DoD Sent a Soldier’s Remains to a Dump. Now It Must Give His Wife a Civilian Job
The new MSPB is taking a wide interpretation of what constitutes whistleblower retaliation.
The Defense Department illegally retaliated against a whistleblower who applied for a civilian job after her husband was killed in action in Iraq and the Air Force disposed of his cremated remains at a landfill in Virginia, an appeals board ruled on Wednesday.
Garilynn Smith notified the media and a congressman after she learned of the mistreatment of her husband’s remains, who was a U.S. Army sergeant and explosive ordnance disposal technician, five years after his 2006 death. Smith worked as an Army civilian in New Jersey at the time. She got a new job with the Navy, but quickly decided to apply for an executive assistant opening at her old office. After the Army selected someone else for the position, Smith filed a whistleblower complaint with the Office of Special Counsel.
The case made its way to the Merit Systems Protection Board, where an administrative judge ruled in 2017 the Army had retaliated against Smith for disclosing what happened to her husband and demanded she be offered the position and back pay. The Army appealed the decision to MSPB’s central board, where it languished for five years due to the absence of a quorum.
In one of the first precedential rulings of the newly reconstituted board, the independent, quasi-judicial agency agreed the Army had engaged in unlawful retaliation. The board signaled in its decision that it will continue recent precedent of interpreting a "broader view of retaliatory motive” in whistleblower cases, a welcome sign to advocates and observers.
Smith was successful in proving the hiring officials involved in her application knew about her disclosures prior to making their decision to choose another candidate, the board said, shifting the burden to the agency to then prove the whistleblowing did not play a factor in its selection. While the Army argued Smith had been a poor performer who failed to work well with others, the board found she received only good reviews and perfect scores on “working relationships and communications.” The agency said Smith had made too many telework requests, but the board countered she only did so because she had a maternity-related illness and wanted to keep working.
Smith’s attorneys demonstrated the widespread media attention her story had become a “source of anxiety” for Defense Department personnel, the board said, noting it was taking a broad interpretation of what constitutes reprisal. The hiring officials were not directly implicated in Smith’s disclosures, but could have retaliated out of concern for the well-being of their agency.
“In this matter, although none of the agency officials involved in the decision not to select the appellant was directly implicated in the mishandling of service members’ remains, the misconduct the appellant disclosed was egregious and her disclosures generated a significant amount of negative publicity for the DOD,” the board said. “Given these circumstances, the appellant’s disclosures reflected poorly on DOD officials as representatives of the general institutional interests of the DOD, which is sufficient to establish a retaliatory motive.”
While MSPB has previously leaned on such an interpretation, Ricardo Pitts-Wiley, a partner at the Federal Practice Group, said it was a welcome sign to see it continue to do so given its current makeup. The board currently has no chairman and just two members, Tristan Leavitt, a Republican, and Raymond Limon, a Democrat.
“It actually sends a signal that the board is going to continue on this path of a broader view of retaliatory motive,” Pitts-Wiley said, adding the board wanted to make clear it is back and open for business. “It also sends a signal to MSPB practitioners that the board is an opportunity. It is an available resource to be able to litigate these matters.”
In deciding in favor of Smith, the board ordered the Army to appoint her to the position she applied to back in 2012 and to award her back pay for the time she missed. Graig Corveleyn, Smith’s attorney, told Government Executive he was unsure if his client would go back to the office she applied to nearly 10 years ago. She briefly accepted the role after the administrative judge’s initial decision in 2017 and received a few months of back pay at that time. She is still owed about five years of lost wages, however, Corveleyn said.
While Smith felt “failed by the system” that took five years to provide resolution, Corveleyn said she was pleased with the outcome for her personally and that an oversight body called what happened to her husband “reprehensible.” The Washington Post found in 2011 the remains of nearly 300 troops wound up in the same Virginia landfill as Scott Smith, Lynn’s husband.
“What Lynn said to me throughout this process is, ‘I would never, ever want anyone to have to go through this ever again,’” Corveleyn said.
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