N OTE : This disposition is nonprecedential.



# United States **Court of Appeals**  **for the Federal Circuit**

______________________

DANA B. GRIESBACH,
Petitioner

v.

DEPARTMENT OF VETERA NS AFFAIRS, Respondent

______________________

2017

- 1510

______________________

Petition for review of the Merit Systems Protection
Board in No. AT

- 1221

- 16

- 0076 -W- 1.

______________________

Decided: August 9, 2017

______________________

D ANA B. G RIESBACH , Tuscaloosa, AL, pro se.

I SAAC B. R OSENBERG , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by
E LIZABETH M. H OSFORD

, R OBERT E. K IRSCHMAN

, J R

., C HAD A. R EADLER

.

______________________

Before M OORE

, S CHALL

, and O’M ALLEY

, Circuit Judges.GRIESBACH v. DVA 2

P ER C URIAM

. Dana Griesbach appeals from a Merit Systems Prote ction Board (“Board”) decision denying her request for
corrective action pursuant to the Whistleblower Prote ction Act (“WPA”) . For the reasons discussed below, we affirm

.
B ACKGROUND

Ms. Griesbach was appointed to the position of Nurse
P ractitioner at the Tuscaloosa Veterans Administration (“VA”) Medical Center in August 2008. She w orked in the mental health unit, treating pat ients admitted to the

cente r’s homeless domiciliary unit. I n September 2014, the VA announced a vacancy for the position of Certified Registered Nurse Practitioner (“CRNP”) in Research and Development Service, to which Ms. Griesbach applied.
Ms. Griesbac h interviewed for the position, but she was
not selected.

Ms. Griesbach filed a complaint with the Office of Special Counsel (“OSC”) on March 1 4, 2015, alleging whistleblower retaliation by the VA when it did not select
her for the CRNP research position and because it alle gedly fil ed an anonymous complaint against her license to the Alabama Board of Nursing. On August 27, 2015, the
OSC informed Ms. Griesbach that it had terminated its inquiry into her whistleblow er re taliation claim and
notified her of her right to seek cor rective action from the
Board.

Ms. Griesbach filed an individual right of action (“IRA”) appeal to the Board, alleging the VA retaliated against her for protected disclosures. She alleged she
raised concerns to all levels of m anagement regarding a
deficit in needed medical services in the mental health
unit and that a number of these disclosures wer e made at open forum meetings. Among other arguments, she asserted the VA changed the job description for the CRNPGRIESBACH v. DVA 3

research positi on after she applied , which gave the selec tee preferential treatment.

O n November 2, 2015, the Administrative Judge (“AJ”) notified the parties of the requirements to establish Board jurisdiction over Ms. Griesbach’s IRA appeal. After
Ms. Griesbach submitted a response and the VA replied,
the AJ issued an o rder c losing the r ecord on January 14,
2015. The AJ determined Ms. Griesbach had exhausted
her administrative reme dies before the OSC. The AJ
determined Ms. Griesbach made n on- frivolous allegations that she made protected disclosures that were a contri buting factor in the VA’s selection decision , but that she
failed to make a non

- frivolous allegation that the VA
retaliated when someone filed an anonymous complaint against her with the Alabama Board of Nursing

. In the Initial Decision, the AJ considered
Ms. Griesbach’s assertions that she made protected disclosures when she informed her supervisors, Rebecca Meyer and Carlos Berry

, that she was seeing patients
that “were more c omplex than [her] scope of practice,”
when she informed the director of the facility, Maria
Andrews

, that the “Center was circumventing the scree ning process for patients,” and when she informed
Ms. Meyer that she “overloaded patient admissions with insufficient coverage.” The AJ found Ms. Griesbach failed to prove that she made a protected disclosure that she reasonably believed evidence s a violat ion of any law, rule, or regulation or a substantial and specific dang er to public health or safety. The AJ found that even if
Ms. Griesbach’s disclosures were protected, she failed to establish that her whistleblowing activity was a contri buting factor t o her non

- selection for the CRNP research position because there was no evidence that Dr. Lori Davis, the selecting official, knew of the disclosures.
Because the AJ determined Ms. Griesbach failed to esta blish a prima facie case of whistleblower retaliation, it did

not reach whether the VA would have taken the sameGRIESBACH v. DVA 4

personnel action in the absence of any protected discl osure under 5 U.S.C. § 1221(e)(2)

.
Ms. Griesbach petitioned for review of the Initial D ecision. By order dated January 5, 2017, the AJ’s Initial Decision became the final decision of the Board pur suant
to 5 C.F.R. § 1200.3(b). Ms. Griesbach ap peals. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

D ISCUSSION

Our review of the Board’s decision is limited by sta tute. We must affi rm a final decision of the Board unless it is arbitrary, capricious, an abuse of discretion, or ot herwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evide nce. 5 U.S.C. § 7703(c). Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol. Edison Co. v.
Nat’l Labor Relations Bd. , 305 U.S. 197, 229 (1938). Whether the Board has jurisdi ction over an appeal is a question of law we review de novo. Johnston v. Merit Sys.
Prot. Bd. , 518 F.3d 905, 909 (Fed. Cir. 2008).

Under the WPA, an agency employee with authority to take a “personnel action” against a government e mployee or applicant for employment may not do so in retaliation for certain protected disclosures. See

5 U.S.C. § 2302(b)(8)(A). In particular, a personnel action may not be taken “because of any disclosure of info rmation by an employe e or applicant which the e mployee or applicant reasonably believes evidenc es (i) any viol ation of any law, rule, o r regulation, or (ii) gross misma nagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety

. . . .” Id. The Board will order correc tive action if the employee or applic ant demonstrates that the protec ted disclosure was a “ contributing factor ” in the personnel
action . 5 U.S.C. § 1221(e). An employee or applicant mayGRIESBACH v. DVA 5

make this showing through circumstantial evidence, such as evidence that “the official taking the personnel action knew of the disclosure or protected activity” and “the personnel action occurred within a period of time such that a reasonable person could conclude that the discl osure or protected activity was a contributing factor in the personnel action.” Id. But corrective action may not be ordered after such a showing if “the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absenc e of such discl osure.” Id. § 1221(e)(2)

. On appeal, Ms. Griesbach argues her disclosures ind icate “consistent management disregard for facility policy
and the standard of care.” Pet’r . Br. at 2. She argues facility policy an d the standard of care comprise directives and guidelines governing the medical practice of all health care providers and the suppo rt ing obligations of
management. She argues the violation s of these regul ations meet the requirements for protected disclo su res.
Substantial evidence supports the Board’s finding s that Ms. Griesbach failed to identify any law, rule, or regulation being violated and failed to offer evidence that her statements clearly implicated an identifiable violation of law, rule, or regulat ion. The Board found that
Ms. Griesbach’s disclosures regarding seeing patients more complex than her scope of practice, the circumve ntion of screening processes for patients, and being ove rloaded with patient admissions fail to identify any law, rule, or regulation that has been violated. T he WPA’s requirement that an employee identify a specific law, rule, or regulation “does not necessitate the identification of a statutory or regulatory provision by title or number, when the employee’s statements and the circumstances surrounding the making of those statements clearly implicate an identifiable violation of law, rule, or regul ation.” Langer v. Dep ’ t of the Treasury , 265 F.3d 1259, 1266 (Fed. Cir. 2001). However, substantial evidenceGRIESBACH v. DVA 6

supports the Board ’s finding that Ms. Griesbach’s discl osures fail to clearly implicate an identifiable violation of law, rule, or regulation.

Ms. Griesbach also argues her disclosures evidence a substantial and specific danger to public health or safety

, especially in light of her email describing concerns for managing medically complex patients as the sole medical provider in the 48

- bed homeless domiciliary unit

. She argues the Board’s decision inferred that because there was disagreement among the health care providers over patient stability or because no harm befell a patient admitted to the domiciliary, her concerns were exaggera ted and her disclosures were unprotected. She argues the decision did not account for “the unpredictable nature of complex medical iss ues, the limiting confines of the pra ctice setting, and the admonition to ‘do no harm.’” Pet’r.
Br. at 4.

Even if Ms. Griesbach’s disclosures did evidence a substantial and specific da nger to public health or safety

, Ms. Griesbach failed to establish th at the protective disclosures were a contributing factor to the personnel
action. S ubstantial evidence supports the Board’s finding
that Ms. Griesbach failed to prove Dr. Davis knew of the
disclosures. The Board credited Dr. Davis’ s declaration denying k nowledge of Ms. Griesbach’s alleged protected
disclosures. It credited Dr. Davis’ s declaration that whe n she arrived late to an open forum meeting , screening irregularities and coverage issues were not being di scussed. The Board explained that Ms. Griesbach’s emails regarding patient safety and quality of care were not sent
to Dr. Davis, even though they were addressed to several individuals, and it credited Dr. Davis’ s declaration that her supervisor, Dr. Schnier, did not influence her sele ction.

In addition to challenging the Board’s denial of corre ctive action, Ms. Griesbach argues the Board erred inGRIESBACH v. DVA 7

excluding her whistleblower retaliation claim based on the filing of an anonymous complaint against her license to the Alabama Board of Nursing. For IRA appeals, “the Board’s jurisdiction is established by nonfrivolous alleg ations that the [employee] made a protected disclosure that was a contributing factor to the personnel action taken or proposed.” Johnston , 518 F.3d at 909 (quoting Stoyanov

v. Dep’t of the Navy , 474 F.3d 1377, 1382 (Fed. Cir. 2007)).
We see no error in the Board’s decision to exclude
Ms. Griesbach’s claim based on the anonymous complaint
because

, as the AJ noted in the order closing the record, such a complaint is not a personnel action as defined by

5 U.S.C. § 2302(a)(2).

For the foregoing reasons , we affirm the Board’s dec ision. We have considered Ms. Griesbach’s remaining arguments and find them unpersuasive.

C ONCLUSION

For the foregoing reasons, the decision of the Boar d is affirmed

.
AFFIRMED

C OSTS

.
No costs.