In Rubendall v. Department of Health and Human Serevices, Doc. No. DC-1221-05-0099-W-1 (April 28, 2006), the employee received a seven-day suspension from the agency based on an alleged failure to cooperate with an official investigation. After filing a complaint with the Office of Special Counsel (OSC), alleging that her suspension was in retaliation for whistleblower activities, the employee filed an appeal with the Merit Systems Protection Board (MSPB or Board). In her MSPB complaint, the employee alleged, among other things, that she was retaliated against for disclosing misuse of government computer systems. The MSPB’s administrative judge dismissed the employee’s appeal, finding that she failed to present a “nonfrivolous” allegation of reprisal for whistleblowing. On appeal, the three-member Board unanimously overturned the administrative judge’s decision.

The Board reiterated that it has jurisdiction over a whistleblower appeal where an employee, who has exhausted administrative remedies by first filing an OSC complaint, demonstrates a nonfrivolous allegation that she engaged in whistleblowing activity by making protected disclosures, and that such disclosures were a contributing factor in the agency’s personnel action — in this case, a suspension. The question of whether an employee meets the threshold test of a “nonfrivolous” allegation is based on the written record, prior to holding a jurisdictional hearing. Once an employee establishes the nonfrivolous allegation of reprisal for whistleblowing, she has a right to hearing.

In this case, the Board found that the employee made allegations to her supervisor of specific instances of misuse of government computer equipment and systems. The employee submitted documentary evidence to substantiate that she presented those claims to her second-line supervisor, who also happened to be the official who decided to suspend the employee. The Board further reiterated that an employee is not required to prove that her disclosures were protected disclosures under the Whistleblower Protection Act in order to have a hearing, but merely required to make a “nonfrivolous” allegation that her disclosures were protected.

The Board noted that Title 18, United State Code, section 641, makes it unlawful to misuse or abuse anything of value of the United States. While the Board noted that alleged misuse of government computers could potentially be characterized as minor, there is no de minimis exception in the law that provides that a disclosure is protected if it evidences a violation of any law, rule, or regulation. Because the employee made allegations of misuse of government computers to her second-line supervisor, even though that supervisor may have lacked authority to directly correct any wrongdoing, those disclosures met the definition of protected whistleblowing. Consequently, the Board found that the employee made it a “nonfrivolous” allegation that she engaged in protected whistleblowing and is therefore entitled to a hearing on the merits of that allegation.

The Board also found that the employee made a nonfrivolous allegation that her disclosure was a “contributing factor” in the agency’s decision to suspend her. The Board noted that in the 1994 amendments to the Whistleblower Protection Act, Congress established a “knowledge/timing” test that allows an employee to demonstrate that a disclosure was a contributing factor in a personnel action through circumstantial evidence, such as evidence that the agency official taking the personnel action knew of the disclosure and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action. In this case, six months transpired between the alleged protected disclosure and the employee’s suspension. The Board noted that once the knowledge/timing test is met, as it was here, an administrative judge must find that an employee has shown that whistleblowing was a contributing factor in the personnel action at issue.

Because the employee demonstrated a nonfrivolous allegation of protected whistleblowing, and also proved that her disclosure was a contributing factor in the agency’s decision to suspend her, the burden shifts to the agency to established by “clear and convincing evidence” that it would have taken the same personnel action in the absence of her protected disclosure. This case was remanded to the Board’s administrative judge for a hearing on these issues.

This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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