MEMPHIS, September 2, 2015 – The whistleblower who helped bring an explosive video about negligence at the Memphis VA to light told CDN that not only was he terminated from that hospital as retaliation but that the retaliation continues during his Merit Systems Protection Board (MSPB) process.
Sean Higgins was terminated from the Memphis VA last summer after the hospital determined he was creating a hostile work environment.
His attorney, Joree Brownlow, told CDN the complaint stems from an incident where Higgins complained that an air conditioning system in the area where he worked was not operating property. Higgins also pointed his finger at a colleague during that meeting.
Higgins was first put under investigation in April 2014, five days after he alerted the Joint Commission about dialysis machines not being cleaned properly.
The Memphis VA declined to comment on Higgins’ firing, stating that personnel matters require a Freedom of Information Act (FOIA) request, even though CDN was not requesting documents, but rather was asking whether or not Higgins was being targeted because he is a whistleblower.
After his termination, Higgins filed an appeal with the MSPB; that appeal was first filed in January 2015.
According to MSPB rules, all appeals are supposed to be decided within one-hundred twenty days. Nearly eight months later, Higgins’ appeal remains in limbo.
Higgins blames the judge, Pamela Jackson from the MSPB Atlanta regional office, for the delay.
As one example, Higgins noted, Jackson issued a show cause order, giving Mr. Higgins’ attorney four days to respond, and then went on vacation and didn’t rule for five weeks.
Higgins also claims that the judge retaliated against him after he complained of the numerous delays to his Congressman’s office, Tennessee Republican Bob Corker.
Most recently, Higgins alleges that the judge forbade him from using his status as a whistleblower because the judge deemed his lawyer made a technical violation. Higgins was going to use his status as a whistleblower as an affirmative defense.
“As a sanction for the appellant’s failure, without good cause, to timely file prehearing submissions and failure, without good cause, to appear for the first prehearing conference, I ruled that I would not allow the appellant to present those affirmative defenses,” Jackson wrote in an August 14, 2015 ruling.
According to Bronwlow, she was given documents from the Memphis VA within a day of having to file a response and when she asked for an extension not only was the extension denied but this ruling was issued.
“I’ve been doing cases in front of the MSPB for thirty years,” Brownlow said, “and they’ve usually been a pleasure to litigate but this has tried my patience.”
Higgins said the judge should also have recused herself from the case since he has filed complaints about her handling of the case with the Inspector General’s Office (OIG) and the Office of Special Counsel (OSC).
“This ALJ (Administrative Law Judge) Judge Jackson is and has abused her judicial authority by exhibited personal bias, towards the appellant and opposing counsel by issuing threats to which she neither has the authority to make thus making her unfit to serve as an administrative law judge on the merit system protection board,” Higgins said in his complaint to the OSC.
Nick Schwellenbach, Senior Communications Specialist for OSC said by policy they neither confirm nor deny ongoing investigations but generally do not have jurisdiction over MSPB.