In one case an employee asserted that a separation in a RIF was in retaliation for disclosures. Image: Lightspring/Shutterstock.com
By: FEDweek StaffRulings by the MPSB and a federal appeals court have addressed standards for deeming disciplinary actions against federal employees to be reprisal for whistleblowing, in both cases stressing the importance of deciding officials’ knowledge of the employees’ disclosures.
One of the cases, before the Fourth Circuit federal appeals court, involved an appeal of a two-day suspension that the employee contended was retaliatory for his whistleblowing disclosures. “When a disciplinary action is initiated fast on the heels of an employee making a protected disclosure, a reasonable person could easily conclude that the discipline was in retaliation for the disclosure,” the court said.
However, it stressed that in the case on appeal, the disciplinary process had started before the disclosures were made. Further, the deciding official came from outside the employee’s chain of command, “was not connected in any way to the disclosures” and “testified that he did not consider the disclosures” when making the decision.
The court added: “The statute does not provide that a protected disclosure automatically becomes a contributing factor in every case where a personnel action is finalized shortly after protected disclosures come to light; a disclosure is a contributing factor only when the confluence of the official’s knowledge and the timing of the action reasonably suggests a connection between the two.”
The other case, before the MSPB, involved an assertion that an employee’s separation in a RIF was retaliatory. The merit board overturned a hearing officer’s ruling that the disclosures did not qualify for whistleblower protection, but ruled that the disclosures were not a “contributing factor” to the agency decision.
The board found no evidence in the record that the deciding official knew about the disclosures and said that the official—who the hearing officer “found to be credible”—testified that he did not learn of them until the case had reached the board on appeal.
That ruling also held that a change in law enacted on June 14, 2017 broadening what types of actions are retaliatory did not apply retroactively. That made personnel actions retaliatory if they were taken in response to an employee’s refusal to follow an order that would have caused the employee to violate an agency policy or rule; previously, that applied only to violations of law.
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