U.S. OFFICE OF SPECIAL COUNSEL WINS CORRECTIVE ACTION IN VETERANS AFFAIRS’ WHISTLEBLOWER CASE

FOR IMMEDIATE RELEASE - 5/21/99
CONTACT: JANE MCFARLAND
(202) 653-7984      

    The U.S. Office of Special Counsel (OSC) today announced that, on April 26, 1999, the Merit Systems Protection Board (MSPB) reversed its Chief Administrative Law Judge’s (CALJ) decision and held that the Office of Inspector General (OIG) of the Department of Veterans Affairs (VA) owed back pay to whistleblower James Steen for the period in which he had received Office of Workers’ Compensation Programs (OWCP) benefits for emotional stress. The emotional stress had been caused by the VA’s retaliatory actions against him. The Board’s ruling granted OSC’s petition for corrective action on Mr. Steen’s behalf, allowing him to be financially “made whole” for years of retaliation.

    In 1992, Mr. Steen, then a special agent with the VA Office of Inspector General’s (OIG) Seattle office, along with his co-workers, blew the whistle on George Strehle, the former Special- Agent-in-Charge of the OIG’s Los Angeles Field Office. During an internal investigation of morale problems on the West Coast, Mr. Steen told a senior OIG investigator about Mr. Strehle’s history of abusive behavior, conduct which violated agency rules. The pattern of abusive behavior described by Mr. Steen included specific incidents of Mr. Strehle’s extreme anger, swearing at subordinates, belittling them and threatening them. 

    Mr. Steen alleged that after he made these disclosures, he suffered from a series of acts of retaliation, including, among other things, a reassignment to New York City and the denial of his request to be reassigned instead to Houston. These actions caused Mr. Steen to suffer severe emotional distress and resulted in a lengthy period of paid leave and OWCP benefits.

    In 1993, OSC filed a corrective action on Mr. Steen’s behalf with the MSPB. After four years of litigation, the MSPB ruled in Mr. Steen’s favor and ordered the VA to pay back pay with interest, and to restore the sick and annual leave used by Mr. Steen because of VA’s retaliation against him. After the VA nonetheless refused to grant Mr. Steen any back pay on the grounds that Mr. Steen had been receiving OWCP benefits and was not medically cleared to return to work, OSC petitioned for enforcement. 

    In its decision, the MSPB reaffirmed its previous order stating that it was “beyond dispute” that back pay was authorized by the Back Pay Act. It also ordered the VA to restore all of the sick and annual leave that Mr. Steen had used because of the VA’s retaliation and to complete all corrective actions within 20 days. The MSPB noted that its decision would not result in unjust enrichment by Mr. Steen because the amount of his back pay would be reduced by the amount of money he had received in OWCP benefits. It noted further that its decision would benefit Mr. Steen’s retirement annuity by enlarging the baseline amount from which his annuity would be calculated. 

    Special Counsel Elaine Kaplan noted that “the Board’s decision reaffirms the important principle that employees who suffer retaliation must be made whole.” She observed that “in most cases, OWCP benefits are provided to individuals, who – through no fault of their employer – are injured on the job. Here, it was no accident that Mr. Steen was on workers’ compensation. He was on OWCP as a result of his employer’s actions.” (Special Counsel v. Department of Veterans Affairs, MSPB Docket Number CB-1214-94-0005-C-1)

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