Whistleblower law protects employee not just when agencies take certain personnel actions such as removals, but also to threatening to take such an action. Image: Lightspring/Shutterstock.com
By: FEDweek StaffAn MSPB decision has stressed that a threatened personnel action—even if it is not carried out—against an employee by a management official can constitute reprisal against a whistleblower.
In case No. 23 MSPB 24, the board told a hearing officer to consider an “individual right of action” (IRA) appeal brought by an employee who contended that her former agency threatened actions that were retaliation for disclosures she had made while working there. Among the assertions was that an official of her former agency threatened to release information about her tenure there on hopes that it would ruin her career at the new agency.
However, the hearing officer dismissed the case without a hearing on grounds that she that “failed to constitute a nonfrivolous allegation that she was subjected to a personnel action” because one agency lacks the authority to remove a federal employee from another.
The MSPB board, though, noted that assuming other standards are met—as it found them to be in the case—whistleblower law protects employee not just when agencies take certain personnel actions such as removals, but also to threatening to take such an action and to recommending that someone else take or threaten to take one.
The board said it has interpreted that “quite broadly to include instances where a manager’s recommendation or threat that an employee be removed is given some weight and consideration, even if no action was ultimately taken against the employee. Moreover, the Board has held that an employee need not be employed by the agency alleged to have retaliated against her so long as she meets the definition of an employee.”
The fact that the second agency “declined to carry out the threat to remove her is not dispositive because whether a threatened action is carried out or not does not determine the Board’s jurisdiction in an IRA appeal,” it said in remanding the case for a decision.
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