Burden of proof

A recent decision by the Fifth Circuit Court of Appeals represents a resounding defeat for employers who retaliate against whistle-blowers. The case in point involved Sidna Gee, an employee at the Department of Veterans Affairs.

Gee was a staff pharmacist at the VA Medical Center in Waco, Texas. When Gee's supervisor, Dr. John Bryan, passed her two inappropriate notes that expressed romantic overtures, she reported the problem to the director of the medical center, Wallace Hopkins. Hopkins removed Gee from Bryan's authority and placed her under his own direct supervision. In addition, Hopkins directed Bryan to take sexual harassment training and write Gee an apology note. Gee accepted the apology and expressed satisfaction with the outcome.

About two years later, Hopkins called a meeting to discuss the possibility of moving Gee's position to another division. The attendees included Hopkins, Bryan and three other senior staffers including Lee Gibbs and Dr. Gary Melvin. At the meeting, Melvin expressed support for Gee, but Bryan complained about her inability to get along with others. Hopkins stated his concerns about her liberal use of sick leave.

Shortly thereafter, Hopkins directed Gibbs to prepare a job description for a new position, which was announced May 24, 1995. Debbie Boyd was selected over Gee for the position. Gibbs explained that although Gee had proficient technical skills, he was concerned about her ability to work effectively with others.

Gee subsequently filed a complaint alleging that VA officials retaliated against her when they refused to hire her based on negative comments made by her former boss. When an administrative law judge decided against Gee, she filed suit with the U. S. District Court. The district court granted the VA's motion for summary judgment, holding that Gee had failed to establish her case. Gee appealed to the Fifth Circuit Court of Appeals.

The circuit court said that if Gee were able to establish that her whistle-blowing activity was connected to the decision not to hire her, the burden of proof would then shift to the VA.

The circuit court said that this case hinged on whether Gee could demonstrate that others had influence or leverage over the official decision-maker. The VA did not dispute that Bryan and Hopkins made comments critical of Gee. Furthermore, Melvin testified that at the end of the meeting, it was his impression that the decision regarding Gee was already made. The circuit concluded that Gee had shown that there was a connection between her prior whistle-blowing and her not being hired.

Thus, the circuit court remanded the case back to the district court for further action. In this case, the system worked as intended, and the good guys won.

Zall is a retired federal employee who since 1987 has written the Bureaucratus column for Federal Computer Week. He can be reached at [email protected]


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