Background
Anthony Gomez, a veteran employed by the Department of Veterans Affairs, alleged retaliation under the Whistleblower Protection Act after the agency denied his request to convert a temporary position to a permanent one and refused to grant him a higher salary. He claimed protected disclosures regarding a conspiracy to circumvent veterans hiring preferences, a grievance about his compensation, and mismanagement related to the position conversion. The Merit Systems Protection Board denied his claims, finding his disclosures vague and unsupported, and the Federal Circuit affirmed.
The court’s reasoning
The court applied the standard of review for arbitrary, capricious, or unsupported decisions. It held that credibility determinations by the administrative judge were virtually unreviewable and found no error in the judge’s assessment that Gomez’s testimony lacked credibility compared to the agency witnesses. The court also ruled that Gomez’s grievance regarding salary was unrelated to protected whistleblower activity and that his allegations of mismanagement were merely disagreements with discretionary management decisions, lacking the specificity required for a nonfrivolous claim.
What it means going forward
The decision reinforces the high bar for federal employees to prove whistleblower retaliation claims, particularly when relying on credibility determinations that are difficult to overturn on appeal.