NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3211

GARY DILORENZO, Petitioner,

v. DEPARTMENT OF VETERANS AFFAIRS, Respondent. Gary DiLorenzo , of Boca Raton, Florida, pro se. Dawn E. Goodman , Trial Attorney, Commercial Li tigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With her on the brief were Gregory G. Katsas , Acting Assistant Attorney General, Jeanne E. Davidson , Director, and Reginald T. Blades, Jr. , Assistant Director. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3211

GARY DILORENZO, Petitioner,

v. DEPARTMENT OF VETERANS AFFAIRS, Respondent.
Petition for review of the Merit Syst ems Protection Board in AT1221060015-B-1

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DECIDED: October 10, 2008

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Before RADER and SCHALL, Circuit Judges , and ALSUP, District Judge

. * PER CURIAM. DECISION In this whistle-blower action, petitioner Gary DiLorenzo, formerly employed as a probationary employee with t he Department of Veterans A ffairs (“DVA”), appeals from an order of the Merit Systems Protection Board holding that DVA complied with the Whistleblower Protection Act when DiLorenzo was discharged. See, DiLorenzo v. Dep’t of Veterans , No. AT-1221-06-0015-B-1 (M.S.P.B. Ma r. 29, 2007)(“Initial Decision”);

* Honorable William H. Alsup, District Judge, United States District Court for the Northern District of California, sitting by designation.DiLorenzo v. Dep’t of Veterans Affairs , No. AT-1221-06-0015-B-1 (M.S.P.B. Feb. 6, 2008) (Decision of the Boar d denying petition for review of the Initial Decision .). For the reasons stated below, we affirm

. I. BACKGROUND On March 2, 2005, DiLorenzo was appointed as a certified re spiratory-therapy technician by DVA for the VA Medical Center in Miami. The appoint ment was subject to an initial probationary period of one year. On Marc h 23, DiLorenzo approached his supervisor, James Vance, with his concern that the staff was not using the proper methods for dispensing certain medications. This was the protected disclosure. DiLorenzo then asked for permission to approach the pharmacy students about the subject. Before the Board, Vance granted t he request. Later on that same day, Vance testified, he met with DiLorenzo to ask him what he found out from the pharmacy students. According to Vance, DiLorenzo st ated that the hospital had been “doing them all wrong” and that the staff hospital was guilty of “culpabl e negligence.” DiLorenzo also purportedly explained to Vance the appr opriate method that should have been employed. After DiLorenzo left the room, Vance test ified that Eli Germane, a respiratory therapist who had been assigned to work with DiLorenzo that day, approached him and stated that he (Germane) overhe ard a pharmacist student say “t hat they would look into it” --- not that the procedures in question were improper. Both Vance and Germane documented the incident with note s on March 30. Vance testified that he felt “lied” to by DiLorenzo.

2008-3211 2On two occasions, DiLorenzo was alleged to have acted outside the scope of his respiratory-therapy duties. First , Dixianne Marchant (Vance’s supervisor) testified that on March 21, Marlene Acosta, a respiratory therapist, told her that she was with DiLorenzo at the nurses’ stat ion when she left to get so me equipment. When Acosta returned, DiLorenzo informed her that he was called by housekeeping to a patient’s room because the patient had pulled out his IV from his arm. DiLorenzo stated that he proceeded to apply pressure to the arm, which Acosta replied was an appropriate measure. DiLorenzo then told Acosta th at he was also an EMT and knew how to reconnect the IV. Acosta then advised DiLor enzo that connection of IVs was something the nurses had to handle and was outside t he scope of his duties as a respiratory therapist. Costa summarized t he incident in an email writt en to Marchant on March 31. Second , on March 24, DiLorenzo was assigned to work with Christina Calvo, another therapist. In an email dated April 4 sent to Marchant, Calvo stated that she observed DiLorenzo checking various connecti ons for the IVs, catheters, and unit monitors for a patient. Calvo then told DiLorenzo that he should not interfere with the connections because it was the responsibilit y of the registered nurses. DiLorenzo, according to Calvo’s email, ignored her and continued to check the connections until the patient’s nurse reiterated Calv o’s remarks. Vance testifi ed he was called to intervene and subsequently reassigned DiLorenzo to anot her therapist. As a result of the incident, Marchant testified, she setup a meeting with DiLorenzo and Adrian Balaguer, an administrative officer, to remind DiLorenzo the appropriate scope of his job duties and responsibilities.

2008-3211 3Marchant also testified that severa l members of her team reported being “uncomfortable” around DiLor enzo and noted that one shi ft supervisor, Emilia DiazBencomo, told her that DiLorenzo was not a “t eam player.” In an email dated March 30 to Michael Kraus, in human resources, Marchant summarized the complaints: This morning I have been made aware of several other issues, which have my staff on edge, understandabl y so. This morning he came in early and was making copies of policies, which in itself is nothing, he has told some RT staff that he works part-time fo r a malpractice lawyer doing case reviews and he is reviewing charts here to a degree more then [sic] would be expected and finally, the staff are under the impression that he is using his cell phone to record things being said. It seems, and I have seen it also, when he is in conversation he starts handling his cell phone. When asked he says he is putting numbers in, wh ich is what he told me. I told him I had already given him my numbers several times. He put the phone away at that point. Jim has told me he is using legal terms for things he is “finding” and has made stat ements to him that we (RT) are doing things “against the law.” My staff is paranoid when he is around, I have already had staff calling and coming to my office with their feeling regarding th is individual. Needless to say the working environment is not pleasant in RT and is getting worst [sic] each day. I realize we have to follow rules and for good reason and in this case more so, but something has to be done as soon as possible. Marchant then testified that her Medical Director, the Se rvice Chief, and Krause all agreed that DiLorenzo “could potenti ally become a safety hazard.” Kraus then forwarded the matter to Larry Brinkman, chief of human resources, who ultimately made the decision to terminat e DiLorenzo. The termination letter, dated May 2, stated the following: The Chief, Medical Service has recommended that you be terminated during your trial period based on the following reasons: During your time with the VA, you have demonstrated behaviors which do not promote the efficiency of the servic e. You also have acted outside the scope of your duties and m anagement instructions.

2008-3211 4Brinkman testified that t he VA Medical Center termi nated roughly 25 probationary employees a year --- many for “very sim ilar” reasons as DiLorenzo. Brinkman also testified that he was aware of DiLorenzo’s disagreement over how medication was dispersed and checked with a s pecialist who advised that t he VA Medical Center was doing nothing wrong. Regardless of the disagreement, however, Brinkman stated that DiLorenzo would have been terminated based on hi s “inability to get along with others” and his “problem following instructions.” * * * After exhausting his admini strative remedies before t he Office of Special Counsel (“OSC”), DiLorenzo filed an individual right of action (“IRA”) appeal with the Merit Systems Protection Board alle ging that DVA had violated the Whistleblower Protection Act, 5 U.S.C. 1211. In a decision dated Fe bruary 10, 2006, the adm inistrative judge dismissed DiLorenzo’s appeal for lack of jurisd iction. The full board then vacated the decision and remanded the case fo r further adjudication of the jurisdictional issues and, if necessary, adjudication on the merits. Af ter holding two hearings, the administrative judge determined that jurisdiction was es tablished because DiLo renzo had made nonfrivolous allegations that he made a protected disclosure and that the disclosure was a contributing factor to DVA’s dec ision to terminate. The administrative judge also found, however, that DVA had establis hed by clear and convincing evidence that it would have terminated DiLorenzo’s employment absent hi s protected disclosu res. DiLorenzo’s request for corrective action was therefore deni ed. The decision was rendered final on February 6, 2008, and the full board denied Di Lorenzo’s petition for review with one

2008-3211 5board member dissenting on the ground that DVA had not carried its burden by clear and convincing evidence. II. DISCUSSION A. Legal Standard. This court must affirm a Board decisio n unless the petitioner establishes under 5 U.S.C. 7703(c) that it is: (1 ) arbitrary, capricious, an abus e of discretion, or otherwise not in accordance with law; (2) obtained without adherence to procedures required by law, rule, or regulation; or (3) unsupported by substantial evidence. Kewley v. Dep’t of Health and Human Services , 153 F.3d 1357, 1361 (Fed. Cir. 1998). 1 The Board has jurisdiction over an IRA appeal where the petitioner has exhausted all administr ative remedies and has made non-fr ivolous allegations that: (1) he or she engaged in whistleblo wing activity by making a protected disclosure under 5 U.S.C. 2302(b)(8) and (2) the disclosure was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C. 2302(b)(8). Fields v. DOJ , 452 F.3d 1297, 1302 (Fed. Cir. 2006). On ce jurisdiction is established, the petitioner must show by a preponderance of the evi dence that the protected disclosure was a contributing factor to t he personnel action. If the disclosure was a contributing factor, then the burden shifts to the agency to show by clear and convincing evidence that it would have taken the same personnel action in the absence of the disclosure. See 5. U.S.C. 1221(e). With respect to evidence expressly relied on by the administrative judge, we must affirm a finding of independent causation unless the petitioner establishes that it is unsupported by subs tantial evidence. See 5 U.S.C.

1 Unless indicated otherwise, internal citations are omitted from all quoted authorities.

2008-3211 67703(c)(3). When determining whether the agency has satisfied its burden the following three factors will be considered: (1) the st rength of the agency’s evidence in support of its personnel action; (2) the ex istence and strength of any mo tive 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 are not whistleblowers but who are otherwise similarly situated. Carr v. Social Sec. Admin. , 185 F.3d 1318, 1323 (Fed. Cir. 1999). Here, the administrative judge determined that DiLorenzo had satisfied his initial burden to show that the disclosure was a cont ributing factor in the decision to terminate his employment. We theref ore limit review to the B oard’s determination that DVA satisfied its burden by clear an d convincing evidence that it would have taken the same personnel action in the absenc e of the disclosure. B. The AJ’s Decision Was Supported by Ample Evidence. As an initial matter, DiLor enzo argues that the majority of evidence relied on by the AJ consisted of inadmi ssible and non-corroborated hearsay testimony. “It has long been settled, however, that hearsay evidence may be used in Board proceedings and may be accepted as preponderant evidence even without corroboration if, to a reasonable mind, the circumstances are such as to lend it cr edence. In addition, we have held that procedural matters such as the admissibility of evidence, including hearsay, fall within the sound discretion of the Board and its AJs.” Kewley , 153 F.3d at 1364. 2

2 DiLorenzo also failed to raise any hearsay objection before the AJ and has therefore waived any such objection now. See Akro Corp. v. Luker , 45 F.3d 1541, 1546 (Fed. Cir. 1995).

2008-3211 7DiLorenzo next contends that he was pr ecluded from presenting evidence to support his case. This argument is wit hout merit. The transcript for the hearing demonstrates that DiLorenzo wa s given an opportunity to pres ent whatever evidence he desired. After submitting an eight-page declara tion, the AJ permitted DiLorenzo to offer additional evidence: Administrative Judge: So you want to make an additional statement under oath in addition to thos e eight pages or not? The Witness: Okay, I won’t, no. Administrative Judge: You can if you want. DiLorenzo then submitted additional documents he wanted in evidence. In short, DiLorenzo was not precluded at all from presenting his case. Evaluating the Carr factors here, we affirm the AJ’s findings. First , the agency’s decision to terminate DiLorenzo’s employment is supported by substantial evidence. On two separate occasions, DiLorenzo had to be told not to involve himself with the connections of IVs, catheters, and unit monitors. The firs t incident involving Marlene Acosta, by itself, was not particularly alar ming. Three days after the first episode, however, DiLorenzo once again had to be told that his res ponsibilities did not include IVs, catheters, and unit monitors. This ti me, his assigned respiratory therapist for the day, Christine Calvo, stated in email that DiLorenzo “disregarded [ her] statements” until a registered nurse stepped in. Although the re cord is unclear as to whether DiLorenzo actually connected or disconnected any IV , Calvo believed DiLor enzo was ignoring her instructions. Vance testified that he was soon called to intervene and assigned DiLorenzo to another respiratory therapist. The AJ also credi ted Vance’s testimony that DiLorenzo had lied to him about the conver sation with the pharmacy students regarding

2008-3211 8whether the medications were being properly administered. Vance’s version of the incident was evidenced by a note writ ten by Eli Germane who overheard the conversation with the pharmacy students. V ance subsequently reported the incident to his supervisor, Marchant. Next, Marchant testified that DiLor enzo had problems working with the rest of the staff, was not a team player, and was making other employees generally feel uncomfortable. S he then spoke to her Medical Director, the Service Chief, and Krause who advised her that DiLorenzo’ s problems coul d potentially be a safety hazard. Second , there is no evidence indicating any moti ve to retaliate on the part of the agency officials involved in the decision to terminate. Significantly, DiLorenzo was never admonished when he approached Vance to discuss his concerns over implementing the proper met hods for dispensing medications . To the contrary, Vance encouraged DiLorenzo to approach the pharmacy student s to address the subject. In addition, although Brinkman (the official in charge of making t he final decision to terminate) admitted he was aware of DiLorenz o’s challenges, there is no evidence that he took them into account when making his decision. Brinkman in stead testified that DiLorenzo was primarily released because he could not get along with his co-workers and supervisors. 3

3 In arguing that the agency did have a motive to retaliate, DiLorenzo relies on the deposition of Adrian Balaguer, the administrative o fficer at VA’s Miami medical center. That deposition, howev er, was not presented to the administrative judge. It was not filed with the Board until DiLorenzo attached it to his pet ition for full Board review, i.e. , after the administrative judge issued his decision. 5 C.F.R. 1201.58 provides, “[o]nce the record closes, no additional evidence or argument will be accepted unless the party submitting it shows that the ev idence was not readily available before the record closed.” Here, the deposition was tak en weeks before the heari ng in front of the AJ. DiLorenzo argues that t he only reason the deposition was not a part of the record

2008-3211 92008-3211 10 Third , there is substantial evidence demonstrating that the agency treated DiLorenzo no differently than other employees who did not make protected disclosures. Brinkman testified that appr oximately 25 probationary empl oyees were terminated each year --- many for similar reasons as DiLorenzo. While DiLorenzo argues that Brinkman’s testimony was lacking and unsubs tantiated, t here is simply no other evidence on the record indicating otherwise. III. CONCLUSION Based on the Board’s findings, which we hold are supported by substantial evidence, we sustain the Board’s decision that DVA did not violate the WPA by terminating DiLorenzo from his posi tion at the VA Medical Center.

before the AJ is because the AJ would not permit him to ent er it. DiLorenzo, however, fails to cite or quote to any specific passa ges from the transcript where the AJ refused to allow the Balaguer deposit ion. Without such reference, we cannot accept DiLorenzo’s argument. DiLorenzo has therefore not met his burden. Accordingly, the Balaguer deposition will not be considered.