In a recent decision by the Merit Systems Protection Board (MSPB), a federal employee’s appeal of disciplinary actions taken by their Agency was remanded for further review. The case involved allegations of retaliation for whistleblowing and disclosures made to the inspector general concerning workplace violence and potential misclassification of duties.
Background
The Appellant, a Supervisory Appeals Officer at a federal Agency, was temporarily promoted to a higher grade level before being returned to her original position. Over the years, she raised concerns regarding the alleged misclassification of her role and reported other issues, including discrepancies in case productivity data and workplace safety incidents.
Following her disclosures, the Agency proposed and enacted disciplinary actions against the Appellant, including a 5-day and a 10-day suspension, and eventually, her removal. The Appellant contended that these actions were retaliatory, stemming from her protected disclosures.
Initial Decision
An administrative judge initially found that some of the Appellant’s disclosures were protected under the Whistleblower Protection Act (WPA). However, the judge ruled that the Agency had provided clear and convincing evidence that it would have taken the same disciplinary actions regardless of the Appellant’s protected disclosures.
Petition for Review and Remand
The Appellant filed a petition for review, arguing that certain communications with IG regarding workplace safety and Agency reports were protected under whistleblower laws. On review, the MSPB agreed with the Appellant that her communications with IG should be considered a protected activity under the Whistleblower Protection Enhancement Act (WPEA).
The Board found that the administrative judge had erred by not recognizing these communications as protected under 5 U.S.C. § 2302(b)(9)(C), which covers disclosures to an Inspector General. As a result, the MSPB remanded the case to the regional office for further adjudication on whether the Appellant’s protected activities contributed to the disciplinary actions taken against her and whether the Agency could still prove its defense by clear and convincing evidence.
Next Steps
On remand, the administrative judge will need to consider the Appellant’s protected disclosures to IG and determine if they played a role in the Agency’s decision to discipline her. The MSPB’s decision to remand the case demonstrates the importance of ensuring that all whistleblower disclosures, especially those involving safety and Agency misconduct, are properly considered in disciplinary disputes.
Find Attorneys for Federal Employees to Fight for Your Rights
If you are a federal employee facing potential retaliation for whistleblowing or engaging in protected activity, Southworth PC’s experienced attorneys for federal employees can help you navigate the legal process. Our team is committed to protecting your rights and holding agencies accountable.
Disclaimer: Past results do not guarantee future outcomes. Each case is unique and dependent on its own facts and circumstances.