For third time, OSC says burdens on whistleblowers are too high

The Office of Special Counsel offered a new approach for analyzing whistleblower retaliations cases that the agency said should make future procedures before the court “more fair, reasonable and workable.”

The response from OSC comes as the agency weighed in on a whistleblower retaliation case in its third amicus brief arguing against “higher evidentiary burdens of proof” in these kinds of cases.

According to OSC, Anthony Salazar, a motor vehicle operator at a Veterans Affairs healthcare facility in Los Angeles, shouldn’t need to provide more evidence to prove that he was fired for blowing the whistle. And the MSPB judge who ruled on Salazar’s case added too much evidentiary burden on him, which contradicts the original intentions of the Whistleblower Protection Enhancement Act (WPEA).

“Despite clear congressional intent that [a provision in WPEA] places only a ‘slightly higher burden’ on an employee whose disclosure is made in the normal course of duties, the administrative judge upended WPEA’s carefully crafted burdens of proof in whistleblower retaliation cases and imposed an unduly onerous burden on Mr. Salazar,” OSC wrote.

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An administrative judge applied a provision to Salazar that, according to OSC, was meant 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,” the brief said.

Salazar told his supervisor in 2014 about several inconsistencies that he noticed with the agency’s fleet. He said 30 of the 88 agency cars were unaccounted for, and he noticed that employees made fraudulent purchases with 10 fleet cards.

A VA investigation found that Salazar’s managers played a part in the missing vehicles. His immediate supervisor, Robert Benkeser, received a letter of counseling, OSC said.

A few months later, Benkeser changed Salazar’s performance standards and denied his request for training. Salazar had trouble meeting his new standards, and Benkeser put him on a performance improvement plan (PIP). Benkeser then recommended that the department fire Salazar after he failed his PIP. The VA fired Salazar in February 2015.

Salazar filed a complaint with OSC and an appeal with the Merit Systems Protection Board. An MSPB judge claimed that a specific section in WPEA  placed a higher burden of evidence on employees who report wrongdoing as part of their normal job applied to Salazar. The judge denied Salazar’s appeal, because he couldn’t provide the evidence.

OSC argued for a new approach, called “contributing-factor-plus,” to analyze whether a whistleblower retaliation case is consistent with the Whistleblower Protection Enhancement Act, OSC said.

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First, the employee should show that he or she “reasonably believes” that the disclosure demonstrates that some sort of law, rule or regulation was broken or evidence of mismanagement, waste, fraud and abuse.

Next, the whistleblower should show “that the agency official taking the personnel action knew of the disclosure, and the personnel action occurred within a period of time such that ‘a reasonable person could conclude’ that the disclosure was a contributing factor in the personnel action,” the brief said.

For whistleblowers who regularly investigate or report wrongdoing as part of their job and the disclosure happened as part of the employee’s normal duties, they must show more evidence that the personnel action was taken specifically in retaliation, OSC said.

OSC handled a record number of whistleblower cases in fiscal 2015 than any other year in the agency’s history. OSC sent more reports of whistleblower disclosures to Congress and the President between 2014 and 2015 — a 177 percent increase over previous years.

The agency handled the most number of cases from the VA in 2015. It received 2,165 prohibited personnel, whistleblower and USERRA cases from the VA — roughly 800 more cases than the agency with the next highest total, the Defense Department.