The U.S. Office of Special
Counsel (OSC) has filed an amicus
curiae (friend of the court) brief with the Merit
Systems Protection Board (Board), arguing for the removal of improper evidentiary
barriers for federal employees who bring whistleblower retaliation claims.
In
Salazar v. U.S. Department of Veterans Affairs, Anthony Salazar, a motor
vehicle operator at the U.S. Department of Veterans Affairs (VA), sought relief
for financial losses he suffered after he filed a complaint with OSC alleging
whistleblower retaliation. OSC found reasonable grounds to conclude that Mr.
Salazar’s removal from federal service was retaliatory and secured a temporary
stay of that action. As part of the stay, the VA reinstated Mr. Salazar and
coordinated with the Defense Finance Accounting Service (DFAS) to provide Mr.
Salazar with back pay. However, due to errors by the VA and DFAS, Mr. Salazar
did not receive his full compensation.
In
analyzing the case, the Board administrative judge held that Mr. Salazar could
not recover his lost wages because he failed to show that the DFAS officials
had knowledge of his protected whistleblowing activity and therefore he could
not prove a violation of the Whistleblower Protection Act (WPA). As a result,
Mr. Salazar’s claim was dismissed without considering the clear timeline of
events leading from his OSC complaint to his lost wages.
In
its amicus curiae brief, OSC argues that the administrative judge erred
by ignoring record evidence of causation and requiring proof of an agency
official’s knowledge of a whistleblower’s protected activity. Under the WPA, a
whistleblower meets the relatively modest standard of causation by showing that
his protected activity played a role in the personnel action at issue. In such
instances, the burden of proof shifts to the agency. This decision not only
disregards the plain text and overarching purpose of the statute to provide
broad relief to whistleblowers, but can also lead to unjust results. OSC urges the Board to reverse the administrative
judge’s decision so that federal employees—like Mr. Salazar—can feel confident
that their properly pled claims of retaliation will not be prematurely
dismissed.
OSC
earlier filed an amicus
curiae brief on Mr. Salazar’s behalf in 2016. That case is still pending at the Board.
***