Background
Steven Oliva was appointed as a Program Manager with the Department of Veterans Affairs Health Resource Center in 2012. In 2014, he raised concerns about promotion processes and staff selection with his supervisors. Following these criticisms, the agency reprimanded him for inappropriate conduct and later initiated removal proceedings based on allegations of harassment and creating a hostile work environment. An Administrative Investigation Board found lapses in professionalism, and an administrative judge sustained the removal charge. Oliva filed appeals with the Office of Special Counsel and the Merit Systems Protection Board, asserting whistleblower retaliation and harmful procedural error. The Board denied his petition for review and affirmed the removal.
The court’s reasoning
The court applied the burden-shifting scheme for whistleblower retaliation claims. The employee must first prove by a preponderance of the evidence that protected activity was a contributing factor to the personnel action. If established, the burden shifts to the agency to show by clear and convincing evidence that it would have taken the same action absent the disclosure. The court evaluated the three Carr factors: the strength of the agency’s evidence, the motive to retaliate, and evidence of similar actions against non-whistleblowers. The court found substantial evidence supported the agency’s case under the first factor, as the administrative judge’s credibility determinations regarding ten specifications of inappropriate conduct were virtually unreviewable. Regarding motive, the deciding officials testified they were unaware of the whistleblowing, and any motive by a prior supervisor was not shown to influence the final decision. The absence of evidence regarding similarly situated employees did not defeat the agency’s case. On the procedural error defense, the court held the Administrative Investigation Board was an investigative body not required to follow strict adjudicative procedures. The employee had ample opportunity to present his case during the oral response and before the Board, and the evidence supported the removal regardless of the investigation’s scope.
What it means going forward
The decision reinforces that federal agencies can sustain removal actions against employees who engage in protected whistleblowing if they can demonstrate by clear and convincing evidence that the personnel action was based on independent, non-retaliatory grounds supported by substantial evidence of misconduct.
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