Reprisal for Serving as a Witness

On August 6, 2014, the Merit Systems Protection Board issued a precedential decision in Carney v. Dept. of Veterans Affairs,2014 MSPB 62.In this case under one of the new causes of action allowed by the Whistleblower Protection Enhancement Act of 2012 (WPEA), the MSPB took an expansive view on the evidence necessary to plead a claim of reprisal for serving as a witness in another employee’s grievance.

Prior to 2012, retaliation for acting as a witness in a grievance was not a claim which an employee could independently litigate.The WPEA changed that, allowing employees to take an Independent Right of Action (IRA) appeal to the MSPB on grievance reprisal claims (among several other new causes of action), provided that the claim had been first filed and exhausted at the Office of Special Counsel (OSC).

Carney served as a witness in the grievance of one of his coworkers.Just over two weeks later, the agency suspended Carney for five days, and then soon after suspended him for an additional 14 days.Carney filed a reprisal complaint, alleging that his suspension was reprisal for his acting as a witness in the coworker’s grievance, with OSC, properly exhausted it, and then filed an IRA appeal with the MSPB.The MSPB administrative judge dismissed the claim, and Carney then filed an appeal with the full Board.

On appeal, the Board reversed the administrative judge’s decision.The MSPB agreed with the administrative judge that Carney had properly exhausted his suspension claims at OSC, and that Carney’s witness testimony in the grievance constituted protected activity with IRA rights under the WPEA.As the acts of alleged retaliation occurred within weeks of Carney’s grievance testimony, they fell within the one-year timeframe for reprisal from MSPB precedent.

Where the MSPB differed from the administrative judge was in the sufficiency of Carney’s evidence that the deciding managers knew about his testimony.The administrative judge relied on sworn statements by the managers in which they denied knowing about the grievance.The MSPB found that the administrative judge should not have credited such evidence at the preliminary dismissal stage, given that Carney had presented sufficient evidence to make a nonfrivolous allegation that the managers knew about his grievance participation.Since the managers merely contradicted Carney’s evidence, the Board found that it should not have been taken into account at the dismissal stage.As a result, the MSPB reversed the dismissal, and remanded Carney’s case to the administrative judge for a hearing on its 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.

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