NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`JEAN KURIAKOSE,
`Petitioner
`
`v.
`
`DEPARTMENT OF VETERANS AFFAIRS,
`Respondent
`______________________
`
`2019-1274
`______________________
`
`Petition for review of the Merit Systems Protection
`Board in No. CH-1221-17-0287-W-2.
`______________________
`
`Decided: January 17, 2020
`______________________
`
`ARIEL E. SOLOMON, Solomon Law Firm, PLLC, Albany,
`NY, for petitioner.
`
` NATHANAEL YALE, Commercial Litigation Branch, Civil
`Division, United States Department of Justice, Washing-
`ton, DC for respondent. Also represented by JOSEPH H.
`HUNT, ALLISON KIDD-MILLER, ROBERT EDWARD
`KIRSCHMAN, JR.
` ______________________
`
`Before DYK, TARANTO, and CHEN, Circuit Judges.
`
`

`

`2
`
`KURIAKOSE v. DVA
`
`TARANTO, Circuit Judge.
`This appeal comes to us from the Merit Systems Pro-
`tection Board. Appellant Jean Kuriakose worked as a part-
`time radiologist at the Department of Veterans Affairs’
`Health Care System in Ann Arbor, Michigan. According to
`her allegations at the Board, on December 6, 2013, she was
`sexually assaulted by a co-worker—who, the Board subse-
`quently found, was placed on leave by the VA as soon as
`the incident was reported and whose employment was ter-
`minated shortly thereafter. In December 2014, Dr. Kuria-
`kose resigned from her position at the VA. In 2017, after
`exhausting administrative remedies, she sought corrective
`action from the Board under the Whistleblower Protection
`Enhancement Act, 5 U.S.C. § 2303 et seq. (WPA), based on
`allegations that she had made certain protected disclosures
`to her supervisors and been subjected to several adverse
`personnel actions by the VA as a result. The Board rejected
`Dr. Kuriakose’s request for corrective action, finding that
`Dr. Kuriakose had made one protected disclosure that re-
`sulted in an adverse personnel action, but that the VA
`proved that it would have taken that personnel action re-
`gardless of Dr. Kuriakose’s protected disclosure. Because
`we find no reversible error, we affirm.
`I
`A
`Dr. Kuriakose began working at the VA as a radiologist
`in 2010. The Ann Arbor VA Health Care System has an
`academic affiliation with the University of Michigan Med-
`ical School, and the VA’s radiologists, including Dr. Kuria-
`kose, are also on staff at the University. Dr. Kuriakose’s
`immediate VA supervisor was Dr. Venkataramu Krishna-
`murthy, and her immediate University supervisor was Dr.
`Ella Kazerooni.
`Before the Board, Dr. Kuriakose alleged that, on De-
`cember 6, 2013, at the VA facility, she was the victim of a
`
`

`

`KURIAKOSE v. DVA
`
`3
`
`sexual attack—groping and exposure—by a male radiolo-
`gist at the facility. J.A. 3. About a week later, Dr. Kuria-
`kose told a radiology technician that the co-worker
`radiologist had exposed himself to her. Id. Independently,
`but contemporaneously, the VA questioned him about his
`treatment of women. Id. at 4. Around January 10, 2014,
`Dr. Kuriakose told her University supervisor, Dr.
`Kazerooni, about the December 6th incident. Id. at 4. Dr.
`Kazerooni immediately contacted both the police and Dr.
`Kuriakose’s VA supervisor, Dr. Krishnamurthy; and the
`same day, the police began an investigation, Dr. Kuriakose
`filed a criminal complaint, and the VA placed the co-worker
`radiologist on administrative leave. Id. at 4–5. The VA
`conducted an investigation, in which it received denials
`from the co-worker radiologist as well as other information
`about his behavior toward women. Id. On January 21,
`2014, the VA terminated his appointment, effective Febru-
`ary 4, 2014. Id. at 6.
`In the period just discussed, VA supervisor Dr. Krish-
`namurthy had been attempting to resolve Dr. Kuriakose’s
`ongoing timekeeping issues, including her refusal to re-
`quest leave for time she took off for vacation. See J.A.
`1493–94. Around that time, Dr. Kuriakose has also al-
`leged, she applied to be a member of the VA’s Peer Review
`Committee and what Dr. Kuriakose refers to as the “Lung
`Cancer Committee.” On January 13, 2014, Dr. Krishna-
`murthy offered to move Dr. Kuriakose’s workstation away
`from the workstation of the co-worker she had just alleged
`had assaulted her the month before. Dr. Kuriakose ex-
`pressed concern that moving her work station might ham-
`per the assault investigation. Dr. Krishnamurthy assured
`Dr. Kuriakose that moving workstations would not affect
`the investigation and recommended that she move “if that
`would make the environment better.” J.A. 1656. Dr. Ku-
`riakose decided to remain at her then-current workstation.
`J.A. 143; see J.A. 475.
`
`

`

`4
`
`KURIAKOSE v. DVA
`
`On February 26, 2014, Dr. Kuriakose met with her sec-
`ond-level supervisor at the VA, Dr. Eric Young. During the
`meeting, she discussed the assault as well as her concerns
`regarding how her direct supervisor, Dr. Krishnamurthy,
`was assigning codes to medical procedures he performed.
`Dr. Young informed Dr. Kuriakose that he would send a
`memorandum of their conversation to Dr. Krishnamurthy,
`and he did so on March 5, 2014. J.A. 1639.
`In May 2014, the University sought to increase the pro-
`fessional development time allotted to its physicians for re-
`search and other scholarly activities. The University asked
`the VA to permit some physicians, including Dr. Kuriakose,
`to use up to twenty percent of their VA tour for professional
`development. The VA generally permitted use of only
`about ten percent of a physician’s VA tour for professional
`development. Given the apparent discrepancy, the VA,
`through Drs. Krishnamurthy and Young, decided that the
`best practice was to implement a formal “Rules of Engage-
`ment” to set standards for professional development time
`and to clarify the relationship between the University and
`the VA’s radiology department. J.A. 122–23. Dr. Krishna-
`murthy placed Dr. Kuriakose’s professional development
`time on hold until the Rules of Engagement were officially
`implemented. On August 11, 2014, Dr. Krishnamurthy ap-
`proved Dr. Kuriakose’s request to use professional develop-
`ment time to participate in a COPDGene study.
`On September 12, 2014, Dr. Kuriakose told Dr. Young
`that another VA co-worker, Dr. David Jamadar, had made
`inappropriate comments to her during an argument. She
`alleges that she later overheard Dr. Jamadar making de-
`rogatory comments about her on October 2, 2014.
`On October 10, 2014, Dr. Kuriakose asked Dr. Krish-
`namurthy if she could attend a training session related to
`the COPDGene study. Dr. Kazerooni also needed to ap-
`prove Dr. Kuriakose’s participation in the session. Accord-
`ing to an email exchange between Drs. Krishnamurthy and
`
`

`

`KURIAKOSE v. DVA
`
`5
`
`Kazerooni, Dr. Kuriakose had to find other doctors to cover
`the shifts that she would miss while attending the session;
`and Dr. Kazerooni stated that she would withhold her offi-
`cial approval until after Dr. Kuriakose had obtained proper
`coverage for her shifts. J.A. 30–31; J.A. 1610. Dr. Kuria-
`kose asked Dr. Krishnamurthy for permission to move one
`patient to another time and close off the patient’s previous
`time slot so that she could care for the patient before leav-
`ing for her training and so that no patients would be sched-
`uled while she was at the training session, but Dr.
`Krishnamurthy did not do so. J.A. 508.
`On October 14, 2014, four staff radiologists reported to
`Dr. Young that Dr. Kuriakose was causing an uncomforta-
`ble environment, noting that they tried to limit communi-
`cation and interactions with her. Dr. Young began
`investigating the working environment of the radiology de-
`partment. When radiology staff members were asked if
`they had seen or experienced any hostility in the work-
`place, Dr. Kuriakose’s name was the only one mentioned
`several times.
`On November 28, 2014, Dr. Kuriakose sent Dr. Young
`an email that included a notice of resignation. Dr. Kuria-
`kose sent a formal letter of resignation to both the VA and
`the University on December 10, 2014. Her resignations be-
`came effective on December 28, 2014. Dr. Kuriakose’s hus-
`band began a new out-of-state job on January 5, 2015, and
`Dr. Kuriakose joined him out of state after her resignations
`became effective.
`
`B
`On January 23, 2015, Dr. Kuriakose filed a complaint
`with the Office of Special Counsel (OSC) pursuant to 5
`U.S.C. § 1214(a), seeking corrective action for alleged pro-
`hibited personnel practices. J.A. 1760–70. Specifically, Dr.
`Kuriakose alleged that from October 2012 to February
`2014, she had made numerous protected disclosures indi-
`cating that VA doctors were abusing their authority,
`
`

`

`6
`
`KURIAKOSE v. DVA
`
`committing gross mismanagement, violating laws or rules,
`and creating substantial and specific dangers to public
`health and safety. J.A. 1761–64. She also alleged that, as
`a result of her protected disclosures, the VA subjected her
`to certain retaliatory adverse personnel actions, namely:
`(1) a letter from Dr. Krishnamurthy to Dr. Kazerooni dis-
`paraging her; (2) denial of membership on VA committees
`necessary for promotion and advancement; (3) a reduction
`in professional development time; (4) interference with her
`promotion to Assistant Professor at the University; (5) iso-
`lation from other VA staff; and (6) denial of patient cover-
`age needed to enable her to attend the COPDGene study
`training session. J.A. 1765–66. Dr. Kuriakose later added
`an additional allegation of constructive termination result-
`ing from a hostile work environment. See J.A. 1727.
`About two years later, on January 6, 2017, OSC pro-
`vided Dr. Kuriakose with a letter containing proposed fac-
`tual and legal determinations pursuant to 5 U.S.C.
`§ 1213(c). J.A. 1726–27. Dr. Kuriakose did not respond to
`OSC’s letter. See J.A. 1728. On January 20, 2017, OSC
`provided Dr. Kuriakose with a closure letter, terminated
`its inquiry, and notified Dr. Kuriakose that she had ex-
`hausted her claims before OSC and that she had a right to
`file an individual right of action with the Board to request
`corrective action pursuant to 5 U.S.C. §§ 1214(a)(3) and
`1221. J.A. 1728; J.A. 1730–31; see 5 C.F.R. § 1209.5.
`C
`Dr. Kuriakose timely filed an appeal with the Board.
`On August 31, 2017, Administrative Judge Chase found
`that Dr. Kuriakose was entitled to a hearing. J.A. 1692.
`On June 13, 2018, Administrative Judge Puglia held a pre-
`hearing conference at which she ruled that the Board
`lacked jurisdiction over Dr. Kuriakose’s constructive-ter-
`mination claim. See J.A. 1222. Administrative Judge Pu-
`glia also denied Dr. Kuriakose’s request to call Drs.
`Kazerooni, Pernicano, and Kaza as witnesses, finding their
`
`

`

`KURIAKOSE v. DVA
`
`7
`
`proposed testimony “immaterial.” See J.A. 1224. The rul-
`ings were set out in a prehearing order dated June 15,
`2018. J.A. 1221–24.
`Dr. Kuriakose filed a motion for certification of inter-
`locutory appeal to the Board on June 21, 2018, seeking con-
`firmation of Board jurisdiction over her constructive-
`termination claim. J.A. 1217–19. The next day, Dr. Kuria-
`kose filed an objection to the prehearing order. J.A. 1201–
`03. On June 22, 2018, the administrative judge denied the
`motion and clarified that the Board did in fact have juris-
`diction to hear Dr. Kuriakose’s constructive-termination
`claim, as the claim had been included in OSC’s closure let-
`ter to Dr. Kuriakose. J.A. 1213–14.
`The administrative judge held a two-day hearing on
`June 25 and 26, 2018. During the hearing, Administrative
`Judge Puglia stated that she would hear evidence of a hos-
`tile work environment only to adjudicate Dr. Kuriakose’s
`constructive-termination claim, not as its own separate
`claim. J.A. 285–87. Administrative Judge Puglia also ex-
`cluded testimony regarding Dr. Krishnamurthy’s character
`and other employees’ complaints about Dr. Krishna-
`murthy. E.g., J.A. 239–41; J.A. 278–81.
`The administrative judge issued an initial decision on
`August 27, 2018, J.A. 1–39, which became the final decision
`of the Board on October 1, 2018, and for that reason we will
`hereafter generally refer to the administrative judge as the
`Board. The Board found that Dr. Kuriakose had made a
`protected disclosure to Dr. Young during their February
`26, 2014 meeting, that the subsequent reduction in profes-
`sional development time was an adverse personnel action,
`and that the protected disclosure was a contributing factor
`to the reduction in professional development time (because
`of the knowledge/timing test). J.A. 27–28; J.A. 31–32; J.A.
`36. The Board found, however, that the VA had proven by
`clear and convincing evidence that it would have reduced
`Dr. Kuriakose’s professional development time regardless
`
`

`

`8
`
`KURIAKOSE v. DVA
`
`of her protected disclosure because the reduced profes-
`sional development time applied to all VA physicians. J.A.
`37–39.
`The Board found that Dr. Kuriakose’s remaining al-
`leged personnel actions all failed even before the stage at
`which it fell to the VA to prove that it would have taken the
`action regardless of the alleged protected disclosure. In
`particular, the Board found that Dr. Kuriakose was unable
`to attend the COPDGene study training session because of
`her own failure to obtain patient-care coverage, not be-
`cause of a VA personnel action. J.A. 30–31. The Board also
`found that the alleged interference with Dr. Kuriakose’s
`promotion at the University is not a covered personnel ac-
`tion under the WPA. J.A. 31. The Board further found that
`Dr. Kuriakose failed to “establish that she requested to join
`any VA committees from December 2013 [the date of her
`alleged attack predating her protected disclosure] to De-
`cember 2014 [the date of her formal resignation].” J.A. 32.
`Finally, the Board found that Dr. Kuriakose had not
`proven her constructive-termination claim because she had
`failed to rebut the presumption that her resignation was
`voluntary. J.A. 34–36. The Board recognized Dr. Kuria-
`kose’s sense of isolation from and difficulty communicating
`with her co-workers and her resulting concerns for patient
`safety, but it also found that she had received a “satisfac-
`tory” performance evaluation before her resignation and
`was considered a valuable member of the radiology depart-
`ment. J.A. 35–36. The Board also acknowledged Dr. Ku-
`riakose’s allegation that Dr. Jamadar had yelled at her
`during an argument in September 2014. J.A. 35. The
`Board observed, as well, that Dr. Kuriakose’s resignation
`did not become effective until one month after her initial
`notice of resignation, that her husband had recently ac-
`cepted a new job in another state, and that she had simul-
`taneously resigned from the University even though she
`did not find the work environment at the University intol-
`erable. J.A. 35.
`
`

`

`KURIAKOSE v. DVA
`
`9
`
`Dr. Kuriakose timely appealed to this court. We have
`jurisdiction under 5 U.S.C. § 7703 and 28 U.S.C.
`§ 1295(a)(9).
`
`II
`A Board decision must be affirmed unless it is “(1) ar-
`bitrary, capricious, an abuse of discretion, or otherwise not
`in accordance with law; (2) obtained without procedures re-
`quired by law, rule, or regulation having been followed; or
`(3) unsupported by substantial evidence.” 5 U.S.C.
`§ 7703(c). Substantial evidence is “evidence that a reason-
`able mind may take as sufficient to establish a conclusion.”
`Grover v. Office of Pers. Mgmt., 828 F.3d 1378, 1383 (Fed.
`Cir. 2016).
`The WPA prohibits an agency from taking a personnel
`action in retaliation for any whistleblowing “disclosure” or
`activity. 5 U.S.C. § 2302(b)(8)–(9). An employee in Dr. Ku-
`riakose’s position has to show by a preponderance of the
`evidence that she made a protected disclosure that contrib-
`uted to a personnel action against her. See Whitmore v.
`Dep’t of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012). “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 ab-
`sence of such disclosure.’” Id. at 1364 (quoting 5 U.S.C.
`§ 1221(e)). If the agency does not make that showing, the
`agency’s personnel action must be set aside. See Siler v.
`Envtl. Prot. Agency, 908 F.3d 1291, 1298 (Fed. Cir. 2018).
`The Board may consider whistleblowing charges only if the
`claimant presented them to OSC. 5 U.S.C. § 1214(a)(3);
`Ward v. M.S.P.B., 981 F.2d 521, 526 (Fed. Cir. 1992).
`III
`Dr. Kuriakose presents several challenges to the
`Board’s findings and evidentiary rulings. We do not find
`these challenges persuasive.
`
`

`

`10
`
`KURIAKOSE v. DVA
`
`A
`As an initial matter, we reject Dr. Kuriakose’s conten-
`tion that she lacked notice adequate to enable her to pre-
`sent her constructive-termination claim. On June 13,
`2018, after a year of preparations, and shortly before the
`hearing was to occur, the administrative judge stated that
`the Board lacked jurisdiction over Dr. Kuriakose’s con-
`structive-termination claim. Dr. Kuriakose immediately
`challenged that ruling, and the administrative judge
`changed her conclusion nine days later, with the hearing
`taking place three days after that. Dr. Kuriakose has not
`shown that the nine-day period of scope restriction, during
`which the restriction was actively being contested, preju-
`diced her ability to present the constructive-termination
`claim.
`Nor has she shown prejudice from the absence of writ-
`ten confirmation of the burdens of proof or the elements
`necessary to prove her claim. Dr. Kuriakose laid out the
`burdens and her proffered evidence in an earlier response
`to the Board’s initial jurisdictional order. J.A. 1709–11.
`Dr. Kuriakose has not identified any additional evidence or
`arguments that she would have relied on had she been
`given written confirmation of the burden of proof and ele-
`ments to be proven. See Wynn v. U.S. Postal Serv., 115
`M.S.P.R. 146, 150–51 (2010) (“When an administrative
`judge fails to inform the parties of their burden and meth-
`ods of proof, the Board typically remands the appeal so the
`administrative judge can afford such notice and an oppor-
`tunity to submit evidence and argument under the proper
`standard.” (emphasis added)).
`Dr. Kuriakose also argues that the Board erred in not
`considering a separate claim of hostile work environment.
`OSC’s January 6, 2017 letter, however, confirms that she
`relied on a hostile work environment only as part of a con-
`structive-termination claim, not as a separate claim. J.A.
`1727 (discussing Dr. Kuriakose’s claim that “agency
`
`

`

`KURIAKOSE v. DVA
`
`11
`
`officials subjected [her] to a hostile work environment,
`leaving [her] no choice but to resign”). The Board thus
`lacked jurisdiction over a separate hostile work environ-
`ment claim. 5 U.S.C. § 1214(a)(3); see Ward, 981 F.2d at
`526.
`
`B
`Dr. Kuriakose argues that a number of the Board’s
`findings are not supported by substantial evidence. We
`disagree.
`
`1
`Cutting an employee off from training may be a covered
`personnel action if the training “may reasonably be ex-
`pected to lead to an appointment, promotion, performance
`evaluation, or other [covered personnel action].” 5 U.S.C.
`§ 2302(a)(2)(A)(ix). Dr. Kuriakose challenges the Board’s
`findings about her effort to attend the COPDGene study
`training session. We reject the challenge.
`The Board thoroughly reviewed the testimony and doc-
`umentary evidence regarding Dr. Kuriakose’s failure to ob-
`tain patient-care coverage that would free her to attend the
`COPDGene study training session. J.A. 30–31. Email
`communications show that it was Dr. Kuriakose’s respon-
`sibility to obtain coverage for her VA shifts in order to at-
`tend the session. J.A. 1610 (email from Dr. Kazerooni to
`Dr. Krishnamurthy noting that Dr. Kazerooni “told [Dr.
`Kuriakose] to arrange coverage” and that Dr. Kazerooni
`would “only sign off on [her] end once the coverage arrange-
`ments [we]re sent to [her]”). Dr. Kuriakose was aware of
`this responsibility. J.A. 507. Indeed, she asked Dr. Krish-
`namurthy to close off a slot that would have allowed Dr.
`Kuriakose to perform a procedure on one of her patients
`before she left for her training. J.A. 508. Dr. Krishna-
`murthy testified that he did not close off the slot because
`the physician schedule had already been set by the time
`Dr. Kuriakose made the request. J.A. 129–30. The Board
`
`

`

`12
`
`KURIAKOSE v. DVA
`
`reasonably found, based on this evidence, that Dr. Kuria-
`kose had not proven that the VA prevented her from at-
`tending the COPDGene study training session.
`Dr. Kuriakose faults the Board for relying on some of
`Dr. Krishnamurthy’s testimony without considering an al-
`leged inconsistency. All that Dr. Kuriakose cites, however,
`is a possible minor inconsistency that is not specifically
`about the effort to attend the COPDGene study training
`session. See J.A. 124; J.A. 1164. The Board was entitled
`to make credibility determinations, and the decision to
`credit the key testimony of Dr. Krishnamurthy was not an
`abuse of that discretion. See Bieber v. Dep’t of the Army,
`287 F.3d 1358, 1364 (Fed. Cir. 2002).
`2
`Substantial evidence also supports the Board’s deter-
`mination that Dr. Kuriakose failed to prove that her depar-
`ture from the VA was something other than the voluntary
`resignation that it was on its face. “Resignations are pre-
`sumed voluntary, and the burden of showing that the res-
`ignation was involuntary is on the petitioner.” Terban v.
`Dep’t of Energy, 216 F.3d 1021, 1024 (Fed. Cir. 2000). Our
`cases look at the circumstances, objectively considered, and
`focus on whether the resignation was shown to have re-
`sulted from misinformation, deception, or coercion by the
`agency. Id.
`Here, Dr. Kuriakose notified Dr. Young of her impend-
`ing resignation in late November 2014, but did not send a
`formal letter until mid-December, and the resignation took
`effect on December 28, 2014. J.A. 17; J.A. 1596. The Board
`could properly consider it significant that Dr. Kuriakose’s
`husband began a new out-of-state job approximately one
`week after Dr. Kuriakose’s resignation became effective.
`J.A. 35; J.A. 547–48. In addition, Dr. Kuriakose simulta-
`neously resigned from her position at the University even
`though she testified that the working conditions at the Uni-
`versity were not intolerable. J.A. 522–23.
`
`

`

`KURIAKOSE v. DVA
`
`13
`
`The Board properly determined that the events to
`which Dr. Kuriakose points do not add up to intolerable
`conditions that would make her resignation involuntary.
`Although Dr. Kuriakose had concerns that her difficult
`working environment negatively affected her patients’
`safety, the evidence shows that she was objectively provid-
`ing satisfactory care and meeting deadlines. J.A. 35–36;
`J.A. 136; J.A. 499. Difficulties in getting along with co-
`workers do not on their own amount to an objectively intol-
`erable work environment. See Miller v. Dep’t of Defense, 85
`M.S.P.R. 310, ¶ 32 (2000). And that conclusion is not un-
`dermined by the alleged remarks of Dr. Jamadar to her in
`September 2014 (or about her shortly thereafter).
`Nor is a different conclusion supported by the evidence
`concerning the VA’s attempt to move her workstation. To
`the extent that Dr. Kuriakose is arguing that the attempt
`to move workstations was itself a personnel action, she did
`not so allege in her complaint to OSC and cannot raise such
`a challenge before this court for the first time. 5 U.S.C.
`§ 1214(a)(3); see J.A. 1727. To the extent that she is argu-
`ing that the attempt to move workstations contributed to
`her intolerable work environment, record evidence does not
`support her allegation. Dr. Krishnamurthy offered to have
`Dr. Kuriakose’s workstation moved if she felt that the move
`would improve her environment; Dr. Kuriakose declined;
`and she was not in fact required to move her workstation.
`J.A. 7; J.A. 143–44; J.A. 475; J.A. 1656. That incident does
`not justify finding an objectively intolerable work environ-
`ment, even when considered with the other facts.
`Dr. Kuriakose also takes issue with the Board’s assess-
`ment of the timekeeping and leave procedures to which Dr.
`Kuriakose was subjected. Dr. Kuriakose did not separately
`allege changes in timekeeping and leave policies as a per-
`sonnel action in her complaint to OSC and cannot raise the
`issue for the first time here. 5 U.S.C. § 1214(a)(3); see J.A.
`1727. To the extent that Dr. Kuriakose argues that
`changes in timekeeping and leave policies contributed to
`
`

`

`14
`
`KURIAKOSE v. DVA
`
`an intolerable work environment, that allegation is unsup-
`ported by the record. Dr. Krishnamurthy had repeatedly
`expressed concerns that Dr. Kuriakose was not following
`the VA’s rules for timekeeping and leave. J.A. 7; J.A. 1493–
`94. Dr. Kuriakose has not alleged that the rules applied to
`her were any different from the rules applied to all VA phy-
`sicians. Requiring her to comply with the agency’s rules is
`not evidence of an objectively intolerable work environ-
`ment.
`
`3
`Dr. Kuriakose also disagrees with the credibility deter-
`minations made by the Board regarding Dr. Kuriakose’s
`exclusion from VA committees and her isolation from co-
`workers. We give great deference to such credibility deter-
`minations. Bieber, 287 F.3d at 1364. We see no reversible
`error here.
`The Board found that there were no requests to join
`committees in the relevant time period. J.A. 32. Its deci-
`sion in that respect is supported by substantial evidence.
`Nor did the Board err in assessing Dr. Kuriakose’s tes-
`timony that she was isolated from co-workers. In fact, the
`Board credited Dr. Kuriakose’s testimony on this topic, not-
`ing that she had “demonstrated that colleagues avoided in-
`teracting with her.” J.A. 35–36. But, as discussed above,
`the Board properly found that this did not rise to the level
`of a constructive termination, noting, among other things,
`Dr. Kuriakose’s own role in her isolation, evinced by the
`information Dr. Young received on the subject. J.A. 1592;
`J.A. 1606–08. And even with the noted isolation, Dr. Ku-
`riakose received “satisfactory” performance reviews, was
`considered a “valuable member” of the radiology team by
`Dr. Krishnamurthy, and met patient deadlines. J.A. 35;
`J.A. 136; J.A. 499. There is no error in the Board’s assess-
`ment of the evidence on this topic.
`
`

`

`KURIAKOSE v. DVA
`
`15
`
`4
`Finally, Dr. Kuriakose argues that an allegedly dispar-
`aging letter from the VA to the University in 2013 consti-
`tuted a personnel action. Dr. Kuriakose has not challenged
`the Board’s finding that her only protected disclosure was
`to Dr. Young on February 26, 2014. Any actions before that
`date, including the 2013 letter, cannot be retaliatory per-
`sonnel actions. J.A. 31; J.A. 1712. Further, a disparaging
`letter without more is not a personnel action under 5
`U.S.C. § 2302(a). Dr. Kuriakose’s additional allegations
`that the VA otherwise interfered with her advancement at
`the University are not supported by record evidence.
`C
`Dr. Kuriakose argues that the Board overlooked sev-
`eral pieces of significant evidence. See Whitmore, 680 F.3d
`at 1376 (noting duty to consider evidence). We disagree.
`Regarding Dr. Kuriakose’s claim that the VA pre-
`vented her from attending the COPDGene study training
`session, she argues that the Board did not consider the fact
`that Dr. Kuriakose could not attend the training session
`because Dr. Krishnamurthy failed to close off a slot for her
`if she moved a patient from that slot to complete the pa-
`tient’s treatment before she left for the training session.
`But the Board did consider that fact, as discussed above.
`J.A. 30–31.
`With respect to the constructive-termination claim, Dr.
`Kuriakose argues that the Board did not consider (1) the
`totality of circumstances, (2) the offer to move her work sta-
`tion, (3) evidence regarding her date of resignation, (4) the
`impact that her work environment had on patient care, (5)
`changes in timekeeping and leave practices, (6) an overall
`change in working conditions, (7) Dr. Jamadar’s allegedly
`derogatory comments and behavior, (8) Dr. Young’s inves-
`tigation into other radiology staff’s complaints about Dr.
`
`

`

`16
`
`KURIAKOSE v. DVA
`
`Kuriakose, (9) her exclusion from VA committees, and (10)
`interference with promotion at the University.
`Several of Dr. Kuriakose’s arguments go to the weight
`the Board gave to the evidence. Those arguments have al-
`ready been reviewed above. And we see no failure of the
`Board to consider all the relevant circumstances in ruling
`on the constructive-termination claim. The Board consid-
`ered Dr. Krishnamurthy’s offer for Dr. Kuriakose to move
`workstations (J.A. 7–9), the timing of Dr. Kuriakose’s res-
`ignation (J.A. 35), allegations of discrimination as far back
`as 2012 (J.A. 35), Dr. Kuriakose’s concerns for patient
`safety (J.A. 35), the particular timekeeping and leave pro-
`cedures put in place to help Dr. Kuriakose comply with the
`VA’s requirements (J.A. 7, 17), whether Dr. Kuriakose had
`objectively experienced a change in working conditions
`(J.A. 35), allegedly derogatory comments made by Dr. Jam-
`adar (J.A. 12–15, 35), Dr. Kuriakose’s feelings of isolation
`and poor communication with her co-workers (J.A. 36), Dr.
`Young’s investigation into Dr. Kuriakose’s interactions
`with her co-workers (J.A. 35–36), whether Dr. Kuriakose
`was excluded from VA committees (J.A. 32–34), and
`whether the VA interfered with Dr. Kuriakose’s promotion
`at the University (J.A. 31). That the Board did not find this
`evidence persuasive does not mean that it failed to consider
`it.
`
`D
`The Board, and specifically an administrative judge,
`may exclude witness testimony and evidence that is irrele-
`vant, immaterial, or repetitious, and we review such exclu-
`sion for abuse of discretion. 5 C.F.R. § 1201.41(b)(10);
`Curtin v. Office of Pers. Mgmt., 846 F.2d 1373, 1378 (Fed.
`Cir. 1988) (“Procedural matters relative to discovery and
`evidentiary issues fall within the sound discretion of the
`board and its officials.”). Even if there were an abuse of
`discretion in excluding witnesses or testimony, Dr. Kuria-
`kose could obtain relief here only by showing that the error
`
`

`

`KURIAKOSE v. DVA
`
`17
`
`caused “substantial harm or prejudice to [her] rights which
`could have affected the outcome of the case.” Id. at 1379.
`Dr. Kuriakose challenges the Board’s exclusion of Drs.
`Kazerooni, Pernicano, and Kaza from testifying at Dr. Ku-
`riakose’s hearing. J.A. 1224. She also challenges the ex-
`clusion of certain evidence regarding retaliatory animus
`and harassment. For the reasons discussed below, we do
`not find any of these challenges persuasive.
`1
`The Board did not err in excluding Dr. Kuriakose’s Uni-
`versity supervisor, Dr. Kazerooni, who, Dr. Kuriakose said,
`would testify about “her communications with the VA on
`Dr. Kuriakose’s behalf regarding allegations of sexual har-
`assment and whistleblower retaliation.” J.A. 1538. Dr.
`Kuriakose now claims that Dr. Kazerooni also could have
`testified about the specific incidents that Dr. Kuriakose al-
`leges led to her constructive termination, including the re-
`duction in professional development time, denial of
`training, harassment by co-workers, the totality of the cir-
`cumstances experienced by Dr. Kuriakose, the timing of
`Dr. Kuriakose’s resignation, and interference with Dr. Ku-
`riakose’s promotion at the University. Dr. Kazerooni, how-
`ever, is not an employee of the VA, and Dr. Kuriakose has
`not shown what information on the above-described topics
`she could supply that was from personal knowledge, was
`relevant, and was not duplicative of Dr. Kuriakose’s and
`other witnesses’ testimony. Dr. Kazerooni might have per-
`sonal knowledge of and non-duplicative testimony about
`the alleged interference with Dr. Kuriakose’s promotion at
`the University, but as discussed above, the Board properly
`found that the alleged interference was not a personnel ac-
`tion covered by 5 U.S.C. § 2302(a). Testimony from Dr.
`Kazerooni on that topic could not have changed the Board’s
`conclusion.
`
`

`

`18
`
`KURIAKOSE v. DVA
`
`2
`Dr. Kuriakose sought to have Dr. Perry Pernicano, one
`of her VA co-workers, testify about “retaliatory actions
`taken against Dr. Kuriakose following her protected disclo-
`sures.” J.A. 1537. Dr. K