Department of Veterans Affairs leadership insists that if it could just fire employees more easily, its performance would improve. No data suggests this is true, and as job security wanes, morale is waning with it.
As an attorney who represents federal employee whistleblowers facing retaliation, victims of discrimination and those charged with poor performance or misconduct, I deal with the VA frequently, and I doubt I’m unique among those of us who do this sort of work. I’ve also recently had first-hand experience from the other side, as my father-in-law, a Vietnam Veteran, passed away while at a VA Medical Center. His care was disjointed, with the medical team seemingly missing what was killing him, until over a month later when one doctor said he had another 6 to 8 months left, while another said he had hours, which was far closer to the truth. Sadly, my father-in-law actually seemed to receive better care and more attention than other patients because he, unlike many, had family by his side and calling doctors for answers. We never once, for example, saw a doctor or nurse visit his roommate.
Congress and the administration allege they are up in arms about the VA’s failures, and more so than any other executive agency, they have been the target of legislation and policy changes including:
The VA Accountability and Whistleblower Protection Act, signed into law by President Trump on June 23, 2017, was lauded as evidence of Congress and the administration’s devotion to fixing the VA.
The inappropriately named law “created” an already existing Office of Accountability to investigate whistleblower reprisal. Why any whistleblower would not opt to go to a neutral outside agency like the U.S. Special Counsel is beyond me, but this also is the only way the law even tries to further protect whistleblowers.
The sections of the law changing the status quo are posed to harm whistleblowers by chipping away at civil service protections, for example by lowering the VA’s burden of proof in misconduct cases, doing away with Performance Improvement Plans, and cutting the employee’s time to appeal an adverse action to from 30 to 10 days, under this ill-conceived notion that if employees have less rights, great leaders will rise up or management will do its job.
Secretary Shulkin’s $5,000 Limit on Settlement
In early July, Secretary David Shulkin announced that any settlement with an employee for over $5,000 will require the approval of the undersecretary, assistant secretary or equivalent senior-level official. This has grinded settlements to a halt.
As is, federal agencies found liable for discrimination or whistleblower retaliation get off easier than private companies found liable for the same, as compensatory damages are limited and there are no punitive damages available.
Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017
Even less likely than the federal government paying damages, is it disciplining responsible officials. In the last week of October, President Trump signed the “Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017” in honor of a whistleblower who committed suicide after the VA terminated him in retaliation. The law requires agencies to propose at least a three-day suspension for the first infraction against a whistleblower, and for the second infraction, an agency must propose removing the supervisor.
Of course, what action is ultimately taken depends on the deciding official (in other words, regardless of what action is proposed, the matter may be swept under the rug with no action). Over and over again, federal supervisors who violate these protections are let off the hook, while the victims of their illegal actions see their lives ruined. It should not take legislation for leadership to do the right thing, and the notion that the VA needs new laws to fire its employees, or that the process has to take a long time, is simply false.
Earlier this fall, outlets reported that Shulkin fired Brian Hawkins, then director of the Washington, DC VA Medical Center, for the second time, this most recent time “using the authorities Congress afforded it and President Trump signed into law.” Neither statement is true – Hawkins was not previously fired, and Shulkin did not need a new law to give him the authority to do so.
Publically available documents show that the following actually occurred:
- On March 13, 2017, Hawkins informed the VA’s inspector general of concerns.
- On April 12, 2017, OIG issued a heartbreaking report identifying deficiencies at the Washington VA Medical Center that placed patients at risk.
- The next day, despite that Shulkin had every right to propose removal under then existing law, instead the VA reassigned Hawkins.
- Two months later, the VA suggested to Hawkins that he resign, which he refused to do. Finally, on June 9, 2017 (again, before the new law was signed), the VA proposed removal.
Again, the VA only acted when it was backed into a corner.
Earlier this spring, misinformation provided by the VA prompted Dr. James Andrew, a neurosurgeon who blew the whistle on the VA, to settle his claim. The Washington Examiner reported:
But the VA also insisted that Andrews waive his right to sue the VA, or he would risk losing his pension. On Thursday, faced with losing 25 years of benefits, Andrews conceded, but he’s not happy about it.
“I feel sick to my stomach because I let them basically erode me, and I got railroaded into a negotiation that I never would have done,” he said. “I feel sick about it. You give up your morality.”
I frequently advise federal employees terrified about losing their pensions. 5 U.S.C § 8312 provides that only federal employees convicted of crimes like espionage or treason will forfeit their pensions (which is similar to the private sector where the Employee Retirement Income Security Act provides that once vested, an employee will receive a pension). Would the result for Dr. Andrews be the same today with the purported new protections in place? Probably, and this also means that the VA officials who retaliated against Dr. Andrews would still face no accountability, as settlement would preclude a determination on his retaliation claims.
The bottom line is that firing employees won’t solve the VA’s problems, and making it easier for the VA to fire employees hasn’t produced any results. Sunshine remains the best disinfectant.
Debra D’Agostino is a founding partner of The Federal Practice Group. She has more than 15 years of experience representing federal employees in matters before the EEOC, MSPB, OSC and the U.S. Court of Appeals for the Federal and D.C. Circuits.