A federal appeals court has reversed an agency’s decision to reassign an employee who had made whistleblowing disclosures, saying the agency failed to support its argument that it would have taken the same actions regardless.
The employee was reassigned away from the worksite when an IG investigation into his allegations began–according to the agency, at the request of the investigators–and for years afterward was given various lower-level assignments, which he alleged were retaliatory. The MSPB had found the disclosures to be the type protected by whistleblower law but also found that the agency had met its burden of showing by clear and convincing evidence that it would have done the same even had he not made the disclosures.
However, the U.S. Court of Appeals for the Federal Circuit held that the only evidence of the basis for the reassignment was a supervisor’s testimony that IG directed it out of fear that the petitioner might interfere with the investigation.
“There was no explanation as to why or how it was feared that the petitioner might interfere, and there was no evidence as to what individual at OIG the petitioner’s supervisor spoke with. This explanation is further undermined by the petitioner’s outstanding character and reputation. Moreover, there is no documentation of any of the petitioner’s multiple reassignments or the reasons therefor,” said an MSPB summary of the decision.
Also, there was no documentation of the reasons for the reassignments, the court said, and the agency did not provide evidence to show that it typically reassigns pending IG investigations into their disclosures.