The court said the MSPB correctly found that the disclosures were protected under whistleblower law. Image: Lightspring/Shutterstock.com
By: FEDweek StaffThe Whistleblower Protection Act “does not require a protected disclosure to be channeled through a whistleblower’s chain of command,” a federal appeals court has held, emphasizing that the law “protects ‘any disclosure’ falling within the scope of the statute, regardless to whom the disclosure was made.”
Case No. 2023-1552 before the Court of Appeals for the Federal Circuit centered on the “numerous” emails that a VA employee sent outside the chain of command complaining about her non-selection for a promotion and about the hiring for that position and the section’s scheduling practices. She continued to do so, even up to the level of the Secretary, even after being told that complaints “must ascend the appropriate chain of command,” it said.
The VA asserted, and the MSPB agreed, that those actions constituted insubordinate conduct as a defense to her later claim that the VA retaliated by converting her appointment from permanent to temporary and then terminating it.
The court said the MSPB correctly found that the disclosures were protected under whistleblower law. However, it said that the restrictions the VA put on the channels through which she could make disclosures “ran afoul of the WPA” and that the MSPB erred by deeming failure to follow those restrictions as insubordinate.
“Though an agency might have good reasons for preferring that an employee first report to lower-level supervisory personnel, a report of wrongdoing is still protected under the WPA, and may not be prohibited nor retaliated against, if made outside the chain of command or even to the head of the agency,” it held.
However, the court said that error did not change the outcome of the case, saying the VA would have taken the same actions even without the disclosures. The department correctly changed the position to temporary because it had first been changed incorrectly from temporary to permanent, the court said, and other charges that the department raised in support of the termination were sufficient to justify it.
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