New MSPB Whistleblower Decisions – Part 3

As we earlier noted in Part 1 and Part 2, after a long pause due to a lack of a quorum, the Merit Systems Protection Board has begun issuing decisions, and many of them concern whistleblowers. On April 26, 2022, the Board issued a precedential decision in Wilson v. Department of Veterans Affairs, 2022 MSPB 7. Arnold Wilson was a supervisor in charge of sterilizing equipment at the VA’s Tennessee Valley Healthcare System in Nashville, Tennessee; he was demoted in December 2017 for conduct related to his management of the sterilizing equipment.

In June 2017, Congress created a special procedure under which the VA may take adverse actions against its employees. Under the new Act, employees who are subjected to an adverse action can appeal to the MSPB, but instead of having 30 days to appeal as do other civil service employees, VA employees must appeal to the Board within 10 days. Mr. Wilson also believed that his demotion constituted discrimination.

The first issue in the case was whether Mr. Wilson’s appeal to the Board was timely. When he was removed, Wilson already had a pending EEO complaint, and he added his removal as an issue in the complaint. The Agency argued that Mr. Wilson’s appeal was untimely because he didn’t bring his claim to the Board within the 10-day time limit. The Board held that the new Act did not change the procedure for “mixed cases” at the VA, so when he was demoted he had the option of pursuing the matter either through the Agency EEO process or the MSPB, and whichever he started first was his election of remedies. Mr. Wilson commenced his challenge to the demotion through his EEO complaint, so the 10-day limit in the Act no longer applied. Under the “mixed case” statute, 5 U.S.C. § 7702, after a mixed case complaint is pending for 120 days without a decision, the employee may bring the matter to the MSPB. Mr. Wilson’s appeal to the MSPB after 120 days was timely.

As a sidenote to the timeliness issue, the Agency had stipulated that Mr. Wilson’s appeal was timely. However, the Board also held that parties cannot stipulate to legal conclusions, such as its jurisdiction over an appeal. Accordingly, the Board needed to make its own finding about the timeliness of the appeal, leading to the above analysis.

Next, the Board rejected the VA’s efforts to apply the time limits in the new Act to Mr. Wilson’s appeal. The Federal Circuit had already held that the new Act could not apply retroactively. Following the court, the Board held that the new Act would not apply to Mr. Wilson for conduct that occurred before the Act’s 2017 effective date.

Mr. Wilson alleged that his demotion was actually retaliation for his attempts, starting in 2015, to get the Agency to replace inadequate and defective equipment. The AJ found that these attempts were protected disclosures of a substantial and specific danger to public health and safety and were a contributing factor in his demotion. Helpfully, the Board held that Mr. Wilson was not required to show any actual harm to any particular patients.

In this regard, the Agency argued that Mr. Wilson could not prevail because he could not show that the officials who demoted him were specifically aware of his disclosures. As in the Smith and Soto cases, discussed in Part 1 and Part 2 of this discussion, the Board took into account that Mr. Wilson’s disclosures of equipment problems reached higher levels of management who failed to correct the problem. Because the disclosures reflected poorly on “[t]hose responsible for the agency’s overall performance,” they created a motive to retaliate. Moreover, the VA’s failure to investigate adequately the charge against Mr. Wilson was another indicator of a motive to retaliate. Together, these decisions relieve whistleblowers of the burden of proving an individual decision-maker’s knowledge and, instead, permit a finding of motive based on the effect of the disclosures on the agency as an institution. This shift in analyzing the motive to retaliate should make it easier for whistleblowers to prevail.

Finally, though the VA argued that it dealt with other managers just as it did Mr. Wilson, the Board found that the VA failed to establish 1) who it included as comparators; 2) their positions; 3) the charges against them; 4) the penalties imposed on them’ and 5) whether they had engaged in any protected activities. Accordingly, the Board found the VA’s evidence fell short of “clear and convincing.” The Board ordered the VA to reinstate Mr. Wilson with backpay and benefits. It also permitted Mr. Wilson to make a motion to receive compensatory damages as provided by 5 U.S.C. § 1221(g)(1)(A)(ii).

The current Board members have thus far been releasing 80 or so decisions a month. Leaving aside the 50 or so appeals that are being filed each month, it will still take about 45 months to work through the current backlog of 3600 cases. The recent confirmation of Cathy Harris as a third Board member may help pick up the pace. At least the Board appears determined not to weaken the whistleblower protections insisted upon by Congress.

If you have any concerns or questions regarding whistleblower protections, the attorneys at KCNF are experienced in whistleblower laws and employment retaliation and can be contacted here. This is the third in a series of blogs discussing the Board’s new whistleblower cases.

This blog also appeared in FEDweek on June 10, 2022.