The filing of an EEO complaint by itself does not constitute the type of disclosure protected by whistleblower law. Image: Lightspring/Shutterstock.com
A decision by the MSPB extended whistleblower protections to federal employees for cooperating with or disclosing information to investigators, while a ruling by a federal appeals court took a restrictive reading regarding drawing inferences of an agency’s intent to retaliate.
In 2025 MSPB 2, the merit board sent back for a determination a retaliation complaint that a hearing officer had dismissed on jurisdictional grounds. The employee initially had filed two complaints with the Office of Special Counsel, first asserting that she had experienced harassment after filing an EEO complaint and the second that she had been obstructed from competing for other positions in retaliation for filing the complaint. She filed a complaint with the MSPB after the OSC did not bring a case there.
The board noted that under its precedent, the filing of an EEO complaint by itself does not constitute the type of disclosure protected by whistleblower law. However, it also noted a section of law providing protection for cooperating with or disclosing information the OSC, an IG “or any other component responsible for internal investigation or review.”
Even though an EEO complaint was the subject, it said, that protection applies because an agency EEO office has “broad investigatory authority and authority to issue final decisions.” That decision follows a recent similar ruling finding that the provision encompass not just permanent agency components, but also ad hoc internal investigations or reviews that are conducted under an established agency procedure.
In Case No. 2023-1981, the Court of Appeals for the Federal Circuit rejected an argument that the MSPB should have given more weight to the destruction or loss by the agency of a file that the employee argued was evidence that the agency intended to retaliate against him.
The court said that the MSPB was within its discretion to apply a rule that an inference should be made “only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation.” It further upheld the MSPB’s conclusion that the agency met its burden of showing that it would have taken the same action even without a protected disclosure.
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