Do As This Former VA Employee Says, Not As He Does

A Veterans Affairs employee, claiming to be a protected whistleblower, was removed for mishandling a radiological substance, the very activity that he had blown the whistle on with regard to others at his facility.

In a recent appeals court case, an employee who was able to establish he had engaged in protected whistleblowing, was not able to overcome the agency’s assertion that it would have fired him anyway given the severity of his offense. (Jimenez v. Department of Veterans Affairs (CAFC No. 2016-1832 (nonprecedential) 11/7/16))

As explained in the court’s opinion, Jimenez was a Nuclear Medicine Technologist at the VA when an incident occurred while he was administering Flourine 18, a radiological substance, to a patient. The liquid escaped and spattered the patient’s arm and clothing. The agency found out when the patient located the facility’s Chief of Nuclear Medicine to complain, indicating that Mr. Jimenez did not do anything to clean the spill, nor did he seem very concerned about it. (p. 2)

The agency investigation determined that there was radioactive material on the patient’s clothing and in the area where it had happened. Further, Jimenez had failed to report the spill up the line or to the safety officer. (p. 2)

About a month later the agency proposed to remove Jimenez for endangering the patient and others and for “failure to observe precautions for containment and contamination of a radioactive material.” (p. 3)

On appeal to the Merit Systems Protection Board, Jimenez claimed he was a protected whistleblower and that the removal was in retaliation. Ironically, his whistleblowing centered on improper handling of nuclear materials and his reports of safety concerns for radiation exposure.(p. 3)

The Board held that his disclosures entitled Jimenez to whistleblower protections, and that disclosures he made prior to the incident leading to his removal had in fact contributed to the removal action. However, the Board went on the conclude that the agency had successfully rebutted Jimenez’s whistleblower defense because it proved that it would have removed him in spite of the protected disclosures given the serious nature of his offense.

Jimenez took his case to the appeals court. For the first time Jimenez argued that the spill he was accused of had in fact never occurred. Noting that Jimenez and his representative had made numerous admissions throughout the administrative proceedings that there had indeed been a spill, the court did not buy this tactic.. In short, the court sustained the Board’s conclusion that the agency had “proved independent causation by clear and convincing evidence” that it would have removed Jimenez notwithstanding his whistleblowing.

Jimenez v. VA (2016-1832)

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.