Ronald J. Barrette v. Department of Veterans Affairs

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RONALD J. BARRETTE,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2024-1708
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-1221-16-0840-W-1.
______________________
Decided: November 4, 2025
______________________
ROBERT L. SIRIANNI, J R., Brownstone, PA, Winter Park,
FL, for petitioner. Also represented by G EORGE W.
T HOMAS .
L IRIDONA SINANI, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by ERIC P.
BRUSKIN, P ATRICIA M. MCCARTHY , BRETT S HUMATE.
______________________
Before CHEN, CLEVENGER , and HUGHES , Circuit Judges.
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BARRETTE v. DVA 2
P ER CURIAM.
Dr. Ronald J. Barrette appeals the final decision of the
Merit Systems Protection Board (“Board”) upholding his
termination from the Department of Veteran Affairs
(“VA”). Barrette v. Dep’t of Veterans Affs., No. AT-1221-16-
0840-W-1, 2024 WL 640851 (M.S.P.B. Feb. 14, 2024). For
the reasons stated below, we affirm the Board’s final deci-
sion.
I
Dr. Barrette was a general surgeon at the VA Medical
Center located in Fayetteville, North Carolina. His posi-
tion was subject to the completion of a two-year probation-
ary period, which began on November 4, 2012. During his
employment, Dr. Barrette reported multiple incidents to
his superiors which he perceived as compromising patient
care.
Nearing the end of Dr. Barrette’s probationary period,
his request for reappointment and clinical privileges was
considered at a meeting of the agency’s Professional Stand-
ards Board (“PSB”). After the PSB heard evidence of al-
leged personal and professional misconduct by
Dr. Barrette, it unanimously voted to convene a Summary
Review Board (“SRB”) to evaluate whether the agency
should employ Dr. Barrette beyond his probationary pe-
riod. Following an extensive evidentiary hearing on Octo-
ber 23, 2014, the SRB recommended that Dr. Barrette be
removed during his probationary period. The SRB’s recom-
mendation was based on its findings that Dr. Barrette
(1) failed to timely complete brief operative notes; (2) failed
to timely complete online training requirements; (3) pre-
scribed opiates to a VA employee who was not his patient;
and (4) interacted with surgical staff in an unprofessional
manner. Dr. Barrette was removed from his position on
October 30, 2014.
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BARRETTE v. DVA 3
II
On September 23, 2016, Dr. Barrette filed an individ-
ual right of action (“IRA”) appeal with the Board seeking to
overturn his removal. He argued that he was unlawfully
terminated in retaliation for whistleblowing activities. The
administrative judge (“AJ”) assigned to Dr. Barrette’s case
determined that Dr. Barrette established a prima facie
case of retaliation, but found the VA established by clear
and convincing evidence it would have terminated Dr. Bar-
rette regardless of his whistleblower activity. Barrette v.
Dep’t of Veterans Affs., No. AT-1221-16-0840-W-1, 2018 WL
1376974 (M.S.P.B. Mar. 15, 2018) (“Initial Decision”).
In evaluating whether the agency met its burden, the
AJ considered the three Carr 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 sim-
ilar 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).
For the first Carr factor, the AJ found “the agency had
ample evidence to support terminating the appellant dur-
ing his probationary period.” Initial Decision at 17. Under
second Carr factor, the AJ found that none of the officials
involved in Dr. Barrette’s termination had strong motive to
retaliate. With respect to the third Carr factor, the AJ
noted that certain physicians engaged in some of the same
conduct as Dr. Barrette, but concluded they were not simi-
larly situated.
The AJ thus found that the agency met its burden to
show that it would have removed Dr. Barrette regardless
of his whistleblowing activity. Consequently, the AJ de-
nied Dr. Barrette’s IRA appeal.
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BARRETTE v. DVA 4
Dr. Barrette appealed the Initial Decision to the Board.
The Board denied Dr. Barrette’s petition for review and af-
firmed the Initial Decision, thus finalizing the Initial Deci-
sion.
Dr. Barrette timely appealed to this court. We have ju-
risdiction to review the Board’s decision under 5 U.S.C.
§ 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9).
III
We will set aside the Board’s decision only if it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without pro-
cedures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.”
5 U.S.C. § 7703(c). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Consol. Edison Co. v. NLRB, 305
U.S. 197, 229 (1938) (citation omitted).
IV
Dr. Barrette challenges the Board’s conclusion that the
VA established, by clear and convincing evidence, that it
would have terminated Dr. Barrette’s employment absent
his whistleblower activity. Namely, Dr. Barrette argues
that the Board improperly applied the second and third
Carr factors.1 Having considered Dr. Barrette’s argu-
ments, we conclude that the AJ’s findings are supported by
substantial evidence.
1 Dr. Barrette does not challenge the Board’s findings
as to the first Carr factor. Accordingly, this opinion ad-
dresses only his arguments regarding the second and third
factors.
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BARRETTE v. DVA 5
A
Under the second Carr factor, Dr. Barrette challenges
the AJ’s conclusion that none of the officials involved in his
removal had strong motive to retaliate. He argues that the
Board ignored evidence of Dr. Fowler’s and Dr. Antoine’s
motive to retaliate.
The AJ was not required to address every piece of evi-
dence to demonstrate that she considered it. See Med-
tronic, Inc. v. Daig Corp., 789 F.2d 903, 906 (Fed. Cir. 1986)
(“We presume that a fact finder reviews all the evidence
presented unless he explicitly expresses otherwise.”). Even
so, the AJ did discuss much of the evidence Dr. Barrette
cites. For example, the AJ acknowledged that Dr. Fowler,
the Chief of Surgery, was aware of Dr. Barrette’s whistle-
blowing activity and presented evidence to the SRB. How-
ever, the AJ concluded Dr. Fowler did not have a strong
motive to retaliate because the record did not establish that
he “fabricated evidence against” Dr. Barrette or “engaged
in any impropriety as a result of [Dr. Barrette’s] disclo-
sures.” Initial Decision at 18. The AJ also credited testi-
mony that Dr. Antoine, the Chief of Staff, “could be
retaliatory,” but concluded that that any animus Dr. An-
toine held towards Dr. Barrette was based on Dr. Bar-
rette’s previous locum tenens practice and the numerous
complaints received regarding Dr. Barrette’s behavior, ra-
ther than his protected disclosures. Id. at 18-19.
The AJ evaluated the record, including evidence that
Dr. Barrette cites, and determined it did not reflect any
strong motive to retaliate. This conclusion is supported by
substantial evidence, and we will not reweigh such evi-
dence. See Jones v. Dep’t of Health & Hum. Servs., 834 F.3d
1361, 1369 (Fed. Cir. 2016) (“Under the substantial evi-
dence standard of review, we ‘do[ ] not reweigh evidence on
appeal.’” (quoting In re NTP, Inc., 654 F.3d 1279, 1292
(Fed. Cir. 2011))).
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BARRETTE v. DVA 6
B
The third Carr factor looks to whether an agency treats
whistleblowers more harshly than other non-whistleblower
employees, and requires “the comparison employees to be
‘similarly situated’ – not identically situated – to the whis-
tleblower.” Whitmore v. Dep’t of Lab., 680 F.3d 1353, 1373
(Fed. Cir. 2012). The AJ’s decision suggested that the rec-
ord initially favored Dr. Barrette, because uncontradicted
evidence showed that other physicians at the same facility
engaged in some of the same conduct as Dr. Barrette, but
suffered no consequences for their misbehavior. Nonethe-
less, the AJ held that the record did not establish that the
agency treated any employee similarly situated to Dr. Bar-
rette more leniently. Initial Decision at 19. The AJ stated
two reasons for determining that the others were not simi-
larly situated: first, because none of the other comparators
engaged in all four of the kinds of misconduct for which
Dr. Barrette was removed, and second, because unlike
Dr. Barrette none of the other offending physicians was a
probationary employee. Id. Because the record did not es-
tablish that the agency treated similarly situated employ-
ees differently, the third Carr factor did not weigh against
the agency.
Dr. Barrette argues that the AJ (and thus the Board in
affirming the AJ’s decision), misapplied the similarly situ-
ated test with both of its reasons for finding the other phy-
sicians not similarly situated to Dr. Barrette. Appellant
Br. at 17, 26-27. We disagree.
Dr. Barrette does not dispute that the four misconduct
grounds for which he was removed differ from the lesser
number of grounds of misconduct committed by compara-
tors who suffered no consequences. Considering the differ-
ences in conduct between Dr. Barrette and the others who
engaged in misconduct, the AJ fulfilled Whitmore’s require-
ment that “[d]ifferences in kinds and degrees of conduct be-
tween otherwise similarly situated persons within an
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BARRETTE v. DVA 7
agency can and should be accounted for to arrive at a well
reasoned conclusion regarding Carr factor three.”
Whitmore, 680 F.3d at 1373. Dr. Barrette has shown no
error by the AJ by distinguishing the conduct of Dr. Bar-
rette from the conduct of the other comparators.
Dr. Barrette argues that the Board erred in finding
that other physicians who engaged in misconduct without
consequences were not comparators because they, unlike
Dr. Barrette, were not in probationary employee status.
His opening brief points to a fellow physician, Dr. Bolling,
and states that Dr. Bolling also was a probationary general
surgeon. Appellant Br. at 19, 26. As the agency shows in
its response brief, Response Br. at 37, Dr. Barrette’s state-
ment is a bare allegation raised on appeal, and no more,
because Dr. Barrette has provided no citation to the record
to support his statement. Dr. Barrette also fails to provide
any record citations to show that before the Board he iden-
tified Dr. Bolling, or any of the other fellow employees who
engaged in some, but not all, of the cited misconduct as pro-
bationary employees. The record does show that Dr. Bol-
ling engaged in some misconduct without consequences,
but Dr. Barrette fails to demonstrate that Dr. Bolling en-
gaged in all of the misconduct for which Dr. Barrette was
removed. Dr. Barrette’s challenge to the second rationale
used by the AJ to find the lack of similarly situated employ-
ees lacks record support and is therefore unavailing.
Dr. Barrette presented a prima facie case of reprisal for
engaging in protected disclosures, but the agency was
found to have sustained its defense that it would have re-
moved Dr. Barrette regardless of his whistleblower activ-
ity. Dr. Barrette did not challenge that the agency
sustained the first Carr factor, and Dr. Barrette has not
shown error in the AJ’s determination on the second and
third Carr factors. As such, we have no grounds on which
to disturb the agency’s decision removing Dr. Barrette.
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BARRETTE v. DVA 8
V
Dr. Barrette also argues the Board and VA made “pro-
cedural errors” and that the VA deprived him of due pro-
cess. We reject these arguments.
First, Dr. Barrette argues that the AJ improperly
failed to compel the VA to produce requested discovery or
to impose consequences for the VA’s “noncooperation.” We
perceive no abuse of discretion in this case, much less one
supporting reversal. See Curtin v. Off. of Pers. Mgmt., 846
F.2d 1373, 1378 (Fed. Cir. 1988) (“This court will not over-
turn the board on [discovery and evidentiary] matters un-
less an abuse of discretion is clear and is harmful.”). The
AJ partially granted Dr. Barrette’s requests to compel dis-
covery from the VA prior to the hearing, but denied to im-
pose sanctions as they were not justified by the
circumstances. Dr. Barrette has not persuaded us this de-
cision was an abuse of discretion.
Second, Dr. Barrette argues the SRB was biased and
failed to interview all relevant individuals. Dr. Barrette
makes no allegations of AJ error as it relates to these ar-
guments. In fact, it does not appear that he presented
these arguments until his petition for review by the Board.
Accordingly, we will not consider these arguments. See
Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 668 (Fed.
Cir. 1998) (“A party in an MSPB proceeding must raise an
issue before the administrative judge if the issue is to be
preserved for review in this court. Thus, if the party fails
to raise an issue in the administrative proceeding or raises
an issue for the first time in a petition for review by the full
Board, this court will not consider the issue.”).
Third, Dr. Barrette makes several arguments regard-
ing the ways he believes the VA deprived him of due pro-
cess. Again, it is not clear that Dr. Barrette raised these
arguments below. In any event, these arguments would
not have been within the Board’s jurisdiction. “[I]n an IRA
appeal to the Board, the Board’s review is limited to the
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BARRETTE v. DVA 9
merits of allegations of violations of the Whistleblower Pro-
tection Act.” Young v. Merit Sys. Prot. Bd., 961 F.3d 1323,
1327 (Fed. Cir. 2020). Dr. Barrette’s “argument that his
termination did not comply with requirements for due pro-
cess” is “separate and distinct from the whistleblower alle-
gations,” and thus falls outside of the Board’s jurisdiction.
Meyers v. Dep’t of Veterans Affs., 33 F. App’x 523, 526-27
(Fed. Cir. 2002) (determining due process violation claim
fell outside of Board’s scope of review in IRA appeal); see
also Midyett v. Dep’t of Veterans Affs., 666 F. App’x 905, 907
(Fed. Cir. 2016) (same).
CONCLUSION
We have carefully reviewed Dr. Barrette’s arguments
and find that none undermine the Board’s final decision.
For the reasons stated above, we affirm.
AFFIRMED
COSTS
No costs.
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