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The MSPB reversed an initial decision that affirmed the agency’s decision upholding a 30-day suspension for charges of misconduct. See Pedelose v. Department of Defense, 2007 MSPB 248 (10/24/07). The appellant was an industrial engineer who with other employees’ assistance submitted a report to the inspector general detailing safety problems with a tactical cargo and personnel transport aircraft. He and a coworker filed a complaint with the IG and their supervisor about the safety issues they observed in the program. Shortly thereafter, the appellant learned that his supervisor said in a meeting “since [coworker] is a probationary employee all they have to do is fire her.” He advised the IG, and the next day, the agency terminated the coworker.

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A few days later the appellant heard from another coworker that the already terminated coworker and two other employees were targeted by their supervisor for termination. He warned one of the employees, and in response, the employee submitted papers for retirement. Appellant’s supervisor then advised this employee that the rumor was incorrect and began an investigation into who reported this misinformation because the employee refused to reveal the source. The appellant refused to participate in the investigation because he thought it conflicted with the IG investigation. He was suspended for 30 days for refusing to cooperate in an agency investigation, insubordination and failure to follow instructions. After receiving an initial decision affirming the suspension, the appellant petitioned the MSPB for review. The MSPB found in a split decision that the agency failed to prove its charges of misconduct and the agency violated the Whistleblower Protection Act (WPA).

The general rule is that an employee must first comply with an order he believes is improper and register his complaint or grievance later. Two considerations that underlie this rule are: 1) the agency and its mission may be harmed by the employee’s failure to act; and 2) the employee may be mistaken in his belief. When employees are disciplined for breaking the rule, investigations of potential crimes and serious misconduct are usually involved. Here, none of these considerations were present. The appellant did not commit a crime or engage in serious misconduct. The agency was not able to prove its misconduct charges because the appellant simply raised legitimate concerns about the investigation, sought the advice of the IG and did not get a definitive answer about whether the investigation was lawful.

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The MSPB found that threatening to fire a coworker for disclosures concerning the safety of the program was a violation of the WPA, and that a supervisor’s use of influence “to denigrate other staff members in an abusive manner and to threaten the careers of staff members with whom h/she disagrees constitutes abuse of authority.” Additionally, the MSPB held that the appellant had a reasonable belief that his supervisor was correctly quoted about firing the coworker and that the supervisor’s statement established a violation of the WPA and an abuse of authority. Finally, the MSPB ordered the agency to take corrective action because the appellant’s protected disclosure was a contributing factor in his suspension and the agency failed to show it would have taken the same action in the absence of the disclosure.

* 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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