Federal Manager's Daily Report

Data on the outcomes of whistleblower retaliation cases brought to the Office of Special Counsel and to the MSPB should not be interpreted as showing that hearing officers are biased in favor of management, MSPB has said in a newsletter.

It notes that under the law, OSC investigates complaints brought to it of retaliation and may bring a case to the MSPB, but if the complainant is not satisfied with OSC—for example, if it refuses to pursue a case—the individual may appeal directly to the MSPB by bringing an “individual right of action” complaint. An MSPB hearing officer issues a decision and either side may seek review by the three-member MSPB governing board.

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For example, it said, while the data show that corrective action was ordered in only 10 of the 305 individual right of action complaints that were closed in fiscal 2014, another 69 were settled. Of the remainder, the large majority were dismissed for reasons such as late filing or voluntary withdrawal by the employee, leaving only 40 cases in which a decision was reached but no corrective action ordered.

“Many settlements include substantial relief,” MSBP said, citing one case in which an agency made a $360,000 payment to the individual and removed all negative references from the personnel file.

“What appears to be happening is that the strongest retaliation cases are resolved at the OSC level; the remaining cases come to MSPB, and even then, in a significant number of cases, either the agency offers relief to the satisfaction of the whistleblower or MSPB grants corrective action,” it said.