NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

GONZALO CORPUS,

Petitioner

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent

______________________ 

2023-1861

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DA-1221-22-0029-W-2.

______________________ 

Decided: April 10, 2024

______________________ 

GONZALO CORPUS, San Antonio, TX, pro se.

 REBECCA SARAH KRUSER, Commercial Litigation 

Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by 

BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD, PATRICIA 

M. MCCARTHY. 

______________________ 

Before TARANTO, STOLL, and STARK, Circuit Judges.

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2 CORPUS v. DVA

PER CURIAM. 

Mr. Gonzalo Corpus appeals a decision of the Merit 

Systems Protection Board (“Board”) denying his request for 

corrective action under the Whistleblower Protection Act 

(“WPA”) and the Whistleblower Protection Enhancement 

Act (“WPEA”). We affirm.

I 

A 

Mr. Corpus was a medical instrument technician employed at a medical facility operated by the Department of 

Veterans Affairs (“VA”). Medical instrument technicians 

are required to perform procedures and examinations on 

patients. “Physical requirements for the technician position include frequent standing, walking, bending, and 

reaching,” and the technicians “are required to wear leadlined clothing that weighs 20 pounds during all procedures, 

must be able to lift and/or move over 50 pounds, and must 

have good manual dexterity and keyboarding skills.” S.A.

5.1 (internal citation marks omitted). At the medical facility, Mr. Corpus was assigned to the Cardiac Catheterization Lab (“CCL”), which required him to perform, under a 

physician’s direction, invasive and noninvasive diagnostic 

tests of patients’ pulmonary and cardiovascular systems.

Between November 2019 and January 2020, Mr. Corpus’ supervisors became aware of reports from various staff 

members that he was experiencing seizure-like episodes

while on duty. The staff members reported that because of 

these episodes, Mr. Corpus had needed to be taken to the 

emergency room on more than one occasion. On January 

7, 2020, Mr. Corpus was diagnosed with psychogenic nonepileptic spells (the “Condition”), which is a psychological 

1 “S.A.” refers to the supplemental appendix filed 

with the government’s response (ECF No. 15).

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CORPUS v. DVA 3

condition that manifests physically as seizure-like episodes. 

As a result, on January 15, 2020, the deputy director of 

patient care services removed Mr. Corpus from direct patient care, citing “concerns regarding [his] fitness for duty 

related to multiple accounts of inability to move extremities, blank stares, apparent disorientation, and difficult[y] 

in forming words.” S.A. 43. She added that the removal 

was also due to “potential safety risks for both [Mr. Corpus] 

and . . . veteran[s].” S.A. 43. The deputy director indicated 

that “[d]uties will be assigned by [Mr. Corpus’] supervisor, 

. . . or designee.” S.A. 43. Later that month, one of Mr. 

Corpus’ supervisors requested that he appear for a fitness 

for duty examination (“FFDE”) scheduled for February 5, 

2020.

Mr. Corpus submitted himself to this FFDE, and the 

doctor who performed it recommended that he undergo a 

psychological evaluation to determine the extent of his impairment. After that evaluation, the doctor concluded that 

Mr. Corpus’ ability to perform the essential elements of his 

position was “questionable.” S.A. 47. Thus, the examining 

doctor, noting the “safety sensitive nature of [Mr. Corpus’] 

position,” recommended that the medical facility convene a 

physical standards board (“PSB”). S.A. 47. The PSB was 

convened on May 7, 2020. It determined that Mr. Corpus 

was not able to safely perform his duties, given that his 

condition caused “involuntary loss of control of cognitive 

and motor functions which could pose a serious risk of 

harm to patients and [his] fellow coworkers.” S.A. 48. 

On June 15, 2020, Mr. Corpus was notified that the 

deputy director was proposing to remove him from his position. Mr. Corpus responded that he was interested in applying for disability retirement instead of being removed. 

Before he could retire, however, Mr. Corpus became seriously ill with COVID-19 and was unable to work until August 20, 2020.

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4 CORPUS v. DVA

After Mr. Corpus returned to work, the director of the 

medical center, who was responsible for evaluating the proposed removal, was informed by the human resources department that Mr. Corpus was interested in reassignment 

to another position in lieu of removal. Mr. Corpus, however, ultimately decided that he was not interested in reassignment. Nevertheless, Mr. Corpus’ supervisor 

reassigned him to a temporary position with duties that did 

not involve direct patient care and later to a position of 

Medical Support Assistant. Mr. Corpus refused to sign the 

reassignment notice.

Mr. Corpus subsequently filed an appeal at the Board 

contending that he had been involuntarily reassigned to a 

lower-grade position. The VA responded by withdrawing

both the notice of reassignment and the notice of proposed 

removal, and Mr. Corpus then withdrew his appeal. The 

Board dismissed the appeal on January 14, 2021. Meanwhile, the human resources department contacted Mr. Corpus, reiterating the finding that he was unable to perform 

his duties and offering to find him reasonable accommodation.

On March 15, 2021, Mr. Corpus participated in a follow-up neurological examination. The examining doctor, a 

different person than the doctor who had conducted the 

first FFDE, concluded that he could resume his duties 

without any limitation. Less than a month later, however, 

Mr. Corpus’ representative informed the VA that Mr. Corpus was experiencing serious medical problems as a direct 

result of COVID-19. The representative also stated that 

Mr. Corpus had suffered a convulsion in the VA parking lot 

and was then taken to the emergency room.

Around this time, the Department of Labor (“DOL”) Office of Workers’ Compensation Programs (“OWCP”) accepted Mr. Corpus’ claim for traumatic injury due to

COVID-19. The OWCP determined that Mr. Corpus had 

an injury that was proximately caused by employment

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CORPUS v. DVA 5

under, and was compensable pursuant to, the American 

Rescue Plan Act of 2021. On May 3, 2021, a VA representative contacted Mr. Corpus to follow up on the reasonable 

accommodation process and potential reassignment. Mr. 

Corpus (through his representative) advised the VA that 

his health issues were being addressed by the OWCP process, which he asserted had “jurisdictional control” over his 

claim. 

On June 8, 2021, the VA requested that Mr. Corpus appear for a second FFDE, due to reports of him experiencing

“difficulty speaking, hand tremors, disorientation, and appearing unable to properly perform [his] duties.” S.A. 54. 

Mr. Corpus responded on June 15, 2021 with a letter (“June 

2021 Letter”) stating that his symptoms were due to 

COVID-19. He further espoused the view that because his 

injury was accepted by DOL, he was now entitled to “benefits and protections.” S.A. 57. Mr. Corpus further asserted

in the June 2021 Letter that the VA was “coercing” him 

“with threats” and “forcing” him to “violate federal statues, 

HIP[A]A, DOL/OWCP, [and] VA Directives” and disclose 

his “private medical information” that he did “not want to 

release.” S.A. 57. The same letter added that he was being 

“coerced” to submit to a physical examination against his 

will. S.A. 57. The next day, June 16, 2021, Mr. Corpus’s 

representative contacted the Office of Inspector General 

(“OIG”) hotline (“2021 Hotline Report), making similar allegations and raising similar concerns.

Mr. Corpus arrived as requested at the specified location for the second FFDE on June 17, 2021. However, he 

refused to complete the required examination forms and 

did not consent to the exam. Thus, the scheduled FFDE 

did not occur.

On July 16, 2021, the deputy director proposed to remove Mr. Corpus for failure to submit to a directed examination. The proposed removal notice stated that Mr. 

Corpus’ position was critical and directly affected patient 

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6 CORPUS v. DVA

care. His failure to participate in the examination, the notice explained, presented a safety issue and had a negative 

effect on the efficiency of the agency.

B 

On July 30, 2021, Mr. Corpus filed a whistleblower 

complaint with the Office of Special Counsel (“OSC”), alleging that his proposed removal was in retaliation for his protected disclosures and protected activities. On October 15, 

2021, the OSC notified Mr. Corpus that it was closing its 

inquiry into his complaint and advised him of his right to 

seek corrective action from the Board via an individual 

right of action (“IRA”) appeal.

On October 19, 2021, the VA issued a decision to remove Mr. Corpus from employment. The effective date of 

the removal was set as October 25, 2021. On October 21, 

2021, before the effective date of his termination, Mr. Corpus filed an IRA appeal with the Board. 

C 

On February 17, 2022, the administrative judge (“AJ”) 

assigned to Mr. Corpus’ Board appeal issued an order regarding jurisdiction. In the order, the AJ explained that, 

“[u]nder the Whistleblower Protection Enhancement Act of 

2012 (WPEA), the Board has jurisdiction over an IRA appeal if the appellant has exhausted his administrative remedies before the Office of Special Counsel (OSC) and makes

[certain] nonfrivolous allegations.” S.A. 79. The AJ concluded that Mr. Corpus had exhausted the OSC process 

with respect to his putative disclosure and activity as set 

out in the June 2021 Letter and the 2021 Hotline Report. 

The AJ found, however, that Mr. Corpus filing of an 

appeal with the Employee’s Compensation Appeal Board 

(“ECAB”) within DOL/OWCP was not a protected activity 

under the WEPA. Furthermore, while Mr. Corpus had exhausted the OSC process for his claim that the VA retaliated against him by requesting the second FFDE, the AJ 

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CORPUS v. DVA 7

found it still lacked jurisdiction for this claim because the 

request (dated June 8, 2021) preceded the June 2021 Letter

(which was dated June 15, 2021). 

The AJ’s order noted that, to the extent Mr. Corpus 

contended he had engaged in other protected disclosures or 

activities or suffered other personnel actions, he was required to file a statement describing them by February 24, 

2022. The AJ noted he had not received any such statement. Thus, the AJ limited the scope of the appeal to the 

disclosures and personnel actions relating to the June 2021 

Letter and the 2021 Hotline Report. 

On April 20, 2023, the AJ issued an initial decision 

denying Mr. Corpus’ request for corrective action. In the 

decision, the AJ found the June 2021 Letter was not a protected disclosure because Mr. Corpus “did not articulate, 

nor [was the AJ] able to discern, a reasonable belief that 

the [second] FFDE violated any law, rule, or regulation.” 

S.A. 23. The AJ concluded the 2021 Hotline Report was a 

protected activity because, by law, disclosing information 

to the Inspector General is a protected activity, regardless 

of its content. 

The AJ also found that the proposed removal was a covered personnel action, and that the 2021 Hotline Report 

was a contributing factor in the proposed removal. The AJ

concluded, however, that the VA showed by clear and convincing evidence that it would have proposed to remove Mr. 

Corpus even absent the protected activity. Thus, the AJ 

denied Mr. Corpus’ request for corrective action.

The AJ also held in the initial decision that Mr. Corpus 

had failed to exhaust the OSC process with respect to his 

alleged reporting of sexual harassment and correspondence with a congressman regarding various issues, including the first FFDE. The AJ also determined that Mr. 

Corpus’ allegations of retaliation for exercising a right protected under Title VII did not come within the scope of an 

IRA appeal.

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8 CORPUS v. DVA

The initial decision became final on May 25, 2023. Mr. 

Corpus timely appealed. We have jurisdiction under 5 

U.S.C. § 7703(b)(1) and 28 U.S.C. § 1295(a)(9).

II

At the Board, “[a]n employee who believes he has been 

subjected to illegal retaliation must prove by a preponderance of the evidence that he made a protected disclosure 

that contributed to the agency’s action against him.” Smith 

v. Gen. Servs. Admin., 930 F.3d 1359, 1365 (Fed. Cir. 2019). 

“If the employee establishes this prima facie case of reprisal for whistleblowing, the burden of persuasion shifts 

to the agency to show by clear and convincing evidence that 

it would have taken the same personnel action in the absence of such disclosure.” Id. (internal quotation marks 

omitted); see also 5 U.S.C. § 1221(e). 

In reviewing the Board’s decision, we must “hold unlawful and set aside any agency action, findings, or conclusions found to be – (1) arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by 

substantial evidence.” 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. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938). 

“[W]here two different, inconsistent conclusions may reasonably be drawn from the evidence in record, an agency’s 

decision to favor one conclusion over the other is the epitome of a decision that must be sustained upon review for 

substantial evidence.” In re Jolley, 308 F.3d 1317, 1329 

(Fed. Cir. 2002). 

In evaluating whether substantial evidence supports 

the Board’s finding that the VA had shown by clear and 

convincing evidence that it would have taken the same personnel action even absent the protected activity, we consider the Carr factors, which are: 

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CORPUS v. DVA 9

[1] the strength of the agency’s evidence in support 

of its personnel 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 are not 

whistleblowers but who are otherwise similarly situated. 

Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 

1999).

III

The AJ found that Mr. Corpus engaged in at least one 

protected activity (the 2021 Hotline Report), that the proposed removal was a covered personnel action, and that his

protected activity was a contributing factor in the proposed 

removal. These findings are favorable to Mr. Corpus and 

the government does not challenge them in this appeal. 

Thus, we focus our analysis on the AJ’s findings that are 

unfavorable to Mr. Corpus. 

A 

The AJ concluded that the VA showed by clear and convincing evidence that it would have taken the same personnel action (the proposed removal) even absent the protected 

activity. Substantial evidence supports this factual conclusion as well as the AJ’s underlying factual findings with 

respect to each of the Carr factors. 

Regarding the first Carr factor – “the strength of the 

agency’s evidence in support of its personnel action” – the 

AJ concluded that the VA presented “very strong evidence 

in support of its proposal to remove” Mr. Corpus. S.A. 31. 

The AJ explained that “[t]he agency articulated legitimate 

concerns about [his] ability to perform the duties of his position without risk to himself or patients.” S.A. 31 (discussing “continued and unpredictable nature of [Mr. Corpus’] 

seizure-like episodes” and failure to “allay those concerns”). 

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10 CORPUS v. DVA

The AJ also considered Mr. Corpus’ violation of the VA’s 

regulation and policy as set forth in the agency’s handbook, 

concluding that the VA was authorized to take disciplinary 

action against Mr. Corpus for his failure to cooperate. Specifically, the AJ noted that, under the regulation and the 

VA’s policy, the agency was permitted to order medical examinations, and Mr. Corpus’ failure to submit to one was a 

valid basis for disciplinary or adverse action. We conclude 

that the AJ’s determination that the first Carr factor 

“weighs heavily in favor of the agency” is supported by substantial evidence. S.A. 33. 

The AJ found the evidence with respect to the second 

Carr factor – “the existence and strength of any motive to 

retaliate on the part of the agency officials who were involved in the decision” – was “mixed.” S.A. 33. The AJ 

acknowledged that the deputy director and the director 

“may have had a motive to retaliate because [Mr. Corpus’] 

complaints about the second FFDE were directed at the facility generally, which could reflect negatively on higherlevel managers.” S.A. 34. The AJ further noted that these 

two were identified as the “wrongdoers” in Mr. Corpus’ OIG 

complaint. S.A. 34. However, given the deputy director’s 

and the director’s sworn declarations, attesting that Mr. 

Corpus’ protected activities had no bearing on their decisions with respect to removal, the AJ had substantial evidence for the finding that the second Carr factor weighed 

“at most, slightly in the appellant’s favor.” S.A. 34. 

The AJ found the third Carr factor – “evidence that the 

agency takes similar actions against employees who are 

not whistleblowers but who are otherwise similarly situated” – was not significant in this case. This was a reasonable conclusion given that there was “no evidence of record 

concerning similarly situated employees,” as the AJ noted. 

S.A. 34.

After weighing the three Carr factors, the AJ concluded 

that the “agency met its high burden of clear and 

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CORPUS v. DVA 11

convincing evidence” because “the agency’s evidence created a firm belief it would have proposed the appellant’s 

removal even absent his protected activity.” S.A. 34. Moreover, “[t]he agency provided ample support, in the form of 

both documentary evidence and sworn declarations, for the 

proposed action.” S.A. 34. These are reasonable conclusions supported by substantial evidence of record, as identified by the Board and summarized throughout this 

opinion.

B 

We have considered Mr. Corpus’ remaining arguments, 

though they are difficult to discern, and find them unpersuasive. We briefly discuss several of them. 

First, Mr. Corpus suggests that the AJ failed to consider certain facts. See Pet. Br. at 1-8. While we have no 

basis to assume the AJ overlooked any evidence, see generally Snyder v. Dep’t of the Navy, 854 F.3d 1366, 1373 (Fed. 

Cir. 2017), we fail to see how the allegedly-ignored evidence 

could render the AJ’s decision arbitrary, capricious, an 

abuse of discretion, unsupported by substantial evidence, 

or not in accordance with law. Many of the facts Mr. Corpus identifies are entirely irrelevant to any issue in dispute. See, e.g., Pet. Br. at 8 (failing to show relevance of 

Mr. Corpus’ two appeals being consolidated and that he is 

100% disabled and being treated for Gulf War syndrome). 

Others were clearly considered by the AJ. Compare, e.g., 

Pet. Br. at 6 (identifying Mr. Corpus’ filing of appeal with 

ECAB), with S.A. 2 n.1 (discussing this fact and determining it was not protected activity). Still others relate to facts 

with respect to which the AJ found Mr. Corpus failed to 

exhaust his administrative remedies. See S.A. 27-28 & 

n.14 (Title VII and sexual harassment allegations); S.A. 28 

(communication with congressman about first FFDE).

Second, Mr. Corpus argues that the requirement he appear for the second FFDE (which was the subject of the 

June 2021 Letter as well as the 2021 Hotline Report) was 

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12 CORPUS v. DVA

unjustified because, during the prior neurological examination, he had been cleared to resume his duties. See Pet. 

Br. at 11. However, substantial evidence supports the AJ’s 

conclusion that Mr. Corpus “has not established that a disinterested observer with knowledge of these facts would 

reasonably believe the agency was required to defer to” conclusions of a particular doctor, “or that the agency violated 

a law, rule, or regulation by requiring him to undergo another examination to assess potential limitations.” S.A. 24.

Third, Mr. Corpus challenges the AJ’s reliance on the 

sworn statements of agency personnel. See Pet. Br. at 17-

18. The “credibility determinations of an administrative 

judge are virtually unreviewable on appeal.” Bieber v. 

Dep’t of the Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002). We 

discern no error here in the AJ’s treatment of these sworn 

statements.

Finally, Mr. Corpus argues that the AJ failed to consider the Douglas factors. See Pet. Br. at 27. These are the 

12 factors articulated in Douglas v. Veterans Administration, 5 M.S.P.B. 313 (1981), which agencies are to consider 

when determining whether a penalty, such as removal, is 

reasonable. While Douglas factors are pertinent to Mr. 

Corpus’ appeal of his removal (which is not before us), they 

are not pertinent to the IRA appeal Mr. Corpus has presented to us.

IV

For the foregoing reasons, we affirm the Board’s denial 

of corrective action.

AFFIRMED

Costs

No costs. 

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