Winning against the Department of Veterans Affairs requires respect for a formidable adversary. The VA is a notorious bad actor, and prevailing against such an adversary requires confronting its notorious record of unlawful treatment of its employees. In addition, clients and their lawyers have to understand the convoluted rules for suing the VA to mount an effective challenge.
The VA is one of the most discriminatory and retaliatory agencies in the federal government.
The Equal Employment Opportunity Commission (EEOC) governs complaints of discrimination against the VA. The EEOC’s most recent statistics show that in 2019, the VA had the highest number of Final Agency Decisions finding discrimination (30) and the highest percentage (4.35%).
The VA leads in unlawful personnel actions
The Merit Systems Protection Board (MSPB) has jurisdiction lasting more than suspensions over 14 days, demotions, and removals of most Title 5 Civil Service employees as well as whistleblower appeals. It has only recently resumed operations after the Trump administration effectively shut it down by not appointing any new members to the board. The result has been a huge backlog of cases. The board has recently rendered a number of decisions favorable to employees. However, in 2017, the last year before the administration shut the MSPB down, the VA came in third in the number of cases tried (132) and second in the number of personnel actions reversed (20). Employees and their lawyers must continually battle the Department to assert their rights and receive fair treatment.
The VA retaliates against whistleblowers
And at the Office of Special Counsel, which handles whistleblower complaints before an appeal the MSPB, the VA led the government not only in complaints (1177) but also in settlements of Prohibited Personnel Act cases (26).
Don’t be naive about the VA’s treacherous history and culture
Employees should not allow the treacherous personnel culture at the VA to catch them off guard. Whistleblower retaliation became so bad at the VA that in 2017, Congress established a special agency unique to the VA to protect whistleblowers. The Office of Accountability and Whistleblower Protection (OAWP). However, in 2019, the New York Times revealed that the VA’s own Office of the Inspector General had discovered that the OAWP was retaliating against VA employees rather than protecting them.
Even the VA cannot lawfully discriminate
All VA employees have the right to challenge discrimination in violation of Title VII of the Civil Rights Act of 1964 for race, color, sex, national origin, and religion, the Rehabilitation Act and Americans with Disabilities Act for disability discrimination and denial of reasonable accommodation, and the Age Discrimination in Employment Act. In addition, the law prohibits the VA from retaliating against employees for complaining about discrimination or otherwise opposing it.
Doctors and nurses should take special care in challenging VA disciplinary actions
The VA does not play by the same rules as the rest of the Civil Service, and it has separate sets of rules for medical providers, especially doctors and nurses appointed under Title 38 of the United States Code, and regular Civil Service employees hired under Title 5. to protect their rights, employees need to guard against the Agency’s exploitation of these rules. Doctors and nurses cannot appeal suspensions or removals at the MSPB unless they are whistleblowers or victims of political discrimination in violation of the Hatch Act (in which case they must first complain to OSC). Instead, the Congress has provided them with two different avenues for challenging adverse personnel actions, depending on their type and severity.
Fight back against reports to the National Practitioner Data Bank
In cases involving “professional care and competence,” (patient care), Doctors and Nurses must appeal any “major adverse action” to a Disciplinary Appeals Board (DAB) pursuant to 38 U.S.C. § 7461 or, in the case of probationary employees, request a “fair hearing” to determine whether the VA file a report to the National Practitioner Data Bank (NPDB) pursuant to VHA Handbook 1100.19. Understanding these appeal procedures can be all that stands between them and a ruinous report to the NPDB. The NPDB is routinely consulted by employers when they consider hiring doctors and nurses, and a bad report can be the career kiss of death. In cases not involving major actions and professional care and competence, medical providers may be able to file a grievance under 38 U.S.C. § 7463.
Title 5 Civil Service employees should not be caught off guard.
As for career Title 5 VA employees and “Hybrid 38” providers (appointed under 38 U.S.C. § 7401(3)), the VA has shortened the time in which they are allowed to contest disciplinary actions pursuant to 38 U.S.C. § 714, which reduces employees’ time to appeal to the MSPB to ten business days and redefined the remedies that the MSPB can provide. Accordingly, employees need good advice on the benefits and pitfalls of contesting VA discipline.
Probationary, part-time, and term appointments have an even tougher fight
Attorneys at the Day Law Practice can help!
In sum, VA employees need a clear understanding of the Agency’s special rules and good advice on how to navigate them. At the Day Law Practice, we have spent more than two decade suing the VA, and although we cannot guarantee results, we have had some notable successes and taken cases all the way to the United States Court of Appeals. To quote the classic television series, “if you have a problem, if no one else can help, and if you can find them,” maybe you can hire the Day Team.