The Office of Special Counsel has intervened in a whistleblower retaliation case pending before the MSPB, arguing for a broader reading of protections for employees than the MSPB’s hearing officer used.
At issue was a back pay award in a case in which a VA employee alleged retaliation and the OSC obtained a stay of that action from the MSPB; the VA then reinstated the employee with back pay. However, due to what the OSC called errors by both the VA and the payroll provider, the employee did not receive the full amount of compensation.
When the employee sought the difference, an MSPB hearing officer held that the employee had failed to prove that the payroll provider, the Defense Finance and Accounting Service, had knowledge of his whistleblowing. The OSC argues that the law requires an employee to show only that protected activity “played a role in the personnel action at issue” after which “the burden of proof shifts to the agency.”
“This decision not only disregards the plain text and overarching purpose of the statute to provide broad relief to whistleblowers, but can also lead to unjust results,” the OSC said.
The outcome of the case will have to wait until the confirmation of at least two members of the three-member merit board, which has lacked a quorum for more than four years, rendering it unable to issue decisions on appeals of hearing officer decisions. No nominations to the board have been made to date.