Agnes C. Collier v. Department of Veterans Affairs
Background
- Appellant, a CNA at Jesse Brown Medical Center, was terminated during her 1-year probation on July 5, 2012; she filed an IRA appeal alleging retaliation for whistleblowing about a patient left "in dried blood" after a cardiac catheterization.
- On March 6, 2012 the patient underwent catheterization and was transferred to telemetry in the same gown/sheets (with dried blood) due to need for immobilization; RNs documented him as awake, stable, and without hematoma shortly after transfer.
- Appellant worked the shift during which the patient later experienced a period of bleeding that an RN addressed by applying pressure, notifying the physician, and monitoring; the patient was discharged next day stable and without complaints.
- Appellant submitted a contemporaneous March 8, 2012 VA Form 119 Report of Contact (ROC) stating the patient was "left in dried up blood" and alleging an RN said "nothing [would] be done." She later described the event more urgently (e.g., "bleeding profusely").
- The administrative judge found appellant exhausted OSC remedies and made nonfrivolous allegations, but concluded on the merits that a disinterested observer could not reasonably find the ROC disclosed a substantial and specific danger to public health and safety; he credited the ROC over later, amplified accounts.
Issues
| Issue | Appellant's Argument | Agency's Argument | Held |
|---|---|---|---|
| Whether appellant made a protected disclosure of a substantial and specific danger to public health/safety | Appellant contends her March 6 and 8 statements and the March 8 ROC together disclosed a substantial/specific danger (patient left bleeding; RN refused care) | Agency shows patient immobilization and monitoring were appropriate; bleeding was managed and patient discharged stable, so no substantial/specific danger | Held for agency: ROC described "dried blood," not an ongoing substantial/specific danger; a disinterested observer reasonably would not find protected danger disclosure |
| Whether appellant exhausted administrative remedies and established Board jurisdiction over IRA appeal | Appellant asserts OSC exhaustion for the March 8 disclosure and termination | Agency did not successfully rebut exhaustion for that disclosure/personnel action | Held for appellant on jurisdiction: exhaustion and a nonfrivolous allegation were established (jurisdiction proper) |
| Credibility of appellant’s varying descriptions of the incident (contemporaneous ROC vs later statements) | Appellant argues later, more urgent descriptions reflect the true danger (e.g., "bleeding profusely") | Agency emphasizes contemporaneous ROC and RN notes; later statements are inconsistent and self‑serving | Held for agency: ALJ credibility determinations deferred; contemporaneous ROC credited over amplified later claims |
| Whether agency violated its own protocols (e.g., vital signs interval) | Appellant claims vitals not taken for 4 hours, violating protocol and supporting protected disclosure of rule violation | Agency evidence shows care consistent with standard of care and that monitoring/response were appropriate | Held for agency: record supports that care met standards; no protected disclosure for rule violation established |
Key Cases Cited
- Chambers v. Department of the Interior, 602 F.3d 1370 (Fed. Cir.) (test for reasonable belief: disinterested observer standard and factors for substantial/specific danger)
- Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir.) (deference to ALJ credibility findings based on witness demeanor)
- Langer v. Department of the Treasury, 265 F.3d 1259 (Fed. Cir.) (distinguishes nonfrivolous allegation standard for jurisdiction from preponderance for merits)
- Mastrullo v. Department of Labor, 123 M.S.P.R. 110 (MSPB) (prima facie whistleblower reprisal requires protected disclosure and contributing factor)
- Hillen v. Department of the Army, 35 M.S.P.R. 453 (MSPB) (factors for assessing witness credibility and contemporaneous evidence weight)