You Snooze, You Lose

A probationary employee claimed he was a whistleblower and that was why he was terminated by the VA. See how MSPB and the appeals court ruled in his challenge.

Pak v Department of Veterans Affairs (CAFC No. 2020-1845 (nonprecedential) 12/22/20

Mr. Pak was a General Engineer at the Northern Indiana Health Care System with the Department of Veterans Affairs (DVA). He was terminated during probation based on “unacceptable conduct and performance.” (Opinion p. 2)

Pak then filed with the Office of Special Counsel (OSC), claiming his termination was in retaliation for his whistleblowing. He claimed he had made several disclosures as a whistleblower involving improper contracting procedures, including improper pre-selection of a contractor, excessive contractor charges, requiring Pak to “rubber stamp” the contract statement of work and an official service as a contracting officer representative without proper authorization. OSC denied corrective action in response to Pak’s complaint so he filed with the Merit Systems Protection Board (MSPB). (P. 3)

The administrative judge (AJ) found at least one of Mr. Pak’s disclosures was protected and may have contributed to the agency’s decision to terminate Pak during his probationary period. Pak was ordered by the AJ to provide additional details, such as the exact date of the disclosures, who he made them, why he believed them to be true, and why he believed the disclosures contributed to his termination. Mr. Pak never responded to the AJ’s order. He also failed to comply for the AJ’s deadline for pre-hearing submissions, and, finally while Mr. Pak’s counsel was present by phone for the pre-hearing conference, Mr. Pak himself did not call in nor could he be reached by the AJ. The led the AJ to apply sanctions. He allowed Mr. Pak to testify at his hearing, but excluded Pak’s other witnesses as well as planned exhibits. (Pp. 5-6)

Following the hearing, the AJ found that Pak failed to prove whistleblower retaliation. Pak took his case to the federal appeals court where he argued the sanctions imposed unfairly prejudiced him, and the MSPB decision was not supported by substantial evidence. (P. 5)

The appeals court has no sympathy for Pak’s attack on the sanctions imposed by the AJ, “The record here is clear.” (P. 6) Pak was warned by the AJ, told precisely what he needed to do to make his case, and given time to do it. When Pak dropped the ball, the “AJ properly excluded the evidence and witness testimony…due to these failures to comply with the MSPB’s orders.” (P. 6) The court notes that for the first time, in his court appeal, Mr. Pak offered an explanation for his failure to comply with the AJ’s order, claiming he was under pressure due to his termination and his starting of a new job. The court finds his explanation “insufficient.” (P. 7) In short, MSPB did not abuse its discretion when it imposed sanctions on Mr. Pak.  Additionally, the court found that MSPB’s finding that Pak failed to prove his whistleblowing was based on substantial evidence. 

The court has now upheld MSPB’s decision. Mr. Pak has lost his bid to regain his DVA position.

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.