In Rice v. USDA, Docket Number DC-1221-03-0726-W-1 (Sept. 30, 2004), the Merit Systems Protection Board reversed the administrative judge’s (AJ’s) decision, explaining that an employee’s allegations need only be “non-frivolous” to entitle him to an MSPB hearing.. In Mr. Rice’s case, in which he is represented by Bryan J. Schwartz of Passman & Kaplan, PC, the Board found that he properly reported the matter to the Office of Special Counsel (OSC), that he made “non-frivolous allegations” of protected disclosures (i.e., that he reported violations of law, rule, regulation, gross waste, fraud, gross mismanagement, etc.), that he made “non-frivolous allegations” that the agency took personnel actions against him, and that the protected disclosures contributed to the agency’s decision to take personnel actions against him. On that basis, the MSPB sent the case back to the AJ for a full hearing.
First, the MSPB reversed the AJ’s finding that certain of Mr. Rice’s complaints were not raised at the OSC because the OSC never accepted the formal amendments for investigation. The MSPB said, on the contrary, that the OSC had sufficient notice of these aspects of Mr. Rice’s retaliation claim, whether or not they were raised in his original complaint or were accepted amendments, because these aspects were mentioned in Mr. Rice’s correspondence with the OSC. This is an important finding by the Board because it establishes clearly that your contacts with the OSC need not be, in every instance, on special forms or by special means. Rather, you can raise issues in letters, by fax, by email – the important thing is just to mention everything to the OSC.
Second, the MSPB found that Mr. Rice’s allegations about the USDA’s actions were “non-frivolous” because:
* Mr. Rice first alleged to the inspector general (IG) that his supervisor reported to the IG that inventories of hazardous materials had been completed, though the supervisor knew that such inventories were incomplete. As the basis for his disclosure, Mr. Rice relied upon statements from employees required to perform such inventories and the report with alleged false information submitted by his supervisor. The Board found that Mr. Rice’s allegation was sufficiently specific in its bases so that it did not constitute an “unsubstantiated rumor.” The MSPB further held that his supervisor’s false report, if proven, “might very well constitute a violation of law, rule, or regulation,” and might also constitute gross mismanagement, creating a “substantial risk of a significant adverse impact upon the agency’s ability to accomplish its mission.”
* Mr. Rice alleged to the IG that his supervisor paid contractors from a fund which he knew was supposed to be used for specific homeland security projects. The Board held this was also non-frivolous allegation, showing a reasonable belief in a violation of law, rule or regulation, gross mismanagement, or a gross waste of funds.
Next, the MSPB found that the agency’s action – which his supervisor construed as a harmless reorganization – could constitute a retaliatory personnel action against Mr. Rice. Mr. Rice’s job duties as Chief of Safety, Health, Environmental and Security Branch were swallowed up by a new position for which he could not apply because the newly created position required a medical degree, which he does not possess. The Board also found that extending a detail and a letter of reprimand can be retaliatory personnel actions. Lastly, the MSPB found that Mr. Rice made non-frivolous allegations that his supervisor took the actions against him because of the whistleblower disclosures, since Mr. Rice stated that his supervisor knew that Mr. Rice had complained to the IG and OSC.
If you are a whistleblower, the MSPB’s decision should help you to get your foot in the door of the administrative justice system, designed to protect you. The decision should enable you to fight frivolous decisions aimed at dismissing your claims without a full and fair hearing on the merits.
** 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. **
