Gonzalo Corpus v. Department of Veterans Affairs

N OTE: This disposition is nonprecedential.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
______________________
G ONZALO C ORPUS , San Antonio, TX, pro se.
REBECCA SARAH K RUSER , Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD, P ATRICIA
M. MCCARTHY .
______________________
Before T ARANTO, STOLL , and STARK, Circuit Judges.
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CORPUS v. DVA 2
P ER 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 em-
ployed 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 posi-
tion include frequent standing, walking, bending, and
reaching,” and the technicians “are required to wear lead-
lined 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 facil-
ity, Mr. Corpus was assigned to the Cardiac Catheteriza-
tion 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. Cor-
pus’ 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 non-
epileptic 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 epi-
sodes.
As a result, on January 15, 2020, the deputy director of
patient care services removed Mr. Corpus from direct pa-
tient care, citing “concerns regarding [his] fitness for duty
related to multiple accounts of inability to move extremi-
ties, 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 im-
pairment. 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 po-
sition. Mr. Corpus responded that he was interested in ap-
plying for disability retirement instead of being removed.
Before he could retire, however, Mr. Corpus became seri-
ously ill with COVID-19 and was unable to work until Au-
gust 20, 2020.
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CORPUS v. DVA 4
After Mr. Corpus returned to work, the director of the
medical center, who was responsible for evaluating the pro-
posed removal, was informed by the human resources de-
partment that Mr. Corpus was interested in reassignment
to another position in lieu of removal. Mr. Corpus, how-
ever, ultimately decided that he was not interested in reas-
signment. 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. Mean-
while, the human resources department contacted Mr. Cor-
pus, reiterating the finding that he was unable to perform
his duties and offering to find him reasonable accommoda-
tion.
On March 15, 2021, Mr. Corpus participated in a fol-
low-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. Cor-
pus 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”) Of-
fice of Workers’ Compensation Programs (“OWCP”) ac-
cepted 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 representa-
tive 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 pro-
cess, which he asserted had “jurisdictional control” over his
claim.
On June 8, 2021, the VA requested that Mr. Corpus ap-
pear for a second FFDE, due to reports of him experiencing
“difficulty speaking, hand tremors, disorientation, and ap-
pearing 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 “bene-
fits 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 al-
legations and raising similar concerns.
Mr. Corpus arrived as requested at the specified loca-
tion 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 re-
move Mr. Corpus for failure to submit to a directed exami-
nation. The proposed removal notice stated that Mr.
Corpus’ position was critical and directly affected patient
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CORPUS v. DVA 6
care. His failure to participate in the examination, the no-
tice 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”), alleg-
ing that his proposed removal was in retaliation for his pro-
tected 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 re-
move 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. Cor-
pus 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 re-
garding 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 ap-
peal if the appellant has exhausted his administrative rem-
edies before the Office of Special Counsel (OSC) and makes
[certain] nonfrivolous allegations.” S.A. 79. The AJ con-
cluded 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 ex-
hausted the OSC process for his claim that the VA retali-
ated 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 re-
quired to file a statement describing them by February 24,
2022. The AJ noted he had not received any such state-
ment. 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 pro-
tected 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 cov-
ered 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 con-
vincing 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 correspond-
ence with a congressman regarding various issues, includ-
ing the first FFDE. The AJ also determined that Mr.
Corpus’ allegations of retaliation for exercising a right pro-
tected under Title VII did not come within the scope of an
IRA appeal.
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CORPUS v. DVA 8
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 preponder-
ance 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 re-
prisal 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 ab-
sence 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 un-
lawful and set aside any agency action, findings, or conclu-
sions found to be – (1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) ob-
tained without procedures required by law, rule, or regula-
tion having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c). Substantial ev-
idence 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 rea-
sonably be drawn from the evidence in record, an agency’s
decision to favor one conclusion over the other is the epit-
ome 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 per-
sonnel action even absent the protected activity, we con-
sider 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 deci-
sion; and [3] any evidence that the agency takes
similar actions against employees who are not
whistleblowers but who are otherwise similarly sit-
uated.
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 pro-
posed 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 con-
vincing evidence that it would have taken the same person-
nel action (the proposed removal) even absent the protected
activity. Substantial evidence supports this factual conclu-
sion 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 po-
sition without risk to himself or patients.” S.A. 31 (discuss-
ing “continued and unpredictable nature of [Mr. Corpus’]
seizure-like episodes” and failure to “allay those concerns”).
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CORPUS v. DVA 10
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. Spe-
cifically, the AJ noted that, under the regulation and the
VA’s policy, the agency was permitted to order medical ex-
aminations, 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 sub-
stantial 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 in-
volved 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 fa-
cility generally, which could reflect negatively on higher-
level 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 deci-
sions with respect to removal, the AJ had substantial evi-
dence 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 situ-
ated” – was not significant in this case. This was a reason-
able 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 cre-
ated a firm belief it would have proposed the appellant’s
removal even absent his protected activity.” S.A. 34. More-
over, “[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 conclu-
sions supported by substantial evidence of record, as iden-
tified 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 unper-
suasive. We briefly discuss several of them.
First, Mr. Corpus suggests that the AJ failed to con-
sider certain facts. See Pet. Br. at 1-8. While we have no
basis to assume the AJ overlooked any evidence, see gener-
ally 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. Cor-
pus identifies are entirely irrelevant to any issue in dis-
pute. 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 determin-
ing 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 ap-
pear 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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CORPUS v. DVA 12
unjustified because, during the prior neurological exami-
nation, 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 dis-
interested observer with knowledge of these facts would
reasonably believe the agency was required to defer to” con-
clusions of a particular doctor, “or that the agency violated
a law, rule, or regulation by requiring him to undergo an-
other 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 con-
sider the Douglas factors. See Pet. Br. at 27. These are the
12 factors articulated in Douglas v. Veterans Administra-
tion, 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 pre-
sented to us.
IV
For the foregoing reasons, we affirm the Board’s denial
of corrective action.
AFFIRMED
Costs
No costs.
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