shaw bransford & roth case law update

Veterans Benefits Administration Fails to Rebut Whistleblower Reprisal Claim Despite Lack of Evidence of Motive to Retaliate

Although the Merit Systems Protection Board found little evidence of retaliatory motive on the part of the Agency, the Veterans Benefits Administration presented insufficient evidence to show that it would have canceled an employee’s duties as Program Manager regardless of her disclosure that she believed Federal Acquisition Regulations had been violated.

A Strategic Learning Services (“SLS”) Learning Resource Officer at the Veterans Benefits Administration (“VBA”) within the agency’s Office of Employee Development and Training (“ED&T”) was assigned as the Program Manager for a joint competencies project between ED&T and Technical Training and Evaluation (“TT&E”). The relationship between the two intra-agency divisions was described as a “matrix relationship,” with employees of SLS and TT&E working together in a merged effort. In October 2013, the employee disclosed what she believed to be violations of Federal Acquisitions Regulations in the assignment of contract work for the competency mapping project. Specifically, the employee believed that the Contracting Officer’s Representative was assigning work improperly to one contractor when another contractor had won the bid for the contract.

The Director of TT&E promptly met with VBA acquisitions personnel to discuss these concerns, and was informed that the contractor’s involvement was not improper. The Director later met with the employee’s supervisor, who in turn called the employee to inform her of the outcome of the discussion, which included information about the dissolution of the matrix relationship over which the employee was serving as Program Manager. After that discussion, the employee complained in an email to her supervisor that her supervisor had failed to protect her from alleged retaliation from the Director. The employee then filed a whistleblower retaliation complaint with the Office of Special Counsel, alleging that due to her disclosure regarding purported violations of the Federal Acquisitions Regulations, she had been removed from her position as Program Manager and that her performance evaluation had been lowered.

OSC subsequently informed the employee that it had terminated its investigation. The employee, after receiving notice of the complaint’s closure, filed a timely Individual Right of Action complaint with a Merit Systems Protection Board administrative judge. The administrative judge found that the employee believed she was reporting a violation of law, rule, or regulation (therefore making the disclosure “protected” under whistleblower law), and that the disclosures were a “contributing factor” in the change of duties and lowered performance appraisal. However, the administrative judge found that the agency had established by clear and convincing evidence that it would have taken the same actions in the absence of her whistleblowing, and so denied the employee’s request for corrective action. The employee appealed the decision to the full Board. On January 14, 2016, after analyzing whether the Agency met the “clear and convincing evidence” standard described above, the Merit Systems Protection Board affirmed the initial decision in part, reversed the initial decision in part, and remanded the matter for a determination of the proper corrective action.

The full Board, after review, concluded that the administrative judge was correct in finding that the Agency had provided clear and convincing evidence that the employee’s performance appraisal would have been the same regardless of her protected disclosures. But the Board disagreed with the administrative judge’s finding regarding the other personnel action at issue (the agency’s decision to relieve the employee of her duties as Program Manager for the matrix relationship).

While the administrative judge based his finding on the agency’s explanation that it already had a “plan” in place before the employee’s disclosures to reassign the SLS competency model to TT&E, the Board observed that an email from the employee’s supervisor to the employee summarizing his discussion with the Director indicated that the matrix relationship was being discontinued pursuant to a contemporaneous conversation between the Director and the employee’s supervisor. The Board also observed that the agency failed to provide any declarations or sworn statements from either the supervisor or the Director of TT&E (the two individuals responsible for discontinuing the matrix relationship) to corroborate the Agency’s position.

The employee’s disclosure did not result in the discovery of an actual violation of law, rule, or regulation, and the individual accused by the employee’s disclosure was cleared of wrongdoing within “a few days of the appellant’s disclosure.” Additionally, the Board did not find evidence of retaliatory motive on behalf of the supervisor or the Director, since the disclosure did not reflect negatively on either individual. However, “because the agency failed to present evidence to explain its reasons for discontinuing the matrix relationship, which resulted in the removal of the appellant’s duties as Program Manager of that project,” the Board found that the agency failed to prove by clear and convincing evidence that it would have removed those duties in the absence of the employee’s whistleblowing.

For the above stated reasons, the Merit Systems Protection Board granted the employee’s petition for review, affirmed the initial decision in part, reversed the initial decision in part, and remanded the matter for corrective action.

Read the full case: Runstrom v. Department of Veterans Affairs.

Read the full case: Runstrom v. Department of Veterans Affairs


This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

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