Janice E. Whittaker v. Department of Veterans Affairs
Background
- Appellant, a Clinical Dietetic Technician, faced removal for providing inaccurate information (claiming a teaching schedule at Langston University) and patient chart errors; agency initially proposed removal but entered a 3-year Last‑Chance Agreement (LCA) on July 29, 2014 that held removal in abeyance if appellant did not commit further offenses; the LCA waived Board appeal rights if removal was reinstated.
- The agency reinstated the removal effective September 29, 2014, citing misconduct under its table of penalties as “Careless or Negligent Workmanship Resulting in Waste or Delay.”
- Appellant appealed to the Board, arguing she complied with the LCA, that her errors did not harm patients and were permitted copy‑and‑paste entries, that the agency failed to give notice before reinstating removal, and that the removal did not promote efficiency.
- The administrative judge held a hearing, credited the supervisor’s testimony that appellant’s patient assessments contained numerous and potentially harmful errors, and found appellant failed to show compliance with the LCA or that the agency breached it or acted in bad faith.
- The AJ found appellant voluntarily waived appeal rights in the LCA and dismissed for lack of Board jurisdiction; the Board denied review and affirmed the initial decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board has jurisdiction despite an LCA waiver | Whittaker: she complied with the LCA and thus waiver should not bar review | VA: LCA contains a valid waiver; reinstatement was proper | Held: No jurisdiction—appellant waived appeal rights and did not show grounds to avoid enforcement of the waiver |
| Whether appellant complied with the LCA (i.e., committed disqualifying misconduct) | Whittaker: errors caused no harm; used approved copy‑and‑paste method | VA: supervisor credibly testified errors existed and copy‑paste was improper for screenings | Held: AJ credibility findings credit supervisor; appellant failed to prove compliance |
| Whether the agency acted in bad faith or materially breached the LCA (notice/opportunity to respond) | Whittaker: agency failed to give notice of basis for reinstatement | VA: appellant had prior notice and opportunity to respond; supervisor met with her and reviewed records | Held: No bad faith or material breach; evidence showed notice and opportunity to respond |
| Whether removal promotes efficiency of the service | Whittaker: removal is disproportionate and not necessary for efficiency | VA: violating an LCA undermines management confidence and efficiency | Held: Board did not reach merits due to lack of jurisdiction; prior precedent supports that LCA violations affect efficiency |
Key Cases Cited
- Willis v. Department of Defense, 105 M.S.P.R. 466 (2007) (LCA waivers of Board appeal rights are enforceable absent specified exceptions)
- Stewart v. U.S. Postal Service, 926 F.2d 1146 (Fed. Cir. 1991) (when compliance with an LCA is disputed, Board must resolve that factual issue before ruling on waiver)
- Covington v. Department of the Army, 85 M.S.P.R. 612 (2000) (establishes grounds to avoid enforcement of LCA appeal waivers)
- Dwight v. Veterans Administration, 7 M.S.P.R. 37 (1981) (mitigation may be appropriate when misconduct is established but did not cause harm)
- Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir. 2002) (deference to credibility findings based on witness demeanor)
- Bahrke v. U.S. Postal Service, 98 M.S.P.R. 513 (2005) (violating an LCA can demonstrate lack of dependability affecting efficiency)