Steven J. Lalliss v. Department of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
STEVEN J. LALLISS,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2020-2241
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-1221-20-0005-W-1.
______________________
Decided: March 4, 2021
______________________
S TEVEN L ALLISS , Roseville, CA, pro se.
BRENDAN D AVID J ORDAN, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
REGINALD T HOMAS BLADES , J R., J EFFREY B. CLARK, R OBERT
EDWARD K IRSCHMAN, J R.; COLEEN L OUISE WELCH , Office of
General Counsel, United States Department of Veterans
Affairs, Martinez, CA.
______________________
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LALLISS v. DVA 2
Before L OURIE, MAYER, and O’MALLEY , Circuit Judges.
P ER CURIAM .
Steven J. Lalliss, M.D., appeals a final decision of the
Merit Systems Protection Board (“board”) denying his re-
quest for corrective action and rejecting his claim that he
was terminated from his position with the Department of
Veterans Affairs (“VA”) in reprisal for making protected
whistleblowing disclosures. See Lalliss v. Dep’t of Veterans
Affairs, No. SF-1221-20-0005-W-1, 2020 MSPB LEXIS
2252 (June 2, 2020) (“Board Decision”). For the reasons
discussed below, we affirm.
BACKGROUND
In October 2017, Lalliss, an orthopedic surgeon, was
appointed to a position at a VA medical facility in Califor-
nia. See Supplemental Appendix (“S.A.”) 141. His appoint-
ment was subject to a two-year probationary period. S.A.
141.
In February 2018, Lalliss asked his supervisor, Ar-
noldas Kungys, M.D., for a compressed work schedule, but
Kungys denied this request. See S.A. 142–45. Kungys ex-
pressed reservations about compressing Lalliss’ work
schedule given that Lalliss had previously had difficulties
accommodating late and unscheduled patients. S.A. 142,
146. Additionally, Kungys stated that Lalliss had been
“complaining and demanding with the support staff when
they [were] unable to meet [his] unrealistic expectations.”
S.A. 143.
On March 26, 2018, Lalliss filed a complaint with the
VA’s Office of Inspector General (“OIG”). See Addendum to
Petitioner’s Informal Brief (“APB”) at 12–14; see also Board
Decision, 2020 MSPB LEXIS 2252, at *3–4. He alleged
that other physicians in the VA’s Orthopedics Department
did not see the full number of patients that their schedules
called for. See Board Decision, 2020 MSPB LEXIS 2252, at
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LALLISS v. DVA 3
*4. The OIG determined that Lalliss’ complaint was un-
substantiated. See id.
In May 2018, Kungys held an informal counseling
meeting with Lalliss. S.A. 149. Minutes of this meeting
indicate that Kungys informed Lalliss that numerous VA
employees had reported that he was “creating a negative
work environment” and that he had exhibited “[u]nprofes-
sional behavior” in his interactions with VA staff members.
S.A. 149 (internal quotation marks omitted). Furthermore,
while Lalliss had asserted that he wanted to see more pa-
tients, he “behave[d] unpleasantly” when asked to see an
additional patient. S.A. 150.
In a letter dated November 2, 2018, Kungys asked a VA
Professional Standards Board (“PSB”) to recommend ter-
minating Lalliss “while on probationary status on the
grounds of unprofessional conduct in his interactions with
his colleagues and clinic support staff, dishonesty, defer-
ring/turning away patients and episodes of gross insubor-
dination.” S.A. 177. Kungys stated that Lalliss’ “behavior
ha[d] poisoned the [o]rthopedic service work environment
and morale” and that “[h]e continue[d] to behave in a [dis-
trusting,] unprofessional manner in his interactions with
colleagues [and] clinic and hospital support staff while per-
forming his assigned duties.” S.A. 177.
In January 2019, the PSB recommended that Lalliss be
separated from the VA “due to overwhelming evidence
identified during the review process.” S.A. 185. The PSB
identified “numerous deficiencies in conduct . . . including
unprofessional communication with colleagues and staff,
lack of candor about patient care and staff interactions, as
well as creation of a toxic work environment within the de-
partment.” S.A. 185.
On February 19, 2019, the VA informed Lalliss that he
would be removed from his position. See Board Decision,
2020 MSPB LEXIS 2252, at *12. Lalliss then filed a com-
plaint with the Office of Special Counsel (“OSC”), alleging
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LALLISS v. DVA 4
that some of his colleagues at the VA were seeing “only four
or five patients per day and noting that he had made the
same disclosure to the OIG in March 2018.” Id. The OSC
declined to take action on Lalliss’ complaint. Id.
Lalliss subsequently filed an individual right of action
appeal with the board, arguing that the VA removed him
in retaliation for protected whistleblowing activity. See
Whistleblower Protection Enhancement Act of 2012
(“WPEA”), Pub. L. No. 112-199, 126 Stat. 1465; Whistle-
blower Protection Act of 1989 (“WPA”), Pub. L. No. 101-12,
103 Stat. 16. On June 2, 2020, an administrative judge of
the board denied Lalliss’ request for corrective action. The
administrative judge determined that Lalliss’ March 2018
disclosure to the OIG, which asserted that certain VA phy-
sicians were not seeing an adequate number of patients,
qualified as a protected disclosure and that it was a con-
tributing factor in his removal. See Board Decision, 2020
MSPB LEXIS 2252, at *20–25. She concluded, however,
that the VA had established that it would have removed
Lalliss even in the absence of his protected disclosure. Id.
at *26–31. According to the administrative judge, the VA
had “very strong” reasons to remove Lalliss for his unpro-
fessional conduct, id. at *29, given that “[e]very witness
with firsthand knowledge of [Lalliss’] conduct, aside from
[Lalliss] himself, uniformly testified that [he] routinely be-
haved in ways that were disruptive, that were inconsider-
ate to other staff members, and that led colleagues to
distrust him and to avoid interacting with him,” id. at *27.
Lalliss then appealed to this court. We have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(9).
D ISCUSSION
The scope of our review of a board decision is limited.
Pursuant to 5 U.S.C. § 7703(c), a board decision must be
affirmed unless it is 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,
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LALLISS v. DVA 5
or regulation having been followed; or (3) unsupported by
substantial evidence.” See Chambers v. Dep’t of Interior,
602 F.3d 1370, 1375 (Fed. Cir. 2010).
The WPA, as amended by the WPEA, prohibits an
agency from taking a personnel action because of a whis-
tleblowing disclosure or activity. See 5 U.S.C. § 2302(b)(8);
id. § 2302(b)(9). If an employee proves by a preponderance
of the evidence that he made a protected disclosure that
contributed to an agency’s action against him, “the burden
of persuasion shifts to the agency to show by clear and con-
vincing evidence that it would have taken the same person-
nel action in the absence of such disclosure.” Whitmore v.
Dep’t of Labor, 680 F.3d 1353, 1364 (Fed. Cir. 2012) (cita-
tion and internal quotation marks omitted). In determin-
ing whether an agency has established that it would have
taken a personnel action even in the absence of a protected
disclosure, the board generally considers the following
three factors: (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 em-
ployees who are not whistleblowers but who are otherwise
similarly situated.” Carr v. SSA, 185 F.3d 1318, 1323 (Fed.
Cir. 1999).
On appeal, Lalliss challenges factual findings made by
the administrative judge related to each of the Carr factors.
As to the first Carr factor, Lalliss argues that the adminis-
trative judge made “serious errors” when she determined
that the VA had very strong reasons for removing him from
his position. APB at 5. In support, he contends that al-
though the administrative judge stated that he was
“unique” in his refusal to see patients who arrived late to
their appointments, Board Decision, 2020 MSPB LEXIS
2252, at *26, other VA physicians also refused to see late
patients on occasion, see APB at 5–6. Lalliss contends,
moreover, that “[i]n over a year of patient care, the agency
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LALLISS v. DVA 6
only had possible evidence of two” instances in which he
refused to see patients who were late. Id. at 6.
Additionally, Lalliss challenges the administrative
judge’s statement that “Kungys testified that he received
complaints regarding, and personally observed, [Lalliss]
yelling in the clinic that fraud was occurring and that the
department needed to see more patients.” Board Decision,
2020 MSPB LEXIS 2252, at *5; see APB at 12. According
to Lalliss, Kungys only testified that he was “mumbling
loudly” about alleged fraud, rather than yelling. APB at
12. Lalliss argues, moreover, that at least two agency em-
ployees reported that they had good relationships with
him. See id. at 7.
As to the second Carr factor, Lalliss asserts that the
administrative judge incorrectly determined that the VA
had only a “slight” motive to retaliate against him. Id. at
8. According to Lalliss, Scott Hundahl, M.D., the Chief of
Surgery, had a strong incentive to retaliate against him for
his disclosure regarding doctors who were allegedly not
seeing an adequate number of patients since Hundahl was
“responsible for the Orthopedic Department” at the VA. Id.
As to the third Carr factor, Lalliss contends that the ad-
ministrative judge erred in determining that there was no
evidence that the VA failed to take disciplinary action
against similarly situated agency employees. Id. at 10.
Having considered the arguments advanced by Lalliss,
however, we conclude that the administrative judge’s anal-
ysis contains no legal error and that her factual findings
are supported by substantial evidence. See Briley v. Nat’l
Archives & Records Admin., 236 F.3d 1373, 1377 (Fed. Cir.
2001) (emphasizing that it is not this court’s function to
“retry[] factual issues decided . . . by the [b]oard”); see also
Parker v. USPS, 819 F.2d 1113, 1115 (Fed. Cir. 1987) (“In
determining whether the board’s decision is supported by
substantial evidence, the standard is not what the court
would decide in a de novo appraisal, but whether the
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LALLISS v. DVA 7
administrative determination is supported by substantial
evidence on the record as a whole.”). The administrative
judge thoroughly evaluated the record—including both the
testimony and documentary evidence presented—and rea-
sonably concluded that the VA had strong reasons for re-
moving Lalliss even in the absence of his protected
disclosure. See Board Decision, 2020 MSPB LEXIS 2252,
at *29.
The VA presented extensive evidence that Lalliss
treated other agency employees in a rude and unprofes-
sional manner, see, e.g., S.A. 142–43, 146, 148, 149, 154,
that he improperly refused to refill a patient prescription,
S.A. 180, and that he refused to see patients who were late,
including a patient who had driven over three hours to con-
sult with him, S.A. 164. VA employees testified that Lalliss
behaved in a way that “led colleagues to distrust him and
to avoid interacting with him.” Board Decision, 2020
MSPB LEXIS 2252, at *27. This testimony was “corrobo-
rated by ample documentary evidence including many un-
solicited complaints about [Lalliss], contemporaneous
emails of . . . Kungys documenting his investigation of com-
plaints regarding [Lalliss], and the written statement of a
patient whom [Lalliss] refused to see.” Id. at *27–28.
Although Lalliss “categorically denied engaging in any
of the conduct alleged by the agency and testified that
every instance of alleged misconduct was either entirely
fabricated or a misrepresentation,” the administrative
judge did “not find [Lalliss’] denials credible in light of the
substantial and consistent documentary and testimonial
evidence of [his] misconduct.” Id. at *29. We see no basis
in the record to set aside the administrative judge’s conclu-
sion that the testimony of VA employees, such as Kungys,
regarding Lalliss’ conduct was more persuasive than his
own account of his actions in the period prior to his re-
moval. See, e.g., Pope v. USPS, 114 F.3d 1144, 1149 (Fed.
Cir. 1997) (explaining that this court will not disturb the
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LALLISS v. DVA 8
board’s credibility determinations unless they are “inher-
ently improbable or discredited by undisputed fact”).
Nor did the administrative judge err in concluding that
the VA had only a “slight” motivation to retaliate against
Lalliss. Board Decision, 2020 MSPB LEXIS 2252, at *30.
As the administrative judge correctly recognized, Hundahl
could potentially have had some interest in retaliating
against Lalliss given that his OIG complaint alleged that
certain VA physicians were not seeing enough patients and
Hundahl “was the second line supervisor over the depart-
ment where the alleged wrongdoing was occurring.” Id.
Importantly, however, since there was “ample evidence
that orthopedists did not, as [Lalliss] claimed, see fewer pa-
tients than their schedules called for, there [was] little rea-
son to think that [Lalliss’] intention to make a disclosure
would have given . . . Hundahl cause for concern or pro-
vided [a] motive to retaliate.” Id. There was no persuasive
evidence, moreover, of any retaliatory animus on the part
of the members of the PSB that recommended removing
Lalliss. See id.
We likewise reject Lalliss’ assertion that the adminis-
trative judge failed to properly evaluate the third Carr fac-
tor, which assesses whether there is any evidence that an
agency took disciplinary action against employees who
were similarly situated but who were not whistleblowers.
See Carr, 185 F.3d at 1323. Although Lalliss argues that
another VA physician refused to see a late patient and yet
was not subjected to any disciplinary action, the VA de-
cided to remove Lalliss not only because he refused to see
late patients but also because he treated fellow employees
in an unprofessional and discourteous manner. See, e.g.,
S.A. 177–78. Lalliss fails to show, therefore, that he was
similarly situated to the other VA physician who purport-
edly declined to see a patient who arrived late to an ap-
pointment. See Carr, 185 F.3d at 1326 (“For an employee
to be considered similarly situated to an individual who is
disciplined, it must be shown that the conduct and the
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LALLISS v. DVA 9
circumstances surrounding the conduct of the comparison
employee are similar to those of the disciplined individ-
ual.”).
We reject, moreover, Lalliss’ claim that “[t]he adminis-
trative judge failed to consider or even read [his] appeal to
the board or his statement of facts.” Petitioner’s Informal
Brief at 3. The fact that the administrative judge did not
specifically discuss all arguments advanced by Lalliss does
not mean that she failed to properly consider them. See
Lowder v. DHS, 504 F.3d 1378, 1383 (Fed. Cir. 2007); Hart-
man v. Nicholson, 483 F.3d 1311, 1315 (Fed. Cir. 2007). We
have considered Lalliss’ remaining arguments but do not
find them persuasive.
CONCLUSION
Accordingly, the decision of the Merit Systems Protec-
tion Board is affirmed.
AFFIRMED
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