Special Counsel Argues Against VA’s Bid for More Proof from Whistleblowers

Third amicus brief before MSPB judge hinges on burden for everyday employees.

Disputing a judge’s interpretation of the 2012 Whistleblower Protection Enhancement Act, the Office of Special Counsel on Wednesday weighed in with its third amicus brief on a case involving the Veterans Affairs Department’s firing of an employee who reported wasteful practices.

In Anthony Salazar v. Department of Veterans Affairs, the counsel argued before a Merit Systems Protection Board judge that a Los-Angeles-based motor vehicle operator supervisor should not face the elevated burden of proof in demonstrating retaliation that is required of the relatively small group of employees whose normal work involves reporting wrongdoing. The independent governmentwide investigative agency said the judge’s earlier rulings misread the intentions of Congress in the 2012 act. “OSC has a substantial interest in a legal issue presented by this case,” it wrote.

Anthony Salazar, working in the VA’s Greater Los Angeles Healthcare System’s engineering service, in 2013 reported unaccounted-for vehicles and keys, lax recordkeeping, delinquent maintenance, and irregular purchases with fleet cards, according to an OSC summary.

Salazar described in an email to his supervisor “how 30 of the 88 agency vehicles were unaccounted for, explained how 10 fleet cards were suspected of fraudulent purchases, and pressed the urgent need for the VA to get the situation under control,” the brief said.

After investigating, the VA concluded that poor management contributed to the theft of VA vehicles, and, as a result, one of Mr. Salazar’s managers received a letter of reprimand. Salazar was then denied his request for team training. “Afterwards, that manager changed Mr. Salazar’s performance standards and later recommended his termination,” OSC said. In 2015, he was fired.

After Salazar filed a whistleblower retaliation complaint with the MSPB, “the administrative judge determined that a section of the WPEA placing a higher evidentiary burden on employees who report wrongdoing during their normal course of duties applied in Mr. Salazar’s case and that he did not meet this burden,” the brief said. But that higher burden should apply not to most employees who report wrongdoing—only to investigators and auditors, OSC argued: “It should not apply to employees such as Mr. Salazar, who only had a general obligation to report wrongdoing as all federal employees do.”

OSC maintained that the judge’s earlier ruling “imposed an unduly onerous burden on Mr. Salazar.” It offered an alternative reading of the act’s language—called “contributing factor-plus.” That approach “effectively balances the WPEA’s goal of strengthening whistleblower protections with an agency’s legitimate need to manage and evaluate a certain category of federal employees whose jobs regularly require investigating and reporting wrongdoing.”

VA-related cases make up the largest share of the OSC’s whistleblower retaliation complaints in recent years.