Whistleblowing is Not a Slam Dunk Defense in Termination Action

By • September 13, 2012 0 Comments

A human resource specialist fired for playing fast and loose with the agency’s rules and procedures was not able to convince the Merit Systems Protection Board nor the court that his firing constituted illegal retaliation against him as a whistleblower. (Rogers v. Department of Veterans Affairs, CAFC No. 2012-3089 (nonprecedential), 7/13/12)

According to the court’s decision, Mr. Rogers worked at the San Antonia office of VA’s South Texas Health Care System when the agency proposed his removal based on three charges. Charge one, “Altering Official Government Documents” was based on Rogers copying and whiting out a previously approved SF-52 (request for personnel action) in order to process a different candidate without getting separate supervisory approval on the request form.  The second charge was “Failure to Safeguard Confidential Information” and had two separate specifications cited in support. Apparently Rogers provided his personal information and passwords to a coworker who used them to access HR information and databases to which the coworker was not permitted access. The third charge, “Failure to Follow Instructions” involved Rogers releasing referral certificates without his boss’s approval even though he had been specifically instructed not to do this. (Opinion pp. 2-3)

A few weeks after receiving the proposed removal notice, Rogers petitioned the Office of Special Counsel claiming to have previously been a whistleblower and that now the agency was retaliating against him for that protected activity. Rogers then responded to the proposed removal, arguing that the agency knew he was a whistleblower and was retaliating against him. Notwithstanding, the agency decided to remove Rogers and he took his case to the MSPB.

The Board rejected the whistleblowing defense because the agency had proved it would have removed Rogers anyway. (p. 4)

Undeterred, Rogers took his case to the appeals court. As to charge one he argued the agency had not proved he had “knowingly supplied false information with the intention of defrauding the Agency.” (p. 5) Unfortunately for him, the court points out that what he was actually charged with was altering an official document and the agency had proved this misconduct. As to the second charge, Rogers tried unsuccessfully to convince the court that the MSPB had made incorrect findings of fact. Since the findings were supported by substantial evidence, the court declined to disturb the MSPB’s upholding of this charge.

On to charge three where Rogers argued to the court that the agency did not prove he “intended to disregard the Agency’s instructions.” (p. 5) The court points out that his intend has nothing to do with a failure to follow instructions charge.  (p. 5)

The court finally turns its attention to the whistleblowing affirmative defense. It finds no basis to overturn the Board’s conclusion that the agency had met its burden that it would have removed Rogers in the absence of any whistleblowing. (p. 6)

In short, Mr. Rogers remains terminated from his HR position unless he can somehow persuade the Supreme Court to take up his case.

Rogers v. VA (2012-3089)

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About the Author ( )

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.

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