Is 16 Years Enough?

A VA doctor, when reassigned from his preferred compressed work schedule, challenged the agency’s action as a violation of a 16-year old settlement agreement.

As recounted in the court’s decision (Sanchez v Department of Veterans Affairs (CAFC No. 2018-2171 (2/10/20)), Dr. Sanchez and the VA entered into a settlement agreement in 2001 following his allegation of whistleblowing reprisal. The agreement indicated Sanchez would be reassigned to the Ponce, Puerto Rico VA Outpatient Clinic from San Juan, his pay would not be reduced, and he would have a four-day compressed work schedule to include his 3-hour commute time. Some 16 years later the agency changed the doctor’s work schedule at the clinic to five days a week, 8 hours a day.

Dr. Sanchez petitioned the MSPB (Merit Systems Protection Board) for enforcement of the 16-year old agreement, insisting the agency could not take him off the compressed four day per week schedule without being in violation. The Board denied enforcement. It concluded that 16 years had been reasonable and that the agreement did not prevent the agency from changing Sanchez’ schedule. (Opinion pp. 2-3)

Before the appeals court Sanchez argued that there was no time limit on the requirement that he work a compressed schedule and that he should continue doing so as long as he remained at the Ponce Clinic. 

The court did not buy the doctor’s argument, pointing out that where there is no set time limit in a contract it is typically effective for a “reasonable time.” (p 4) In this particular situation 16 years is reasonable. The court noted that the doctor had admitted that the transfer was to get him out of the San Juan clinic where he was encountering hostile attitudes toward him by coworkers, the compressed work schedule was done since he was living at the time in San Juan and would have to commute 3 hours  to and from Ponce, and to accommodate this the agency let him take the 3 hours from his scheduled time. Pointing out that it was “unusual” for Sanchez to take his commuting time out of his work schedule, that 16 years was plenty of time to work through the hostilities, and that Sanchez had the burden to prove a breach of the agreement which he did not successfully do, the court concluded that there was no breach of the settlement agreement. (pp. 7-9)

It would seem Doctor Sanchez will now have to report five days a week.

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.