Fedweek Legal

In Greenspan v. Department of Veterans Affairs, Fed. Cir. No. 05-3302 (Sept. 8, 2006), the Federal Circuit reversed the Merit System Protection Board’s (Board) ruling that the agency proved, by clear and convincing evidence, that it would have reprimanded an appellant in the absence of his protected disclosures.


The appellant, a VA physician, received discipline after he made remarks suggesting an agency executive acted inappropriately. The appellant invoked the Whistleblower Protection Act, 5 U.S.C. §2302(b)(8) (WPA), but the Board upheld the agency’s position that the letter of reprimand and reduced proficiency rating would have been given because of the manner in which the protected disclosure was made, independent of the content of the disclosure. The WPA prohibits the taking of any adverse personnel action because of “any disclosure of information by an employee or applicant which the employee or applicant reasonably believes evidences–(i) a violation of any law, rule, or regulation, or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety. . . .”

In this case, the appellant was elected by the medical staff to serve as representative at a hospital management meeting. Earlier, the medical staff had taken a vote of “no confidence” in the leadership of the Chief Executive Officer (CEO), who was attending the meeting. When the appellant spoke at the meeting he accused the CEO of engaging in prohibited personnel practices, deals where there was a conflict of interest and nepotism, and reprisal. After the meeting, the agency issued a Notice of Proposed Suspension to the appellant for making “unfounded statements which were defamatory about a senior VA official.” After the appellant’s reply, the agency mitigated the penalty to a formal letter of reprimand, stating that appellant’s presentation was done in “a derogatory, inflammatory and inappropriate manner.” The appellant’s supervisor also lowered his proficiency rating for “Personal Qualities” from “High Satisfactory” to “Satisfactory.” The appellant then filed a request for corrective action with the Board, claiming the reprimand and reduced rating were retaliation for his “whistleblowing.”

The Board presumed that appellant’s disclosures were protected, that the agency’s actions were adverse personnel actions within the meaning of §2302, and that his disclosures were a contributing factor to the agency’s actions. To prevail, the agency had to establish that it would have taken the same actions in the absence of the protected disclosures. Horton v. Dep’t of the Navy, 66 F.3d 279, 284 (Fed.Cir.1995). The Board, in Geyer v. Department of Justice, 70 M.S.P.R. 682, 688 (1996), aff’d, 116 F.3d 1497 (Fed.Cir.1997), identified several factors that may be considered when determining whether an agency action would have been taken in the absence of the employee’s whistleblowing disclosures, including the strength of the agency’s reason for the personnel action when the whistleblowing is excluded; the existence and strength of any motive to retaliate for the whistleblowing, and any evidence of similar actions against similarly situated employees for the non-whistleblowing aspect alone. The agency did not dispute that the actions against the appellant were taken in retaliation for his statements at the staff meeting, but argued that appellant was disciplined for derogatory, inappropriate, and disrespectful conduct, not for the content of his words. After a hearing, the administrative judge found that the agency would have taken the same disciplinary actions because appellant’s conduct was rude and disrespectful.

While the Board affirmed this ruling, the Federal Circuit, noting that the WPA shields employees who speak out and criticize government management to “freely encourage employees to disclose that which is wrong with our government,” concluded that although wrongful or disruptive conduct is not shielded by the presence of a protected disclosure in this case, the conduct charges are anchored in the protected disclosures themselves. Thus, had the appellant not made the disclosures, he would not have been reprimanded, and there was not clear and convincing evidence that he was not disciplined for his conduct alone.


This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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