Kirsten Williams v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KIRSTEN WILLIAMS, DOCKET NUMBER

Appellant, DE-1221-24-0295-W-2 v.

DEPARTMENT OF VETERANS DATE: August 27, 2026 AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1 Kirsten Williams , Lakewood, Colorado, pro se.

Raqueal Jones , Esquire, Fayetteville, Arkansas, for the agency.

BEFORE James J. Woodruff II, Chairman Henry J. Kerner, Vice Chairman FINAL ORDER

The appellant has filed a petition for review of the initial decision, which denied her request for corrective action in her individual right of action (IRA) appeal. 2 Generally, we grant petitions such as this one only in the following circumstances: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this appeal, we conclude that the petitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review. Except as expressly MODIFIED to clarify the analysis of the Carr factors in finding that the agency proved by clear and convincing evidence that it would have taken the same actions in the absence of the appellant’s whistleblowing, we AFFIRM the initial decision.

BACKGROUND

On February 12, 2023, the agency appointed the appellant to a Nurse Practitioner position at the VA Eastern Colorado Health Care System, subject to a 2-year probationary period. Williams v. Department of Veterans Affairs, MSPB Docket No. DE-1221-24-0295-W-1, Initial Appeal File (IAF), Tab 14 at 311. Approximately 1 month into her tenure, the appellant began complaining about the scheduling practices of the nurse practitioner staff in the intensive care unit (ICU), specifically, that they use a seniority system, which she believed to be contrary to the collective bargaining agreement. Id. at 26, 139-42. Then, in November and December 2023, the appellant’s first-line supervisor notified her that her coworkers had complained that she engaged in deficient clinical care and unprofessional conduct. Id. at 26, 270-73, 278, 281-83.

In January and February 2024, the appellant and a coworker spoke to a Denver Post reporter regarding the agency’s “dirty bed swap policy,” which allowed employees to rapidly move a patient out of an ICU room and into the hallway or an alternate room while an emergent patient was moved into the room, without an opportunity for terminal cleaning, when the hospital was at or near capacity. IAF, Tab 11 at 35; Williams v. Department of Veterans Affairs, MSPB Docket No. DE-1221-24-0295-W-2, Appeal File (W-2 AF), Tab 22 at 3.

Subsequently, on March 27, 2024, the Denver Post published an article entitled, “Unsafe culture permeates Aurora VA’s ICU, staffers allege. The message? ‘Shut up and do what you’re told,’” which referred to the dirty bed swap policy. W-2 AF, Tab 17 at 18-24.

During this same timeframe, i.e., January and February 2024, the appellant’s first-line supervisor, acting on the advice of the Medical Executive Committee (MEC) and in consultation with the Associate Director of Patient Care Services/Nurse Executive and Human Resources, initiated a Summary Review Board (SRB) 3 to address the appellant’s performance during her probationary period. Id. at 59-60; IAF, Tab 24 at 25. Then, on or around April 10, 2024, the MEC approved a Focused Clinical Care Review (FCCR) based on “multiple concerning complaints” received by the appellant’s second-line supervisor regarding her clinical care skills. W-2 AF, Tab 17 at 59-60. Immediately after the initiation of the FCCR, the agency suspended the appellant’s clinical privileges and detailed her to a pulmonary provider position that limited her direct patient care duties. IAF, Tab 6 at 16, Tab 14 at 151.

On or around May 6, 2024, the SRB concluded its review and determined that the appellant had been deficient in her clinical conduct and performance. IAF, Tab 14 at 155. Accordingly, the SRB recommended that the agency not retain the appellant, which was approved by the Associate Director of Patient Care Services/Nurse Executive, who was at the time acting Interim Director. Id. Effective May 23, 2024, the agency terminated the appellant. 4 Id. at 23; IAF, Tab 4 at 4-5.

The appellant filed an IRA appeal, and after finding jurisdiction, the administrative judge issued an initial decision finding that the appellant proved her prima facie case of whistleblower reprisal, namely, that she made protected disclosures in her communications with the Denver Post reporter in January and February 2024 that were a contributing factor in the agency’s decision to detail her and terminate her. W-2 AF, Tab 28, Initial Decision (ID) at 28. However, she found that the agency proved by clear and convincing evidence that it would have taken the same actions in the absence of the appellant’s whistleblowing and therefore denied the request for corrective action. ID at 48-49.

The appellant has filed a petition for review arguing, among other things, that the administrative judge erred in finding that the agency proved that it would have taken the same actions in the absence of her whistleblowing, asserting that her coworkers’ complaints were motivated by a retaliatory animus due to her status as a whistleblower. Petition for Review (PFR) File, Tab 1 at 4-5. The agency did not file a response to the appellant’s petition for review.

DISCUSSION OF ARGUMENTS ON REVIEW Under the Whistleblower Protection Enhancement Act (WPEA), at the merits stage of the appeal, the appellant must prove by preponderant evidence that she made a protected disclosure under 5 U.S.C. § 2302(b)(8), or engaged in a an activity protected by 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and that such disclosure or activity was a contributing factor in an agency’s personnel action. Smith v. Department of the Army, 2022 MSPB 4, ¶ 13. If the appellant meets that burden, the agency is then given the opportunity to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure. Id.; see 5 U.S.C. § 1221(e)(1)-(2). In determining whether an agency has met its burden, the Board will consider all relevant factors, including the following: (1) the strength of agency’s evidence in support of its action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who do not engage in such protected activity, but who are otherwise similarly situated. Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999); see Duggan v. Department of Defense, 883 F.3d 842, 846 (9th Cir. 2018); Soto v. Department of Veterans Affairs, 2022 MSPB 6, ¶ 11.

Neither party disputes the administrative judge’s finding that the appellant established a prima facie case of whistleblower reprisal, and therefore, we discern no basis to disturb it. ID at 16-28; Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (stating that the Board will not disturb an administrative judge’s findings when she considered the evidence as a whole, drew appropriate inferences, and made reasoned conclusions on issues of credibility); Broughton v. Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987) (same). However, while we agree with the administrative judge’s finding that the agency proved by clear and convincing evidence that it would have detailed and terminated the appellant in the absence of her whistleblowing, we find it appropriate to clarify the analysis of the Carr factors. ID at 48-49.

Regarding the first Carr factor, although we agree with the administrative judge’s finding that the agency presented strong evidence in support of its decision to terminate the appellant, we disagree with her finding that the agency’s evidence in support of its decision to detail the appellant is lacking because it did not produce evidence regarding the underlying complaints that triggered the FCCR. ID at 29-31. Here, the agency presented evidence that the MEC approved an FCCR due to the fact that the appellant’s second-line supervisor reported that she had received “multiple concerning complaints” regarding the appellant’s clinical care skills. W-2 AF, Tab 17 at 59-60. The fact that the MEC found that there was a sufficient basis to approve an FCCR in order to review the appellant’s clinical skills is sufficient evidence to justify the agency’s decision to detail her to a position limiting her direct patient care duties during the pendency of that review. Accordingly, we find that the agency presented strong evidence in support of both the appellant’s detail and the termination. 5

Next, regarding the second Carr factor, while we agree with the administrative judge’s finding that the retaliatory animus of the appellant’s coworkers can be imputed onto the agency officials responsible for the detail and removal, the record does not support a finding that the appellant’s coworkers had a “strong motive” to retaliate against the appellant due to her protected disclosures. 6 ID at 42-44. Notably, the appellant’s coworkers started complaining about her several months prior to her communications with the reporter. IAF, Tab 14 at 266, 270-73, 278, 281-83. Therefore, as the administrative judge acknowledged, the appellant’s coworkers were more likely motivated by a genuine concern for patient care or by the appellant’s repeated complaints about the ICU’s scheduling practices. 7 ID at 45. Further, to the extent that the appellant’s coworkers were motivated to complain about the appellant because of her communications with the reporter, such a finding is speculative at best. Therefore, we find that any motive to retaliate against the appellant for her protected disclosures is slight, and thus, the second Carr factor weighs slightly against the agency.

Finally, the administrative judge found that the third Carr factor weighed against the agency because it did not provide any evidence that it took similar actions against non-whistleblowers. ID at 48. However, an agency’s failure to produce comparator evidence does not require that the third Carr factor cut against the agency; it merely cannot weigh in its favor. See Smith v. General Services Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019) (finding that, to the extent the agency failed to introduce comparator evidence, the third Carr factor cannot support the agency); Smith, 2022 MSPB 4, ¶ 30. Accordingly, we find that the third Carr factor is neutral, or at most, cuts slightly against the agency.

In conclusion, while the second and third Carr factor cut slightly against the agency, the agency produced strong evidence in support of its decision to detail and terminate the appellant. Therefore, we agree with the administrative judge that the agency proved by clear and convincing evidence that it would have detailed and terminated the appellant regardless of her whistleblowing. 8 ID at 48-49.

NOTICE OF APPEAL RIGHTS 9

The initial decision, as supplemented by this Final Order, constitutes the Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of your claims determines the time limit for seeking such review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following summary of available appeal rights, the Merit Systems Protection Board does not provide legal advice on which option is most appropriate for your situation and the rights described below do not represent a statement of how courts will rule regarding which cases fall within their jurisdiction. If you wish to seek review of this final decision, you should immediately review the law applicable to your claims and carefully follow all filing time limits and requirements. Failure to file within the applicable time limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review below to decide which one applies to your particular case. If you have questions about whether a particular forum is the appropriate one to review your case, you should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking judicial review of a final Board order must file a petition for review with the U.S. Court of Appeals for the Federal Circuit, which must be received by the court within 60 calendar days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address:

U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of discrimination . This option applies to you only if you have claimed that you were affected by an action that is appealable to the Board and that such action was based, in whole or in part, on unlawful discrimination. If so, you may obtain judicial review of this decision—including a disposition of your discrimination claims —by filing a civil action with an appropriate U.S. district court ( not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the district court no later than 30 calendar days after your representative receives this decision. If the action involves a claim of discrimination based on race, color, religion, sex, national origin, or a disabling condition, you may be entitled to representation by a court-appointed lawyer and to waiver of any requirement of prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the EEOC’s Office of Federal Operations within 30 calendar days after you receive this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, and your representative receives this decision before you do, then you must file with the EEOC no later than 30 calendar days after your representative receives this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the address of the EEOC is:

Office of Federal Operations Equal Employment Opportunity Commission P.O. Box 77960 Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or by a method requiring a signature, it must be addressed to:

Office of Federal Operations Equal Employment Opportunity Commission 131 M Street, N.E. Suite 5SW12G Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection Enhancement Act of 2012 . This option applies to you only if you have raised claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). If so, and your judicial petition for review “raises no challenge to the Board’s disposition of allegations of a prohibited personnel practice described in section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of competent jurisdiction. 10 The court of appeals must receive your petition for review within 60 days of the date of issuance of this decision. 5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for the Federal Circuit, you must submit your petition to the court at the following address:

U.S. Court of Appeals for the Federal Circuit 717 Madison Place, N.W. Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to the U.S. Court of Appeals for the Federal Circuit, you may visit our website at http://www.mspb.gov/probono for information regarding pro bono representation for Merit Systems Protection Board appellants before the Federal Circuit. The Board neither endorses the services provided by any attorney nor warrants that any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their respective websites, which can be accessed through the link below: http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________

Gina K. Grippando Clerk of the Board

Washington, D.C.