Standards that Actually Measure Performance – A Look at Whistleblower Protection

By Barbara Haga, February 19, 2020

Before I talk about requirements related to whistleblower protection and performance plans, I need to talk about the reason behind the Congress’ action in the Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017. The events leading to the law’s passage are a tragedy, and I don’t think anyone could suggest there shouldn’t have been action to deal with the reprisal that took place. However, agencies would be much better off with a different approach than incorporating it in performance plans.

Dr. Chris Kirkpatrick

Dr. Kirkpatrick was a 38-year old clinical psychologist at the Tomah Veterans Affairs Medical Center in Wisconsin.  According to his obituary, Dr. Kirkpatrick died on July 14, 2009. In a detailed story published by USA Today on April 12, 2015, details are filled in regarding Dr. Kirkpatrick’s employment.

Dr. Kirkpatrick completed his doctorate in clinical psychology in August 2008 and was picked up on two-year appointment a month later. This was a conditional position that could have become permanent if he passed the necessary exams and obtained his license.  Prior to his appointment, Kirkpatrick completed an internship at a VA facility in Chicago where he had worked with patients with PTSD and other conditions.

According to USA Today,  an AFGE rep was present for the meetings with management we are about to discuss. Kirkpatrick received a reprimand in early 2009.  He had raised in a providers’ meeting that his patients were too heavily medicated for them to be properly treated. A physician’s assistant, who was in the meeting and had prescribed some of that medication, reported this to the hospital chief of staff. The reprimand said Dr. Kirkpatrick should not further criticize the PA, should focus on his own work, and should not comment on the use of medications as that was not part of his practice.

Three months later, Dr. Kirkpatrick reported that a veteran had threatened him and his dog. Although a treatment team recommended that the veteran be discharged, that didn’t occur. Kirkpatrick missed two days of work thereafter.  On the third day, he returned to duty. He was fired that morning. The charges included taking leave on Fridays and Mondays, improperly recording a 90-minute absence, and two other minor issues.

After receiving the termination notice, Dr. Kirkpatrick asked the union representative to get a support system so that no one else would have to go through what he did. He went home, and shot himself in the head, and died.

Legislation

Sen. Ron Johnson introduced a bill intended to prevent such situations in the future in March 2017. It easily moved through Congress and was signed on Oct. 26, 2017.

A summary about the legislation posted on govtrack provides further information about the situation at the Tomah Medical Center:

A VA investigation — triggered earlier this year by the revelation that a veteran died at Tomah last August from “mixed drug toxicity” — found Kirkpatrick’s concerns had been warranted. Tomah veterans were 2½ times more likely to get high doses of opiates than the national average. Further investigations found retaliation against whistleblowers has become a major problem at VA facilities across the country. The U.S. Office of Special Counsel is investigating 110 retaliation claims from whistleblowers in 38 states and the District of Columbia.

The bill attempts to stop whistleblower retaliation in several ways; the govtrack summary includes this description:

The bill provides enhanced protections and expedites investigations of instances in which probationary federal employees are fired for whistleblowing; enacts reforms to ensure that managers who retaliate against whistleblowers are held accountable; provides the Office of Special Counsel with adequate access to information from federal agencies to allow for complete investigations and better protect whistleblowers; ensures that all federal employees are informed of their rights as whistleblowers and provides training to managers on protections; and establishes measures to hold VA employees that improperly access the medical records of their fellow VA employees accountable.

The Kirkpatrick Act was included in the NDAA for FY 2018.  It amends provisions in both Chapters 43 and 75.

What’s Wrong?

The change to 5 USC 4302(b)(2) requires agencies to set performance standards that require supervisors to:

• Respond constructively when employees make disclosures covered under either subparagraph (A) or (B) of 5 USC 2302(b)(8),
• Take responsible actions to resolve such disclosures, and
• Foster an environment in which employees feel comfortable making such disclosures to supervisory employees or appropriate authorities.

The suggestion that this should be handled under performance to me shows a lack of understanding of the process.  By the time the superiors of the offending supervisor find out that a supervisor engaged in such behavior, it is likely well after the fact. If you were taking the position that this was unacceptable performance and proceeding under Chapter 43, you would have to do a demonstration period (DP) no matter how long it had been since the act of reprisal. If the supervisor didn’t reprise again during the DP or within one year of the beginning of the DP, there’s no formal performance action.

But let’s look at a more basic issue: What are demonstration periods supposed to be for? To provide assistance on performance to ensure that an employee can come out of the period with the skills to perform successfully. Do you think that those who take reprisal action need to be taught that what they did was wrong? Shouldn’t she know that taking disciplinary action against someone who has pointed out wrongdoing is not tolerated and the manager acts at her peril when she does it?  This is similar to the matter of protecting classified material that I talked about last month; it is a rule that must be followed — and following it is a condition of staying in the job. In this case, reprisal is a prohibited personnel practice that is already illegal.

Another concern is how will a senior manager ever be able to assess this? If there are no disclosures, then it doesn’t apply. If the whistleblower never complains to higher management, they will never know that the manager didn’t respond constructively or take a responsible action.  And how does a senior manager assess whether employees are “comfortable” in making disclosures?

What happened in Dr. Kirkpatrick’s situation is horrible, but the tools to take appropriate action to stop this were already there.  Adding this to appraisals is just form over substance.