Whistleblowing Did Not Protect VA Nurse from Removal

A VA nurse was removed after he blew the whistle on violation of privacy rules. The MSPB upheld his removal despite him claiming whistleblower status.

The case is Flynn v Department of Veterans Affairs (CAFC No. 2020-1898 (nonprecedential), 12/7/20). Mr. Flynn worked at the VA Wenatchee Community Based Outpatient Clinic in Spokane, Washington. He blew the whistle on an HR specialist who Mr. Flynn claimed had violated privacy rules when giving a presentation. Supposedly confidential information about prior discipline cases, including one involving Mr. Flynn, was discussed “in detail.” (Opinion p. 2)

Some two months later the agency removed Mr. Flynn stemming from an angry confrontation with his supervisor. On appeal to the Merit Systems Protection Board (MSPB), the administrative judge found that while Flynn had established his bona fides as a whistleblower, the agency proved that Mr. Flynn would have been terminated, nevertheless. He would have been fired for his “angry, inappropriate response to a performance evaluation…” and therefore was not entitled to relief. (p. 2)

In a whistleblowing situation, the appellant must make out the case that he did in fact blow the whistle, the agency knew about it, and some adverse action followed. The agency then has to prove it would have taken the same adverse action in spite of the whistleblowing. DVA met its burden.

Flynn took his case to the appeals court. In short, the court has now sustained MSPB’s handling of the appeal and granted Flynn no relief. He remains terminated from employment.

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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