Richard R. Renner, Kalijarvi, Chuzi, Newman & Fitch, P.C.
As we earlier noted in Part 1 and Part 2, after a long pause due to a lack of a quorum, the Merit Systems Protection Board has begun issuing decisions, and many of them concern whistleblowers. On April 26, 2022, the Board issued a precedential decision in Wilson v. Department of Veterans Affairs, 2022 MSPB 7. Arnold Wilson was a supervisor in charge of sterilizing equipment at the VA’s Tennessee Valley Healthcare System in Nashville, Tennessee; he was demoted in December 2017 for conduct related to his management of the sterilizing equipment.
In June 2017, Congress created a special procedure under which the VA may take adverse actions against its employees. Under the new Act, employees who are subjected to an adverse action can appeal to the MSPB, but instead of having 30 days to appeal as do other civil service employees, VA employees must appeal to the Board within 10 days. Mr. Wilson also believed that his demotion constituted discrimination.
The first issue in the case was whether Mr. Wilson’s appeal to the Board was timely. When he was removed, Wilson already had a pending EEO complaint, and he added his removal as an issue in the complaint. The Agency argued that Mr. Wilson’s appeal was untimely because he didn’t bring his claim to the Board within the 10-day time limit. The Board held that the new Act did not change the procedure for “mixed cases” at the VA, so when he was demoted he had the option of...
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