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Primer: Whistleblower Protection Act

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  • Posted on: Dec 20 2017

Since the late 1970s, federal employees have enjoyed protection from retaliatory acts in response to the reporting of illegal or other wrongful conduct by their employers. Such protections were provided in the Civil Service Reform Act of 1978. Since that time, Congress has expanded the protections for federal employees in the Whistleblower Protection Act of 1989 (“WPA”) and the Whistleblower Protection Enhancement Act of 2012 (“WPEA”).

Whistleblower Protection Act Of 1989

To trigger the anti-retaliation protections of the WPA, an employee must demonstrate that: (1) a “personnel action” was taken, (2) because of a “protected disclosure” (i.e., whistleblowing), (3) which was made by a “covered employee.” 5 U.S.C. § 2302(b)(8).

If the employee meets the foregoing requirements, then the burden shifts to the agency to prove by clear and convincing evidence – which is a more difficult standard to satisfy than the preponderance of the evidence standard – that it would have taken the same action against the employee regardless of whether the employee engaged in protected activity (i.e., reported concerns about illegal or improper activity). 5 U.S.C. 1214(b)(4)(B)(ii).  When determining whether an agency has satisfied its burden, the Merit Systems Protection Board (“MSPB” or the “Board”) considers the following factors, among others: “the strength of the agency’s evidence in support of its personnel action; the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and any evidence that the agency takes similar actions against employees who are not whistleblowers but who are otherwise similarly situated.” See Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed. Cir. 1999) (citations omitted).

The Elements of a Claim of Retaliation Under The WPA

Personnel Actions

Under the WPA, an agency may not “take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of” whistleblowing activity (e.g., exercising any appeal, complaint, or grievance right granted by law, rule, or regulation; testifying for others or lawfully assisting others in any such appeal, complaint, or grievance right; cooperating with or disclosing information to an agency Inspector General or the Special Counsel; or refusing to obey an order that would be in violation of law).

The WPA defines the term “personnel action” to include the following categories of activity:

  • an appointment;
  • a promotion;
  • an action under Chapter 75 of Title 5 or other disciplinary or corrective action (g., a demotion; a reduction in pay or grade; a furlough of up to 30 days; removal from federal employment; a suspension; placement on administrative leave; a letter of warning; a reduction in force; and/or a reprimand (either oral or in writing));
  • a detail, transfer, or reassignment;
  • a reinstatement;
  • a restoration;
  • a reemployment;
  • a performance evaluation (including a performance improvement plan);
  • a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action;
  • a decision to order psychiatric testing or examination; and
  • any other significant change in duties, responsibilities, or working conditions.

Certain actions under the WPA are not considered to be personnel actions. These include an arrest by an agency police officer, comments directing an employee to “find another job,” and denying or revoking an employee’s security clearance.

Also, opening an investigation into an employee’s conduct is not considered to be a personnel action. However, when “an investigation is so closely related to the personnel action” that the investigation “could have been a pretext for gathering evidence to retaliate,” then the agency must demonstrate by clear and convincing evidence “that the evidence would have been gathered absent the protected disclosure.” If the agency fails to meet this burden, “then the [whistleblower] will prevail on his affirmative defense” of whistleblower retaliation. Russell v. Dep’t of Justice, 76 M.S.P.R. 317, 324 (1997).  In that event, the employee may seek compensation for defending against the claim, including recovery of fees, costs, and/or damages reasonably incurred due to the improper investigation. 5 U.S.C. § 1214(h).

Pleading Actual or Threatened Personnel Action in Response to Whistleblowing

To establish a prima facie case of retaliation for whistleblowing (i.e., exercising an employee’s disclosure rights under Section 2302(b)(9) of the WPA), an employee must prove the following by a preponderance of the evidence: (1) the employee, or someone identified with the employee, engaged in a protected activity; (2) the agency took, failed to take, or threatened to take a personnel action (note: an action recorded on a Standard Form 50 Notification of Personnel Action (SF-50) or SF-52 (Request for Personnel Action) is generally considered to be sufficient proof of personnel action); (3) the official responsible for the personnel action knew about the employee’s protected activity; and (4) a causal connection existed between the protected activity and the personnel action.

The Employee Was Engaged in Protected Activity

Under the WPA, the employee must be engaged in protected activity – i.e., whistleblowing. Such activity can include reporting “a violation of any law, rule, or regulation” or “gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” 5 U.S.C. § 2302(b)(8)(A).

The Employer Knew That The Employee Was Engaged Protected Activity

Under the WPA, the employee must prove that individuals within the agency responsible for the decision to engage in the personnel action knew about the employee’s protected disclosures. An employee can meet this requirement by showing either actual or constructive knowledge.

An employee may prove actual knowledge using direct or circumstantial evidence and constructive knowledge where an official with actual knowledge influenced the deciding official.

Causation

An employee must show a causal connection between the protected activity and the retaliatory personnel action. An employee can show causation in one of two ways: the knowledge–timing test; or circumstantial evidence.

To satisfy the knowledge–timing test, an employee must prove: (1) the official who took the personnel action knew of the protected disclosure; and (2) the personnel action occurred within a period of time such that a reasonable person could conclude that the protected disclosure was a contributing factor in the personnel action. If the employee fails to demonstrate both knowledge and timing, then the employee may present circumstantial evidence to show that no other factor influenced the outcome of the personnel action. Marano v. Dep’t of Justice, 2 F.3d 1137, 1143 (Fed. Cir. 1993) (holding that “the employee only needs to demonstrate by preponderant evidence that the fact of, or the content of, the protected disclosure was one of the factors that tended to affect in any way the personnel action.”).

Protected Disclosures

As noted, any disclosure of information that a covered employee reasonably believes evidences “a violation of any law, rule, or regulation” or evidences “gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety” is protected under the WPA, as long as the disclosure is not prohibited by law or required to be kept secret by Executive Order in the interest of national defense or foreign affairs. In the WPEA, Congress added that a disclosure is protected even if the disclosure is made to a person, including a supervisor, who participated in the alleged wrongdoing; revealed previously disclosed information; is made by an employee who may have other motives for making the disclosure; is made while the employee was off duty; is about events that occurred a long time ago; or is made during the employee’s normal course of duties, provided the employee can show that the personnel action was taken “in reprisal for” the disclosure.

Moreover, any disclosure made to the Special Counsel or to the Inspector General of an agency or another employee designated by the head of the agency to receive such disclosures, which the employee reasonably believes evidences “a violation of any law, rule, or regulation,” or evidences “gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety” is protected.

Notably, the employee need not prove that the matter disclosed was unlawful or constituted gross mismanagement, a gross waste of funds, an abuse of power, or a danger to public health or safety. Rather, the employee need only show that a person standing in his/her shoes would reasonably believe, given the information available to him/her, that the disclosure evidences one of these types of wrongdoing. See Lachance v. White, 174 F.3d 1378, 1380 (Fed. Cir. 1999) (noting the test is based on the “reasonable belief” of the employee and stating that the proper test is whether “a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee [could] reasonably conclude that the actions of the government evidence the conduct described in 5 U.S.C. § 2302(b)”) (internal quotation marks and citations omitted).

Gross Mismanagement, Gross Waste of Funds, Abuse of Authority,

and Substantial and Specific Danger To Public Health Or Safety Defined

 

Gross Mismanagement

Gross mismanagement is “a management action or inaction which creates a substantial risk of significant adverse impact upon the agency’s ability to accomplish its mission.” Kavanagh v. M.S.P.B., 176 F. App’x 133, 135 (Fed. Cir. Apr. 10, 2006).

Gross Waste of Funds

A “gross waste of funds” is defined as a “more than debatable expenditure that is significantly out of proportion to the benefit reasonably expected to accrue to the government.” Van Ee v. EPA, 64 M.S.P.R. 693, 698 (1994).

Abuse of Authority

An abuse of authority is an “arbitrary or capricious exercise of power by a federal official or employee” that harms the rights of any person or that personally benefits the official/employee or their preferred associates.” Elkassir v. Gen. Servs. Admin., 257 F. App’x 326, 329 (Fed. Cir. Dec. 10, 2007).

Substantial and Specific Danger to Public Health or Safety

To determine whether the disclosed harm was “specific,” the Board looks to the likelihood that the harm will result, as well as when the harm may occur. Chambers v. Dep’t of the Interior, 515 F.3d 1362, 1369 (Fed. Cir. 2008). For example, “[i]f the disclosed danger could only result in harm under speculative or improbable conditions, the disclosure” would “not enjoy protection.” Id. Similarly, a “revelation of a negligible, remote, or ill-defined peril that does not involve any particular person, place, or thing, is not protected.” Sazinski v. Dep’t of Housing & Urban Dev., 73 M.S.P.R. 682, 686 (1997). In short, the disclosure of a danger only potentially arising in the future is not a protected disclosure. Chambers, 515 F.3d at 1369; Herman v. Dep’t of Justice, 193 F.3d 1375, 1379 (Fed. Cir. 1999).

To determine whether the disclosed harm was “substantial,” the Board looks at the nature of the harm (i.e., the potential consequences). The disclosure of trivial or de minimis matters are not protected.  Herman v. Dept. of Justice, 193 F. 3d 1375, 1379 (Fed. Cir. 1999).

Covered Employees

Generally, current and former employees or applicants for employment to positions in the executive branch of government and the Government Printing Office, in both the competitive and the excepted service, as well as positions in the Senior Executive Service, are considered covered employees.

The WPA does not apply to federal workers (1) employed by the U.S. Postal Service or the Postal Rate Commission, the Government Accountability Office, the Federal Bureau of Investigation, the Central Intelligence Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, the National Security Agency; (2) any executive entity that the President determines primarily conducts foreign intelligence or counter-intelligence activities; (3) positions that have a “confidential, policy-determining, policy-making, or policy-advocating character”; and (4) positions exempted by the President based on a determination that it is necessary and warranted by conditions of good administration.

Damages Available Under the WPA

If an employee prevails on his/her claim, he/she can recover lost wages, attorney’s fees, equitable relief (e.g., reinstatement, rescinding a suspension, or modifying a performance evaluation), and compensatory damages (including, damages for emotional distress).

The Forums in Which a Whistleblower Claim May Be Asserted

Under the WPA, there are three general forums in which a whistleblower may seek protection: (1) an appeal to the MSPB; (2) actions instituted by the Office of Special Counsel (“OSC”); and (3) individual rights of action (“IRA”). Notably, an aggrieved employee adversely affected by a prohibited personnel action is limited to only one of the foregoing forums. Once the employee selects the forum in which to proceed, the other two options are no longer available.

Aside from the statutory provisions of the WPA, the defense or claim of retaliation for whistleblowing might also be raised in a grievance proceeding initiated by an employee pursuant to a grievance procedure that was negotiated through collective bargaining between the agency and the employee’s union. However, the employee cannot file a union grievance and an MSPB appeal or OSC complaint over the same act of retaliation.

Appeals to the MSPB

The MSPB is authorized to hear and rule on appeals by employees regarding agency actions affecting the employee and that are appealable to the MSPB by law, rule, or regulation. The types of agency actions against employees that are appealable to the MSPB, and in which an employee may raise the defense of retaliation for whistleblowing as a prohibited personnel action, include adverse actions against the employee for “such cause as will promote the efficiency of the service” (generally referred to as conduct-based adverse actions) (5 U.S.C. § 7513(a)), and performance-based adverse actions against employees for “unacceptable performance.” 5 U.S.C. § 4303(a). In such appeals, an agency’s decision and action will not be upheld if the employee “shows that the decision was based on any prohibited personnel practice described in section 2302(b) of this title.” 5 U.S.C. § 7701(c)(2)(B).

Actions by the Office of Special Counsel

The OSC is responsible for receiving allegations of prohibited personnel practices and to investigate such allegations, 5 U.S.C. § 1212(a)(2), as well as to conduct an investigation of possible prohibited personnel practices on its own initiative, absent any allegation. 5 U.S.C. § 1214(a)(5).

The Special Counsel has several avenues available through which to pursue allegations, complaints, and evidence of retaliation for whistleblowing activities, including (1) requiring agency investigations and agency reports concerning actions the agency is planning to take to rectify those matters referred (5 U.S.C. § 1213(c)); (2) seeking an order for “corrective action” by the agency before the MSPB (5 U.S.C. § 1214(b)(2)); (3) seeking “disciplinary action” against officers and employees who have committed prohibited personnel practices (5 U.S.C. § 1215(b)); (4) intervening in any proceedings before the MSPB, except that in cases where an individual has brought an IRA under Section 1221 or an appeal to the MSPB under Chapter 77, the OSC must first obtain the individual’s consent (5 U.S.C. § 1212(c)); and (5) seeking a stay from the MSPB for any personnel action pending an investigation. 5 U.S.C. § 1212(b)(1).

If an employee chooses to make a claim for whistleblower retaliation with the OSC, then the OSC must investigate the allegations and render a decision within 240 days of receipt of the complaint as to whether there are reasonable grounds to believe that a prohibited personnel action took place.

If the OSC rules against the employee, then the employee can seek relief by appealing to the MSPB 60 days after the OSC closes its investigation or 120 days after filing a complaint with the OSC.

Individual Right of Action

In an IRA appeal, the employee is subject to a personnel action and claims that the action was taken because of whistleblowing. Under this option, the employee has an independent right to seek review of a Section 2302(b)(8) whistleblower retaliation claim at the MSPB, after exhausting administrative remedies at OSC. The IRA appeal option is available after 120 days have passed since the whistleblower filed a complaint with OSC, and an IRA appeal must be filed within 65 days of receiving an IRA rights letter from OSC.

Section 101(b) of the WPEA expands the IRA right to include most 2302(b)(9) reprisal claims, including: retaliation for filing a whistleblower appeal; retaliation for assisting an individual in the exercise of an appeal, complaint or grievance right; retaliation for cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel; or retaliation for refusing to obey an order that would require the individual to violate a law.

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