The U.S. appeals court for the Federal Circuit has concluded that an employee’s allegations of reprisal for disclosures protected under the Whistleblowers Protection Act were sufficient to establish Merit Systems Protection Board jurisdiction, contrary to a decision by the board, which must now reconsider the case on its merits.
The employee, a safety and occupational health manager in the Office of Secure Transportation of the National Nuclear Security Administration, began voicing concern that a new policy would delegate responsibility for safety management to personnel lacking appropriate education and experience in safety management, according to appeals court decision 2007-3167.
It said that in February of 2006 she sent an email to her supervisors and others, some outside her agency branch, complaining that her job description and responsibilities would be changed under the proposed policy, and raising legal and ethical concerns.
Soon after, she told her supervisors she was taking her concerns to the inspector general, at which point she says she was reprimanded and told she had "damaged her reputation beyond repair" by circulating the email.
Shortly thereafter she received a "counseling memorandum" stating that she had "demonstrated inappropriate conduct" by sending the email, and later received a revised performance plan that she says reduced her training and safety management responsibilities, effectively demoting her.
The employee then filed a formal letter of the complaint with the IG about the policy, and then filed a complaint with the Office of Special Counsel, attributing past training accidents to "flaws in the risk assessment procedures."
She finally appealed to MSPB, alleging that the agency had retaliated against her for engaging in protected whistleblowing activity.
The administrative judge dismissed her appeal for lack of jurisdiction, concluding that the WPA did not protect her disclosures because they did not identify a substantial and specific threat to public safety.
However, the appeals court said MSPB erred in that assessment, agreeing with the employee that she had in fact established board jurisdiction by non-frivolous allegations that she suffered reprisal for expressing her opinion that the agency’s new policy would put agency personnel and others at risk for serious injury.
The appeals court concluded even though the employee’s communications primarily involve dissatisfaction with her job assignments, and that she may be unable to establish that she suffered reprisal, whether or not she will ultimately be able to prevail on the merits is a separate issue from whether the board had jurisdiction over her appeal.
