Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—Fed. Cir.: VA whistleblower properly removed for separately creating hostile environment, (May 8, 2026)

By Jason Albright, J.D.

Several employees alleged that he had made inappropriate comments, engaged in harassment, and created a hostile work environment.

The Merit Systems Protection Board did not err in sustaining the removal of a Department of Veterans Affairs (VA) whistleblower who an Administrative Investigation Board found separately created a hostile work environment, the Federal Circuit held. Applying Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir. 1999), the appeals court found that, although he engaged in protected activity by filing two internal administrative appeals following discipline by an agency director whose personnel decisions he had criticized, substantial evidence supported the MSPB’s finding that the VA clearly and convincingly proved it would have removed him independent of his protected disclosures (Oliva v. Department of Veterans Affairs, No. 2023-2331 (Fed. Cir. May 7, 2026)).

VA manager. On September 23, 2012, the plaintiff was appointed as a program manager with the VA Health Resource Center (HRC) and was based in the VA’s Waco, Texas office. In October 2014, the HRC director reassigned him to serve as an Associate Director for Contact Management. In this role, he oversaw staff members in both Waco, Texas, and Topeka, Kansas.

Criticisms of director. On December 30, 2014, however, the plaintiff emailed the director and a deputy director, contending that the director pre-selected a Waco employee for a promotion. In December 2014, he also challenged the process that the director had used to solicit and select staff for quality step increases.

Reprimanded. Following his December 2014 criticisms of the director, the VA reprimanded him on January 9, 2015, charging him with “Inappropriate Conduct.”

IRA appeals. Subsequently, he filed a whistleblower complaint with the Office of Special Counsel (OSC), exhausted his administrative remedies before the OSC, and filed two individual right of action (IRA) appeals.

Allegations against him. However, several employees alleged that the plaintiff had made inappropriate comments, engaged in harassment, and created a hostile work environment.

AIB investigation. The VA then appointed an official to chair the Administrative Investigation Board (AIB) investigation into him. The AIB stated that there was “little doubt that there were lapses in professionalism which a reasonable person would feel contributed to a hostile work environment.”

Removal. Upon receiving the AIB’s findings, the acting director of the HRC proposed the employee’s removal based on a charge of inappropriate conduct. The deciding official, after receiving a five-hour oral response from him, sustained the charge and removed him from his job.

AJ’s decision. On August 18, 2017, an administrative judge (AJ) affirmed the employee’s removal. The AJ sustained the VA’s charge of inappropriate conduct, determining that the VA had proven its charge and the underlying specifications by a preponderance of the evidence. Regarding the employee’s first affirmative defense of whistleblower retaliation, the AJ determined that he “engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A)(i) because [his] prior IRA appeals sought to remedy a violation of 5 U.S.C. § 2302(b)(8).”

However, the AJ determined that the VA proved “by clear and convincing evidence that it had strong evidence to support the removal action.” The AJ concluded that the employee failed to prove that the VA committed harmful procedural error and that removal “was within the tolerable limits of reasonableness for the proven charge.”

MSPB’s decision. He petitioned the Merit Systems Protection Board (MSPB) for review of the AJ’s initial decision, and the MSPB denied his petition for review and affirmed the AJ’s initial decision. The Board “discern[ed] no basis for disturbing the administrative judge’s well-reasoned findings regarding the charge or [[the former manager’s]] affirmative defenses of discrimination and equal employment opportunity” reprisal. The MSPB also agreed with the AJ that the employee failed to establish his affirmative defenses of whistleblower reprisal and harmful error.

Petition for review. The employee then timely petitioned the Federal Circuit for review.

Carr and government’s rebuttal. Affirming, the appeals court first observed that, in evaluating whether the government has successfully rebutted an employee’s prima facie case, the court looks to the three factors set forth in Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), specifically, “[T]he strength of the agency’s evidence in support of its personnel action; the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated.”

The appeals court considers the record as a whole and balances the Carr factors to determine whether substantial evidence supports the Board’s finding that the agency clearly and convincingly proved it would have removed the employee independent of his protected disclosures.

Agency’s evidence. The Federal Circuit found that substantial evidence supported the Board’s analysis of the Carr factors. The AJ, the appeals court observed, “walked through extensive testimony regarding inappropriate conduct, finding that each of ten specifications was supported based largely on credibility determinations that are virtually unreviewable on appeal,” and the former manager did not contest that substantial evidence supported the AJ’s decision.

Retaliatory motive. Substantial evidence also supported the Board’s conclusion that Carr factor two favored the government. The second Carr factor is “the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision,” and here, the AJ recognized that the deciding official and the proposing official credibly testified that they were unaware of the employee’s prior “whistleblowing activity” and thus could not have been motivated to retaliate based on it.

The AJ recognized that the director the employee had criticized had a motive to retaliate against him but concluded that once the acting director who proposed his removal was assigned to his case, the director was no longer involved in the action against him. Nor, according to the AJ, did the director exert any control over any of the other involved agency officials with respect to the action against the employee.

Comparator evidence. Finally, with respect to the third Carr factor, the appeals court observed that the Board considers “any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated.” And here, though the government made no effort to show that the employee’s treatment was comparable to that of similarly situated employees who are not whistleblowers, “the absence of any evidence relating to Carr factor three can effectively remove that factor from the analysis.” And that was the case here. The AJ determined that there was no such comparator evidence.

Considering the record as a whole and balancing the Carr factors, the Federal Circuit thus found that substantial evidence supported the Board’s finding that the VA clearly and convincingly proved it would have removed the employee independent of his protected disclosures. The order of the MSPB was affirmed.

The case is No. 2023-2331.

Judge: Cunningham, T.

Attorneys: Jad H. Khazem (Covington & Burling) for Steven Oliva. Douglas Glenn Edelschick, U.S. Department of Justice, for Department of Veterans Affairs.

Cases: PublicEmployees Whistleblowers Retaliation Discharge AgencyNews