:38
you know,
21:38
related to
21:39
her ability
21:40
to work on certain
21:41
cancer policies
21:41
and her attendance
21:43
at a cancer committee meeting
21:44
while she was,
21:45
in fact,
21:45
detailed out of oncology.
21:47
And
21:48
the judge
21:49
correctly analyzed
21:49
those under
21:51
paragraph 12
21:52
of
21:53
5 U.S.C.
21:55
2302
21:55
A2A,
21:56
which is
21:57
the catch-all provision
21:58
that Congress
21:59
had provided
21:59
after
22:00
specifically
22:01
enumerating
22:02
11 other
22:02
agency actions.
22:05
And he correctly found
22:07
the allegations
22:08
that Ms. Carlson
22:10
had put
22:12
forth,
22:13
which
22:13
some of
22:14
two of which
22:14
were supported,
22:15
the office move
22:16
and the denial
22:17
of the cancer committee.
22:18
He correctly found
22:19
that those
22:19
did not meet
22:20
a significant change
22:22
in working conditions
22:22
as has been required
22:24
to find
22:24
a hostile work environment.
22:26
They didn't
22:27
have
22:28
practical consequences
22:29
for her
22:31
for her job.
22:33
And
22:33
then he found
22:34
that even
22:34
taking into account
22:35
the unsupported allegations,
22:36
they didn't
22:37
meet the
22:38
significant change
22:39
required
22:39
under
22:40
paragraph
22:41
12.
22:42
So,
22:44
his finding
22:45
is based
22:46
on careful
22:47
consideration
22:47
of the evidence
22:48
and is supported
22:49
by substantial
22:50
evidence
22:50
in the record
22:51
and should
22:52
be sustained.
22:53
And unless
22:54
there are any
22:55
questions,
22:56
which I'd be
22:57
happy to answer,
22:58
I submit
23:00
that this court
23:01
should
23:01
sustain
23:02
the board's
23:03
decision.
23:05
Judge Moore
Okay,
23:05
thank you,
23:05
Ms. Vicks.
23:06
Mr. Stewart,
23:07
you have some
23:07
rebuttal time.
23:08
Please proceed.
23:09
Appellant Attorney (Christopher Stephen Stewart)
Thank you,
23:09
Your Honor.
23:10
I first want
23:11
to discuss
23:12
the
23:13
response
23:14
to the
23:14
discussion
23:14
of the
23:15
similarly
23:15
situated
23:16
employees.
23:17
If we look
23:18
at the
23:18
Gadeski case,
23:19
which is
23:20
a case
23:20
that I believe
23:21
both sides
23:21
cited
23:22
in their
23:24
brief,
23:25
outline
23:27
that the
23:28
individuals
23:29
and the
23:29
employment
23:29
situation
23:30
must be
23:31
nearly identical.
23:32
In this case,
23:36
we don't have
23:36
that information.
23:37
There's nothing
23:38
before this court
23:39
to outline
23:39
or to show
23:40
that these
23:42
alleged similarly
23:42
situated
23:43
non-whistleblowers
23:44
that these
23:45
individuals
23:46
are referring
23:46
to or the
23:47
VA is referring
23:47
to were
23:49
nearly identical
23:50
to that
23:51
of Carlson.
23:52
There's nothing
23:53
outlining
24:00
Judge Moore
there.
24:00
What is it
24:01
that you think
24:01
nearly identical
24:02
means,
24:02
right?
24:02
They don't have
24:03
to be the same
24:03
age as her,
24:05
the same
24:06
race,
24:06
the same,
24:07
they don't have
24:08
to have all
24:08
the same
24:08
demographic
24:09
characteristics.
24:10
Do they necessarily
24:10
have to be
24:11
in exactly
24:12
the same
24:12
position
24:13
she's in
24:13
or can
24:14
they be
24:14
in a related
24:15
field?
24:15
What is it
24:16
you think
24:16
nearly identical
24:18
under the law
24:18
means?
24:19
Appellant Attorney (Christopher Stephen Stewart)
So under
24:20
Carol versus
24:21
Department of Health
24:21
and Human Services,
24:23
the court held
24:24
that there was
24:25
not error
24:25
in finding
24:26
that posts
24:26
worked in
24:28
different modules
24:29
that these
24:34
individuals
24:34
have to be,
24:35
have to one
24:36
have the same
24:36
supervisor.
24:37
The case file
24:58
we've cited
24:59
has to be
25:00
nearly identical
25:01
to the
25:01
Gadeski point.
25:03
Judge Moore
And Ms.
25:04
Fouch
25:04
testified
25:05
that the
25:06
other
25:08
three people
25:09
were likewise
25:10
RNs
25:11
under her
25:12
supervision
25:12
and that
25:14
they likewise
25:15
had created
25:16
a potential risk
25:17
to the veterans
25:18
and peers.
25:19
And that's
25:20
why she
25:21
detailed them.
25:21
So why isn't
25:23
that sufficient?
25:24
I mean,
25:24
same supervisor,
25:25
same position,
25:27
same risk.
25:28
Appellant Attorney (Christopher Stephen Stewart)
I think it comes
25:30
down to,
25:30
and I agree
25:31
with what comes
25:33
down to the
25:34
potential risk
25:37
to veterans.
25:40
The VA
25:40
has no idea
25:40
and I don't
25:41
believe the
25:41
VA has
25:42
any idea
25:42
based upon
25:43
the record
25:43
we have here
25:44
what the
25:45
potential risk
25:45
to veterans
25:46
was and if
25:47
that is similar
25:48
to the alleged
25:49
potential risk
25:50
of veterans
25:50
that Carlson
25:51
committed.
25:52
We don't
25:52
know that
25:53
based upon
25:53
this record.
25:54
So I don't
25:54
think we can
25:55
allege it
25:56
or outline
25:57
and I don't
25:57
think the VA
25:58
can stand
25:58
these individuals
26:00
being similarly
26:00
situated because
26:01
we don't know
26:02
that information.
26:03
Judge Moore
Well,
26:03
so Ms.
26:04
Carlson
26:05
was accused
26:07
of delaying
26:09
patient care.
26:10
That was
26:11
the subject
26:12
of the investigation.
26:13
Is that correct?
26:14
So delaying
26:16
patient care
26:16
was described
26:17
by Ms.
26:18
Fouch
26:19
as being
26:19
extremely
26:20
alarming
26:21
and she was
26:22
concerned
26:23
because that
26:23
puts veterans
26:25
at risk.
26:26
Sounds very,
26:27
very serious.
26:28
Is that fair?
26:29
Appellant Attorney (Christopher Stephen Stewart)
Fair but
26:31
to the point
26:32
we made in
26:33
our brief,
26:34
an email
26:48
that nine months
26:50
and we make
26:57
an argument
26:57
of that in
26:58
our brief
27:02
because of
27:03
the delay.
27:03
So I believe
27:07
to finish
27:09
this topic,
27:10
we believe
27:10
there's not
27:10
sufficient evidence
27:12
within this
27:12
or substantial
27:13
evidence
27:13
within this
27:14
record to
27:14
support
27:14
factor one
27:21
in favor
27:31
of car
27:32
factor one
27:32
in favor
27:33
of the VA.
27:37
Judge Moore
Please go ahead.
27:39
Appellant Attorney (Christopher Stephen Stewart)
record
27:40
before this
27:41
court
27:42
that there's
27:42
not substantial
27:43
evidence
27:43
of the
27:46
administrative
27:46
judge.
27:47
I thank
27:52
Judge Moore
both counsel.
27:53
This case
27:53
is taken
27:54
under submission.
27:56
Thank you.
27:58
Appellant Attorney (Christopher Stephen Stewart)
The honorable
27:59
court is
27:59
adjourned
28:00
until tomorrow
28:00
morning at
28:01
10 a.m.