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Agency investigations into allegations against employees who have made disclosures aren’t acts of retaliation under whistleblower protection law if there was no threat of a personnel action against the employee, the MSPB said.
In case 2022 MSPB 24, an MSPB hearing officer had dismissed a complaint of retaliation on grounds that the employee had not shown that she had been subjected to a personnel action. After the investigation into an unrelated matter, the agency had informed her that no action would be taken and that no disciplinary file existed. Further, the investigation had only a minimal impact on her working conditions, that ruling said.
On appeal, the merit board said that in some circumstances “the mere threat” of a disciplinary action can amount to a retaliatory personnel action under whistleblower protection law, but “an allegation of wrongdoing alone, without any ensuing disciplinary or adverse action, or threat of disciplinary or adverse action, does not constitute a personnel action.”
“The investigation here did not result in any proposal of disciplinary or corrective action, the appellant’s detail, transfer, or reassignment, or any other personnel action identified” in the law, it said.
There further was no evidence that the investigation “amounted to a threat to take a personnel action or was pretext for gathering evidence to use to retaliate against the appellant for her alleged protected disclosure” or of “any practical or significant effects that the investigation had on the overall nature and quality of her working conditions, duties, or responsibilities.”
The MSPB said it agreed with the agency in the case that “to maintain the integrity of the working environment, an employer should thoroughly investigate allegations of possible employee wrongdoing.”
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