Whistleblower Protection Agency Argues for Lower Standard for Feds to Prove They've Been Retaliated Against

The agency tasked with protecting federal employees who blow the whistle on wrongdoing is faulting an appeals board for creating a new standard those workers must clear to prove their case.

The Office of Special Counsel submitted a brief to defend a whistleblower at the Veterans Affairs Department against what it called an unduly onerous burden created by a Merit Systems Protection Board judge that disregards federal law and threatens to discourage federal workers from disclosing wastefulness and illegal activity in the future. An MSPB judge ruled against Anthony Salazar, a motor vehicle operator supervisor at VA, who won his job back several years prior after being dismissed in a case of alleged whistleblower reprisal. 

A VA investigation in 2014 substantiated Salazar's reports that dozens of department vehicles were unaccounted for and fleet cards were being used for fraudulent purposes. The department sent a letter of reprimand to Salazar's supervisors for poor management. One of those supervisors subsequently changed Salazar's performance standards and later recommended his termination. Salazar was fired in early 2015. 

After OSC intervention in 2016, Salazar was given his job back. There was an error in the deductions in his paycheck related to his health care, however, which led to lost wages. Salazar filed another complaint with MSPB, saying the pay issue was related to his whistleblowing. An MSPB judge ruled Salazar could not prove the pay processor was aware of his whistleblowing and therefore the issue was not subject to whistleblower protections. 

Henry Kerner, head of OSC, and other officials at the agency argued in their brief that whistleblower law does not require employees to prove their disclosures were material to a personnel action. They added the Whistleblower Protection Act’s provisions applied because the pay issue resulted from the sequence of events that began with Salazar’s disclosure. Whistleblowers often use the fact that managers knew about their disclosures before making a personnel action to demonstrate evidence of reprisal, OSC said, but it is not necessary under the law. 

The law’s text “contains no basis to create a knowledge requirement, and neither the board nor the courts should create one in its absence,” OSC said. Kerner and his colleagues noted that Congress specifically passed additional whistleblower laws with the express purpose of lowering the evidentiary burden so federal employees would not have to prove advanced knowledge of their disclosures, but rather that their whistleblowing contributed in some way to a negative personnel action. 

Normally, a federal employee like Salazar would only have to establish that his disclosures were a “contributing factor” to his firing to become entitled to whistleblower protection rights. Once established, the accused agency would then face the burden of proving it would have taken the action regardless of the employee’s disclosure. 

“This decision not only disregards the plain text and overarching purpose of the statute to provide broad relief to whistleblowers, but can also lead to unjust results,” OSC said in a statement. “OSC urges the board to reverse the administrative judge’s decision so that federal employees—like Mr. Salazar—can feel confident that their properly pled claims of retaliation will not be prematurely dismissed.”

The board does not currently have any presidentially appointed, Senate-confirmed members, and therefore cannot rule on Salazar’s case. The central panel is facing a backlog of more than 3,000 cases. 

The 2020 case marks the second time an MSPB judge has attempted to apply a higher standard of proof on Salazar. In 2016, a judge on Salazar’s original case pointed to a provision of whistleblower law reserved for auditors and investigators in suggesting the burden was on the employee to show he was fired because of his reprisal. The higher burden was improperly applied to Salazar and incorrectly interpreted, OSC said at the time. 

Even if Salazar met that definition under the statute, OSC said MSPB still came down too hard as Congress did not intend to carve out an “onerous evidentiary burden.” OSC called the judge’s approach “odd, confusing and unnecessary.”

Salazar’s newest case is just the most recent example of OSC clashing with MSPB in recent months.