The appeal to the court focused mainly on whether no longer considering employees for a promotion amounts to not taking a personnel action. Image: ptgregus/Shutterstock.com
By: FEDweek StaffFederal employee protections against reprisal for whistleblowing can extend to situations in which an agency stopped considering employees for promotions and where the agency reorganized to make an employing office less significant, a federal appellate court has held.
In Case No. 23-1328, the Court of Appeals for the Federal Circuit took a broader reading than did an MSPB hearing officer in a case involving retaliation allegations brought by several employees of a CBP division on weapons of mass destruction.
The decision recounted that until late 2017, the agency had praised the office as a whole, and the employees individually, for their success; “there were indications” that the employees would be rewarded with an increase in pay and status. In November of that year, though, several began expressing concerns that agency leadership was not in compliance with a law regarding DNA collection.
Soon afterward, the court said, the agency began taking actions including removing work from the office, downgrading it from a division to a branch under another division, and lessening employees’ authorities. They complained to the OSC, resulting in a “withering report” that backed their allegations, but that agency did file a whistleblower reprisal case before the MSPB. The employees then did so personally and their complaints were consolidated.
The MSPB hearing officer, in a decision that became the final MSPB ruling, found that employees had not alleged actions that are prohibited by the Whistleblower Protection Act. The appeal to the court focused mainly on whether no longer considering employees for a promotion amounts to not taking a personnel action, which can be an act of reprisal under that law. While the hearing officer ruled that it is “too preliminary and speculative” to qualify, the court held that it does qualify.
“Being advanced to a higher-grade position not only could, but does, fit within the plain meaning of promotion, and ceasing to contemplate that promotion could amount to a not taking that action,” it said.
The court further overruled the hearing officer by holding that downgrading the division also could amount to retaliation as a significant change to the employees’ duties, responsibilities or working conditions.
“It’s possible that they would no longer have the manpower or autonomy that they did before and that the duties and responsibilities they had as members of [the division] could be replaced with new duties appropriate to the divisions they were assigned to,” it said in sending the case back to the MSPB.
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