Federal employees who make whistleblowing-type disclosures in the course of their duties generally should not face a higher standard when asserting that they suffered retaliation, the Office of Special Counsel has said in a case that could set a legal precedent government-wide.
OSC made that argument in a legal brief before the Merit Systems Protection Board in the case of an employee who argues that he suffered reprisal for making disclosures to his managers regarding vehicle use, record-keeping, maintenance and irregular purchases with fleet cards. That resulted in a letter of reprimand to one of his managers and the employee’s performance ratings then declined and he ultimately was fired, according to an OSC summary of the case.
An MSPB hearing officer held that the employee was obligated to meet a higher standard of evidence required of those who make disclosures in the normal course of business—that the personnel action was taken “in reprisal for” the disclosure, not just “because of” that disclosure.
OSC is arguing before the full board that the higher burden should apply only in occupations such as investigators and auditors who are expected to look for and disclose wrongdoing as part of their jobs.
Even if that section of law applied in this case, OSC further argues, the administrative judge set a standard that is higher than the law specifies.
