Case: 23-1861 Document: 22 Page: 1 Filed: 04/10/2024
`
`
`
`NOTE: This disposition is nonprecedential.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
`______________________
`
`GONZALO CORPUS, San Antonio, TX, pro se.
`
`
` REBECCA SARAH KRUSER, Commercial Litigation
`Branch, Civil Division, United States Department of Jus-
`tice, Washington, DC, for respondent. Also represented by
`BRIAN M. BOYNTON, ELIZABETH MARIE HOSFORD, PATRICIA
`M. MCCARTHY.
`
`______________________
`
`Before TARANTO, STOLL, and STARK, Circuit Judges.
`
`

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`Case: 23-1861 Document: 22 Page: 2 Filed: 04/10/2024
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`2
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`CORPUS v. DVA
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`PER 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
`
`
`“S.A.” refers to the supplemental appendix filed
`1
`with the government’s response (ECF No. 15).
`
`

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`Case: 23-1861 Document: 22 Page: 3 Filed: 04/10/2024
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`CORPUS v. DVA
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`3
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`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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`Case: 23-1861 Document: 22 Page: 4 Filed: 04/10/2024
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`CORPUS v. DVA
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`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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`Case: 23-1861 Document: 22 Page: 5 Filed: 04/10/2024
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`CORPUS v. DVA
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`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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`Case: 23-1861 Document: 22 Page: 6 Filed: 04/10/2024
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`6
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`CORPUS v. DVA
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`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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`Case: 23-1861 Document: 22 Page: 7 Filed: 04/10/2024
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`CORPUS v. DVA
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`7
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`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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`Case: 23-1861 Document: 22 Page: 8 Filed: 04/10/2024
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`8
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`CORPUS v. DVA
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`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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`

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`CORPUS v. DVA
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`[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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`Case: 23-1861 Document: 22 Page: 10 Filed: 04/10/2024
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`CORPUS v. DVA
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`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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`Case: 23-1861 Document: 22 Page: 11 Filed: 04/10/2024
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`CORPUS v. DVA
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`11
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`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
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`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.
`
`