“Please Sir, I Want Some More”

August 4, 2020 9:32 AM
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Judge tapping his wooden gavel on its wooden base over a scattering of cash depicting a lawsuit for damages/compensation

In Oliva v Department of Veterans Affairs (CAFC No. 2019-1990 (nonprecedential) 6/15/20), a Department of Veterans Affairs (VA) employee asked the appeals court to order the Merit Systems Protection Board (the Board) to order up more in monetary damages for retaliation taken against him by the agency as the result of his whistleblowing activity.

Mr. Oliva was Associate Director of Pharmacy Customer Care at the VA in Waco, Texas when he accused his supervisor of improper employee selection procedures. Oliva sent several emails detailing the wrongdoing, but his supervisor disputed his allegations. The agency issued a letter of reprimand to Oliva for “Inappropriate Conduct.” (Opinion p. 2)

Some two years later, Oliva submitted an individual right of action arguing the agency had retaliated against him for his whistleblowing. He asked for damages for lost relocation incentive pay he would have received if the letter of reprimand was not in his file, as well as damages for emotional harm.

The Board found that the agency had engaged in a prohibited personnel action against Oliva because it saw him as a whistleblower, its perception contributed to issuing the reprimand, and the agency had not shown it would have issued the letter of reprimand absent its perception of him as a whistleblower. Consequently, the Board awarded Mr. Oliva $3,500 in emotional harm damages. However, the Board denied any damages for the loss of incentives that might have been paid for a job transfer to El Paso. (pp. 2-3)

“More, please,” Mr. Oliva essentially argued to the federal appeals court. He maintained that the Board erred by denying his claim for lost relocation incentive pay. His argument was that absent the reprimand in his file, he would have been selected for the El Paso position, and in that event he would have received relocation incentive pay. Since Oliva could not present facts showing a “causal relationship between the issuance of the letter of reprimand and his alleged loss of relocation incentive pay,” the Board rejected this argument. (p. 4)

The appeals court found no error in the Board’s reasoning and conclusions. The loss of relocation incentive pay was not a “foreseeable consequence of the issuance of the letter of reprimand.” The court also declined to order “more” in compensatory damages. Mr. Oliva will have to be content with his $3,500 damage award from the Board. (p. 4)

(Note: the title of this article is a quote from Oliver Twist by Charles Dickens)

© 2020 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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