UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

AGNES C. COLLIER,

Appellant,

v. 

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency. 

DOCKET NUMBER

CH-1221-14-0520-W-1

DATE: November 30, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Denise M. DeBelle, Esquire, and Tim Huizenga, Chicago, Illinois, for the 

appellant. 

Robert Vega, Esquire, Hines, Illinois, for the agency. 

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

denied her request for corrective action. Generally, we grant petitions such as 

this one only when: the initial decision contains erroneous findings of material 

fact; the initial decision is based on an erroneous interpretation of statute or 

 

1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 
2

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 and AFFIRM the initial decision, 

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 The appellant, a Certified Nursing Assistant (CNA) at the agency’s 

Jesse Brown Medical Center, alleged in this individual right of action (IRA) 

appeal that the agency terminated her on July 5, 2012, during her 1-year 

probationary period, in retaliation for making protected whistleblowing 

disclosures regarding a patient. Initial Appeal File (IAF), Tab 1. As set forth in 

the initial decision, on March 6, 2012, the patient underwent a Chronic Total 

Occlusion Recanalization procedure, which involved the insertion of catheters in 

his right radial and femoral arteries, after which he was reported as fully awa ke, 

alert, and oriented. IAF, Tab 44, Initial Decision (ID) at 2; IAF, Tab 35 at 32, 34, 

38. Because of the need to limit his movement, he was transferred to the 

telemetry unit around 3:15 p.m. in the same sheets and gown used in the 

procedure. ID at 3; IAF, Tab 36 at 31-32. As a result, there was dried blood on 

him when he arrived. ID at 3; IAF, Tab 42, Nov. 20, 2014 Hearing Transcript 

(HT-1) at 19-20, Tab 43, Nov. 21, 2014 Hearing Transcript (HT-2) at 475-76. A

Registered Nurse (RN) who assumed the patient’s care at that point also reported 
3

that the patient was awake, alert, oriented, and had no bleeding or hematoma at 

the site of either catheterization as of 4:12 p.m. ID at 3; IAF, Tab 36 at 32-34. 

¶3 The appellant also was assigned to the telemetry unit and had begun her 

duty there at 3:30 p.m. that day. HT-1 at 16. A shift change occurred soon 

afterwards and a different RN, who was a nursing preceptor accompanied by a 

student nurse, took over responsibility for the patient’s care. HT-2 at 468, 

506‐08; IAF Tab 36 at 36. Under that RN’s guidance, the student nurse 

documented the patient’s status and progress, noting that he remained stable, 

alert, and oriented, and reporting that he had experienced no pain or hematoma at 

the catheterization sites as of 4:43 p.m. IAF, Tab 36 at 35-37. 

¶4 The patient experienced some bleeding in the early evening hours, around 

the time that a third RN took over the patient’s care in the telemetry unit. ID 

at 4-5; HT-1 at 19; HT-2 at 368, 370-71, 382-83. Although the administrative 

judge noted that the parties did not agree on who discovered the bleeding or even 

who provided the medical care to address it, notes entered by that third RN 

indicate that she successfully addressed the condition, applying pressure to the 

site to stop the moderate bleeding, notifying the doctor, and keeping close 

observation of the site of the bleeding. ID at 4-5 & n.4; IAF, Tab 30 at 93; HT-1

at 19, 22-23; HT-2 at 381-87. The patient was released the next day in stable 

condition with no complaints of pain or discomfort. ID at 5; IAF, Tab 30 at 94. 

On March 8, 2012, the appellant gave her superior a VA Form 119, Report of 

Contact (ROC) alleging that she reported to a nurse on March 6, that the patient 

“was left in dried blood.” IAF, Tab 29 at 10. The nurse reportedly responded 

that “nothing [would] be done about it.” Id. 

¶5 After holding a hearing, the administrative judge issued an initial decision 

in which he denied corrective action, explaining his decision with a 

comprehensive review of both the testimonial and documentary evidence before 

him. ID. He found that the appellant nonfrivolously alleged that she made a 

protected disclosure when she purportedly told her supervisor that she had 
4

discovered a patient unattended and bleeding from an incision to his femoral 

artery, and that she reasonably believed that the failure of an RN on duty to 

provide any medical care constituted a substantial and specific danger to that 

patient’s health and safety. ID at 13. He further found that the appellant 

nonfrivolously alleged that her disclosure was a contributing factor in the 

agency’s decision to terminate her less than 5 months into her 1-year probationary 

period, and also found that she had exhausted her administrative remedies before 

the Office of Special Counsel (OSC) as to that disclosure and personnel action, 

establishing jurisdiction over her IRA appeal. ID at 10, 13-14. 

¶6 However, the administrative judge found that the appellant failed to 

establish by preponderant evidence that a disinterested observer, with knowledge 

of the essential facts known to and readily ascertainable by the appellant, could 

reasonably conclude that her disclosure that a patient was left in dried-up blood

following a cardiac catheterization, and that an RN on duty refused to help and 

told her not to complain because nothing would be done, revealed a substantial 

and specific danger to public health and safety within the meaning of 5 U.S.C. 

§ 2302(b)(8)(A)(ii). ID at 15-25. 

¶7 In her petition for review, the appellant asserts that the administrative judge 

improperly overlooked disclosures she allegedly made on March 6 and 8, 2012,

regarding the patient’s care, analyzing only the March 8 ROC. Petition for 

Review (PFR) File, Tab 1 at 7-9; IAF, Tab 31 at 13-16. She also contends that 

the administrative judge should have examined these disclosures together with the

March 8 ROC because disclosures like these “could come in separate pieces 

rather than one tidy package” and asserting that such a disclosure should be 

sufficient if the pieces, taken together, serve to apprise the agency of a substantial 

and specific danger to public safety. PFR File, Tab 1 at 9‐10. The appellant 

further asserts that the patient did not receive the care required by agency 

protocols and that, under such circumstances, she had a reasonable belief of a 

substantial and specific danger to that patient. Id. at 10-15. In similar fashion, 
5

she argues that her assertion that an RN allegedly refused to care for the patient 

because the patient was not his responsibility also established a substantial and 

specific danger. Id. at 12-13. She insists that the patient was not just lying in 

dried blood and smoothly recovering from his cardiac catheterization, but was 

instead actively bleeding, and she argues that under a proper recitation of the 

facts, her disclosures were protected. Id. at 15-17. The agency responds in 

opposition to the appellant’s petition for review. PFR File, Tab 3. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶8 Federal agencies are prohibited from taking, failing to take, or threatening 

to take or fail to take, any personnel action against an employee in a covered 

position because of the disclosure of information that the employee reasonably 

believes to be evidence of a violation of law, rule, or regulation, gross 

mismanagement, a gross waste of funds, an abuse of authority, or a substantial 

and specific danger to public health and safety. 5 U.S.C. § 2302(a)(2), (b)(8). To 

establish a prima facie case of whistleblower reprisal, the employee must prove, 

by preponderant evidence, that she made a protected disclosure and that the 

disclosure was a contributing factor in a personnel action taken against her. 

5 U.S.C. § 1221(e)(1); Mastrullo v. Department of Labor, 123 M.S.P.R. 110, 

¶ 12 (2015). 

¶9 The proper test for determining if an employee had a reasonable belief her 

disclosure revealed misconduct described in 5 U.S.C. § 2302(b)(8) is whether a 

disinterested observer with knowledge of the essential facts known to and r eadily 

ascertainable by the employee could reasonably conclude that the actions of the 

Government evidenced wrongdoing as defined by the Whistleblower Protection 

Act (WPA). Chambers v. Department of the Interior, 602 F.3d 1370, 1379 n.7 

(Fed. Cir. 2010). Here, the appellant alleged that her disclosures were of a danger 

to public health and safety. IAF, Tab 5 at 17. The inquiry into whether an 

appellant disclosed danger that is sufficiently substantial and specific to warrant 
6

finding that it is protected whistleblowing “is guided by several factors, among 

these: (1) the likelihood of harm resulting from the danger; (2) when the alleged 

harm may occur; and (3) the nature of the harm, i.e., the potential consequences.” 

Chambers, 602 F.3d at 1376. 

The appellant established jurisdiction over her IRA appeal but f ailed to prove her 

claim on the merits. 

¶10 In an IRA appeal, the standard for establishing jurisdiction and the right to 

a hearing is an assertion of a nonfrivolous allegation, while the standard for 

establishing a prima facie case is that of preponderant evidence. Langer v. 

Department of the Treasury, 265 F.3d 1259, 1265 (Fed. Cir. 2001). We agree 

with the administrative judge that the appellant proved OSC exhaustion and made 

the requisite nonfrivolous allegations to establish jurisdiction over her IRA 

appeal, which involved potentially serious issues of patient neglect, which 

warranted a hearing on her whistleblowing claims.

2

 ID at 8-14. As discussed 

below, we also agree with his ultimate conclusion that, based on the evidence of 

record and the testimony before him, it was not credible that a disinterested 

observer in the appellant’s position, a seasoned health care professional with 

16 years of experience as a CNA, would consider the fact that this patient was 

lying in dried blood following a cardiac catheterization constituted a substantial 

and specific danger to the patient’s health and safety. ID at 24-25. The record 

reflects that the patient required complete immobilization following the 

catheterization procedure, precluding a change in his blood-stained gown and 

sheets, and that the RNs charged with the patient’s care at the time of the 

appellant’s observation fulfilled their obligations, resulting in the patient’s 

discharge the next day with no complaints of pain or discomfort. After our 

 

2

The administrative judge found that the appellant failed to establish jurisdiction over 

any additional alleged disclosures. ID at 10 n.9, 12-13. The parties do not challenge 

those findings on review, and we decline to disturb them. 
7

thorough review of this evidence, we affirm the administrative judge’s 

well‐reasoned decision to deny the appellant’s request for corrective action. 

The administrative judge made a proper credibility-based factual finding that the 

appellant’s March 8, 2012 Report of Contact was the most credible iteration of 

her disclosure. 

¶11 In the initial decision, the administrative judge provided a comprehensive 

summary of the record pertaining to the appellant’s disclosures, including her

March 6, 2012 conversation with an RN regarding the patient, her March 8 

conversation with her superior, and the March 8 ROC. ID at 17-20. Based on the 

documentary evidence in the record and hearing testimony, he found that the

March 8, 2012 ROC, in which the appellant disclosed to her supervisor that a 

patient had been left in dried blood and an RN had told her not to complain about 

it because nothing would be done, represented the extent of her disclosure, and he 

properly gave it significant weight. ID at 17-18, 21-24; IAF, Tab 32 at 10; see 

Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987) (discussing the 

factors to be considered by an administrative judge in resolving credibility 

issues). By contrast, he found no probative value in the appellant’s two purported 

prior disclosures. ID at 21-24. He observed that the record contained little 

evidence to support her testimony that she had left a written report regarding the 

patient under her supervisor’s door on March 6, in large part because the 

appellant herself apparently destroyed the document, and her “vague, generalized 

assertions” failed to show that she had made a disclosure when speaking with her 

supervisor on March 8. ID at 17-19, 21; HT-1 at 26, 160-61. He also accorded 

little weight to the appellant’s subsequent characterizations of her disclosures, 

finding them neither reliable nor probative, noting the vast difference between her

post-hoc statements and the ROC, and citing her incentive to over-dramatize 

those later statements in order to invoke the protections of the WPA. ID at 22-23. 

¶12 The Board must defer to an administrative judge’s credibility 

determinations when, as here, they are based on the observation of the demeanor 
8

of witnesses testifying at a hearing. Haebe v. Department of Justice, 288 F.3d 

1288, 1301 (Fed. Cir. 2002). Thus, we defer to the administrative judge’s finding

that the appellant’s characterization in the March 8, 2012 ROC, in which she 

described the patient as “left in dried up blood,” was more credible than the later 

iteration set forth in her September 19, 2012 OSC complaint that the patient was 

instead “bleeding profusely.” IAF, Tab 5 at 17, 20, Tab 29 at 10. Contrary to the 

appellant’s assertions on review, the administrative judge explicitly considered 

the appellant’s alleged disclosures on March 6 and 8, 2012, but found her

testimony insufficient to establish that she had made a disclosure therein. PFR 

File, Tab 1 at 7-10; ID at 17-19, 21. The ROC was entitled to significant weight, 

in large part because of its contemporaneous nature. ID at 22‐23; see Hillen, 

35 M.S.P.R. at 458. Thus, not only does the record reflect that the administrative 

judge gave each of the appellant’s asserted disclosures its proper consideration, 

the initial decision also reflects that he considered her allegations as a whole, 

noting the change of the tone of her assertions over time and drawing his 

conclusions from the entirety of the record. Most importantly, this finding is 

consistent with the evidence and testimony before the administrative judge, which 

established that the patient was laying in dried blood due to the critical need for 

him to remain still to control his bleeding following the catheterization 

procedure. Thus, as the following discussion indicates, we reject the appellant’s 

post-hoc characterization, which she repeats on review, that the patient was 

actually in danger. PFR File, Tab 1 at 15-17. 

The record reflects that, contrary to the appellant’s contentions, the patient 

received proper care under the circumstances. 

¶13 The appellant also alleges that the agency violated its own protocols when 

the patient’s vital signs were not taken for 4 hours on March 6, 2012. PFR File,

Tab 1 at 10-12; see 5 U.S.C. § 2302(b)(8)(A)(i) (designating disclosures of 

violations of law, rule, or regulation as protected). However, the record reflects 
9

that the patient who was the subject of the appellant’s purported disclosures 

received care consistent with the agency’s standard of care. ID at 2-5. 

¶14 The agency presented evidence that it was appropriate for the patient to be 

lying in dried blood following a cardiac catheterization due to the obvious and 

acute need to leave him in place following the procedure to minimize further 

bleeding from the catheterization sites. In addition, the patient’s progress notes 

show that the agency continuously monitored him and that the one period of 

subsequent bleeding he experienced was properly addressed by the RN who was 

responsible for his care when it occurred. ID at 3-5; IAF, Tab 30 at 93, Tab 35

at 6-11, Tab 36 at 32-52. Under that circumstance, the refusal of a different RN 

to take responsibility for the patient’s care does not seem unreasonable. 

Moreover, regardless of who discovered that the patient was bleeding, the 

documentary evidence confirms the RN’s testimony that she stanched the 

bleeding and continued to observe the patient until his vital signs and blood 

pressure returned to normal and everything was stable. HT-2 at 381; IAF, Tab 30

at 93. As noted above, the record confirms that the patient was released the next 

day in stable condition with no complaints of pain or discomfort. IAF, Tab 30

at 94. 

¶15 Accordingly, we affirm the administrative judge’s decision to deny 

corrective action in this matter. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

Court of Appeals for the Federal Circuit. 

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. 

Dec. 27, 2012). If you choose to file, be very careful to file on time. The court 

has held that normally it does not have the authority to waive this statutory 
10

deadline and that filings that do not comply with the deadline must be dismissed. 

See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you want to request review of the Board’s decision concerning your 

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8), 

(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge 

the Board’s disposition of any other claims of prohibited personnel practices, you 

may request review of this final decision by the U.S. Court of Appeals for the 

Federal Circuit or any court of appeals of competent jurisdiction. The court of 

appeals must receive your petition for review within 60 days after the date of this 

order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose 

to file, be very careful to file on time. You may choose to request review of the 

Board’s decision in the U.S. Court of Appeals for the Federal Circuit or any other 

court of appeals of competent jurisdiction, but not both. Once you choose to seek 

review in one court of appeals, you may be precluded from seeking review in any 

other court. 

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in

title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the

United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm. 

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, and 11. Additional 

information about other 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. 

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 
11

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Merit Systems Protection Board neither endorses the services provided by any 

attorney nor warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board