Whistleblowing is Not a Slam Dunk Defense in Termination Action

By on September 13, 2012 in Court Cases, Current Events with 6 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 (Rogers v. Department of Veterans Affairs, CAFC No. 2012-3089 (nonprecedential), 7/13/12)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)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.

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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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  1. Fedgirly says:

    Sounds to me like he doesn’t give a rat’s a** about doing his job, has no respect for authority and has no interest in abiding by policy. Whether a “whistleblower” or not, he fails to follow instruction. Period. That is insubordination and you can be dismissed for it alone. He doesjn’t stop there, though. From the insubordination, this guy goes into altering documents, albeit – in a stone age manner, AND giving out his password (the IT crew probably had a stroke) to an UNAUTHORIZED employee.
    Come on people …. whistleblower or not, this guy not only has no respect for authority, he gives it the “one-finger salute” with BOTH hands AND spits squarely in its face at the same time.  In my opinion, he thought the “whistleblower” status would shield him from any sort of action (disciplinary or adverse)  taken against him.  Well, I, for one, am glad it didn’t. People like this are morale killers. No one benefits when someone this toxic is a a part of their work unit.
    Good riddance. See ya’ at McDonalds.

  2. Ross200 says:

    This case speaks to the utter inefficiency of the VA Administration. The first charge relates to copying a paper SF-52 and using “Whiteout.”  I worked for the IRS before I retired in 2008. I don’t believe that the IRS has used paper SF-52s in 20 years. When I retired in 2008, I had not seen anyone using “Whiteout” for 15 or so years. Do they even manufacture “Whiteout” anymore ? These folks at the VA need to get up to speed. And we wonder why the taxpayers ate so upset with the Federal Government. Can you blame them ?

  3. Mike says:

    It sounds like there was some retaliation to me.  Management can always come up with reasons (esp. on a whistleblower) to “rid themselves” of trouble.  The last two reasons for dismissal are lame but the first sounds like it has such merit.  Either way, I believe reliation played a big factor in his dimissal.

    • shiver-me-timbers says:

       I agree.  I have never had a reason to be a whistleblower myself but it is verrrry disappointing to see this kind of case being upheld as I bet he was being put under a microscope in an attempt to “find” something which qualified him for firing.  This and other stories I have read does nothing but put the “fear of God” into potential whistleblowers who do a service and step out on a limb.

    • Ross200 says:

       I do not know whether there was retaliation or not, but he was probably doomed. The MSPB Office that handled his appeal has a great many right wing, very pro-management MSPB Judges. If his case was heard by a New York MSPB Judge, at the very least the penalty would have been mitigated to a 30 day suspension or less.  He might have prevailed on the Whistlerblower Case. Geography matters in these cases.

  4. Management Attorney says:

    Three Justice Department attorneys vs. a pro se (presumably non-attorney) petitioner.  We knew where that one was going. 

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