Almost two years ago, President Trump signed the Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017. Though intended to enhance protections for whistleblowers, the VA's new law made it much easier to fire employees, allowing the VA to justify removing whistleblowers and victims of discrimination for minor or fabricated reasons.
Title 38 employees, like physicians and nurses, are still entitled to removal based on a preponderance of the evidence. Under the preponderance standard, the VA has to show that the employee more likely than not engaged in the behavior they are alleging. This is the same standard that is typically used in civil lawsuits.
However, hybrid employees now face the far lower standard of "substantial evidence" under the updated 38 U.S.C. § 714. Contrary to what the name suggests, the VA needs very little evidence to meet a substantial evidence standard. To prove their case by substantial evidence, the VA needs enough evidence that some reasonable person could potentially agree.
Basically the substantial standard means that, if the reviewing administrative court finds that just one deciding official somewhere in the country could have potentially been convinced by the VA's evidence, then they have to uphold the findings. For hybrid employees, this means that you can expect to lose in any scenario where it is your word versus their's, even if your explanation makes abundantly more sense. Factual arguments only work when the evidence in your favor is overwhelming, but few removals are based on these types of specifications.
It is just as problematic that under § 714, the Merit Systems Protection Board has lost their ability to mitigate clearly excessive penalties. The way most Administrative Judges have interpreted the statute, if there is even minimal evidence that the employee engaged in the alleged conduct, then they may be removed even if the conduct is relatively minor. For example, if a 30-year employee doesn't realize their annual leave request is denied and misses a day for the first time in his or her career, they could be removed based on a single AWOL charge.
Employees do have a few ways to fight back against misleading and excessive proposed removals. Despite the low factual standards, the Agency still has to meet certain Constitutional requirements. Unlike employees in the private sector, federal and state employees are entitled to due process of law. The Agency must give you a meaningful opportunity to respond and cannot rely on information that is outside the evidence file. If the employee can establish any violation of their Fifth Amendment due process rights, the action must be thrown out. If the deciding official goes forward with the unconstitutional removal anyway, the Merit Systems Protection Board has to reverse it, at which point the employee is entitled to reinstatement, back pay, and their reasonable attorney's fees.
In addition to due process, the VA can do a number of things that can be considered harmful error. It is common for the VA to include information about previous disciplines even if those alleged disciplinary actions were undocumented counselings or reprimands that had expired from the employee's file.
Finally, the employee can raise discrimination or whistleblower defenses. In fact, the employee can force a stay on the decision if they raise a prohibited personnel practices complaint to the Office of Special Counsel, or a disclosure to the newly formed VA Office of Accountability and Whistleblower Protection. At particularly problematic VA facilities, we have been able to successfully put proposed removals on hold for well over a year.
Some of these defenses are even more effective when the employee lays the groundwork before receiving a proposed removal. If you feel you are being targeted, it is important to contact an attorney and discuss how to protect yourself from future actions and how to enhance your legal defenses.
Regardless of whether you are a Title 38 or hybrid employee, you should strongly consider calling an attorney and asking whether the proposed removal is open to legal challenges and defenses. If you'd like to consult with an attorney at Solomon, Maharaj & Kasimati regarding your proposed removal or related employment issues, call (813) 497-7650 or email info@smkfirm.com.
-James Solomon