Special Counsel ex rel. Kelly Hale v. Department of Veterans Affairs
Background
- Dr. Kelly Hale, a GS-15 staff dentist at the VA Montana Health Care System’s Billings Community Based Outpatient Clinic (BCBOC), raised safety and policy concerns about use of paper referral forms instead of the VA Computerized Patient Record System (CPRS) and other unsafe practices.
- Dr. Hale disclosed these concerns to the Office of Special Counsel (OSC) on December 9, 2015; OSC referred the matters to VA, and the Office of Medical Inspection (OMI) found violations creating a substantial and specific danger to public health and recommended stopping paper consult forms and disciplinary review.
- After the OMI report, the Chief of Dental Services resigned; Dr. Hale later identified himself as the OSC whistleblower to the Acting Chief of Staff.
- The Acting Chief of Staff chartered an Administrative Investigative Board (AIB) that sustained several allegations against Hale; on July 5, 2017 the Acting Chief of Staff proposed Hale’s removal for abuse of patients, disrespectful conduct, and endangering safety.
- OSC sought a 45-day stay of the proposed removal under 5 U.S.C. § 1214(b)(1)(A), alleging the proposal was retaliatory in violation of 5 U.S.C. § 2302(b)(8) and § 2302(b)(9)(C).
- The Board granted the 45-day stay (Oct 5–Nov 18, 2017), finding reasonable grounds to believe the proposed removal was linked to protected disclosures and cooperation with OSC.
Issues
| Issue | Plaintiff's Argument (OSC / Hale) | Defendant's Argument (VA) | Held |
|---|---|---|---|
| Whether Dr. Hale made protected disclosures under § 2302(b)(8) | Hale reasonably believed the CPRS failures and other practices posed a substantial and specific danger and violated law/regulation | Agency implied the misconduct allegations justified adverse action unrelated to disclosures | Board: Hale’s disclosures were protected — he reasonably believed they evidenced safety risks and regulatory violations |
| Whether officials had knowledge and whether disclosure was a contributing factor | OSC: Proposing official (Acting Chief of Staff) had actual knowledge (Hale identified himself) and timing supports contributing-factor inference | Agency: Adverse action based on AIB findings and misconduct, not retaliation | Board: Knowledge/timing test met — proximity and identified knowledge create reasonable grounds that disclosure contributed to proposal |
| Whether proposed removal qualifies as a "personnel action" | OSC: Proposal to remove is a personnel action under § 2302(a)(2)(A) and chapter 75 | Agency: N/A (agency treated as personnel action but justified by charges) | Board: Proposal is a threatened personnel action triggering protection under § 1214(b) |
| Appropriateness of a 45‑day stay under § 1214(b) | OSC: Initial stay warranted to preserve status quo while OSC investigates | Agency: Informal short stay already given and declined further extension (argues investigation complete enough to proceed) | Board: Grant stay — OSC’s request falls within range of rationality and facts viewed favorably to OSC; 45‑day stay ordered |
Key Cases Cited
- Special Counsel ex rel. Aran v. Department of Homeland Security, 115 M.S.P.R. 6 (MSPB 2010) (standard for OSC stay requests and reasonable‑grounds review)
- Mastrullo v. Department of Labor, 123 M.S.P.R. 110 (MSPB 2015) (knowledge/timing test for contributing‑factor inference)
- Carney v. Department of Veterans Affairs, 121 M.S.P.R. 446 (MSPB 2014) (timing as evidence of retaliation under contributing‑factor analysis)