Federal Manager's Daily Report

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A federal appeals court has said that repeated instances of an employee being denied promotions for which he was qualified—including one in which he was graded as the only candidate in the best-qualified category—supports a conclusion that he was retaliated against for whistleblowing.

The ruling came in the second time the Seventh Circuit appeals court considered a case involving a Justice Department employee who contended his agency retaliated against him for making disclosures regarding co-workers. An initial MSPB decision held that the disclosures did not qualify under whistleblower protection law but the court found that they did and sent the case back for reconsideration. While that was pending, the employee filed a second complaint, alleging additional acts of retaliation for the same or similar disclosures alleged in the first appeal.

The hearing officer again sided with the agency, holding that while the disclosures had been a contributing factor in at least some of the actions, the agency showed that it would have taken the same action regardless. The employee appealed again and the court again sided with him, saying the agency’s evidence to be “highly subjective” and “so inconsistent with the record that it could support a finding of pretext.”

It added that “sheer number of promotions [the employee] was qualified for but denied in the wake of his protected disclosure weighs against the affirmative defense. Perhaps one or two might be explained away. But there is ample evidence here of widespread resentment [among agency officials of his] protected disclosure and too many denials to accept all of the agency’s explanations as clear and convincing.”

After the disclosure, the court added, the employee’s “career was going nowhere.”

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