Background
Kathyo Tokie Sanicola worked as a Supply Technician for the Department of Veterans Affairs during a two-year probationary period. She drove a government-issued vehicle equipped with telematics technology that monitored her speed. In 2023, the agency terminated her employment based on four speeding incidents reported by the telematics system. Sanicola appealed to the Merit Systems Protection Board, alleging the termination was retaliation for making protected disclosures about workplace conduct. An administrative judge found she made two protected disclosures but ruled that the agency proved by clear and convincing evidence it would have terminated her anyway due to the speeding violations. The Board affirmed this decision, and Sanicola petitioned the Federal Circuit for review.
The court’s reasoning
The Federal Circuit applied the standard of review under the Civil Service Reform Act, which permits setting aside a Board decision only if it is arbitrary, capricious, an abuse of discretion, not in accordance with law, unsupported by substantial evidence, or obtained without required procedures. The court found that the Board’s factual findings were supported by substantial evidence. Specifically, the court rejected Sanicola’s argument that the Board erred by relying on telematics data rather than state driving records to establish speeding violations. The court also addressed her claim that the agency’s directive relied on a revoked executive order, concluding that the revoked order pertained to clean energy requirements and did not limit the agency’s use of telematics data to monitor driving behavior. The court noted that Sanicola failed to show that the Board’s reliance on the directive was arbitrary or capricious.
What it means going forward
The decision reinforces that federal agencies may terminate probationary employees for documented policy violations, such as speeding, even when the employee alleges whistleblower retaliation, provided the agency meets the clear and convincing evidence standard that the termination would have occurred regardless of the protected activity.