OSC File Amicus Brief Against Elevated Burden of Proof in VA Whistleblower Case
Attesting that it has a substantial interest in a legal issue presented by Salazar v. Department of Veterans Affairs, the Office of Special Counsel filed a “friend of the court,” or amicus curiae, brief on August 3, 2016, with the Merit Systems Protection Board arguing that an employee who makes a disclosure in his normal course of duties should not be subject to an elevated standard when attempting to prove a prima facie case of whistleblower retaliation.
In 2013, a VA motor vehicle operator supervisor emailed his first-level supervisor about problems with the agency vehicle and fleet card usage, and complained about lax recordkeeping, delinquent maintenance, and irregular purchases, among other things. An Administrative Investigation Board investigation resulted, and that investigation concluded that managerial oversight contributed to the theft of government vehicles. The employee’s first-level supervisor was disciplined as a result of the AIB investigation. Subsequent to that discipline, the employee was subjected to a number of personnel actions by his first-level supervisor: a request for training was denied, performance standards were changed, and the employee was placed on a performance improvement plan (“PIP”). The first-level supervisor subsequently recommended the employee’s removal for failing the PIP, and the employee was removed on February 4, 2015.
The employee filed a complaint with OSC. After the complaint was closed, the employee filed an Individual Right of Action appeal with the MSPB, requesting corrective action. That request was denied because the Administrative Judge concluded that the employee failed to meet the “extra evidentiary burden” under section 2302(f)(2) to establish that the disclosures he made as part of his normal duties were “actually protected under the Whistleblower Protection Enhancement Act. Therefore, the employee could not use the burden-shifting rule usually applied in retaliation cases, which only would have necessitated making a showing that the disclosure was a “contributing factor” in the employee’s first-line supervisor’s decisions to take personnel actions against the employee. The administrative judge analyzed the evidence in the record under factors typically reserved for both the contributing factor standard and the clear and convincing evidence standard, and found that the employee failed to meet this heightened standard.
In its brief, OSC argued that Congress did not intend for Section 2302(f)(2) to apply to employees who happen to make a disclosure during the course of their normal duties. Instead, OSC argued, Congress intended this provision to apply “only to disclosures made by federal employees who regularly investigate and report wrongdoing as their principal job functions, such as auditors and investigators.” OSC also argued that even if Section 2302(f)(2) applied, the Administrative Judge’s analysis was in error due to its reliance on an improperly formulated “in reprisal for” standard when 2302(f)(2) only places a “slightly higher burden on an employee whose disclosure is made in the normal course of duties. According to OSC, “the Administrative Judge upended the WPEA’s carefully crafted burdens of proof in whistleblower retaliation cases and imposed an unduly onerous burden on [the employee].”
OSC also proferred what it believes to be the appropriate standard in cases such as this. That standard is referred to as the “contributing-factor-plus” approach for analyzing whistleblower cases under 2302(f)(2). This approach is supplemental to the contributing factor standard, adding a requirement that the employee offer additional evidence of retaliatory motive that the alleged personnel action was taken in reprisal for the disclosure. OSC thereafter listed eight factors which tend to show retaliatory motive.
For the above stated reasons, the Office of Special Counsel filed a “friend of the court,” or amicus curiae, brief with the Merit Systems Protection Board.
Read the full brief: Salazar v. Department of Veterans Affairs
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