In two recent decisions the MSPB has addressed the scope of whistleblower protections for federal employees, producing a mixed outcome for the employee in one while in the other holding that an allegation was not a protected disclosure under the law.
The former case, 22 MSPB 8, involved a hearing officer’s rejection of a complaint on jurisdictional grounds, saying that the employee had failed to complete the required steps before the Office of Special Counsel before filing a retaliation complaint directly to the board. That decision was based on the employee’s lack of a response to a communication from the OSC.
The board overruled that finding, saying that while such a response is allowed it is not required. However, it said that an earlier settlement agreement precluded some of the employee’s arguments and that the employee did not present the level of evidence required for a finding of retaliation.
In the other case, 22 MSPB 9, a supervisor alleged that he was demoted as an act of retaliation after he “disclosed and protested” that upper management had discriminated against other employees based on race.
The board said that the employee “appears to have been admirably motivated in seeking to remedy perceived discrimination in his agency.” However, it agreed with the hearing officer that “allegations of discrimination may not be brought under the whistleblower protection statutes” but must follow the EEO process instead.
The board also agreed that giving support to the other employees did not qualify for whistleblower protection as assisting them in their exercising any right regarding an appeal, complaint or grievance. In the process, the MSPB overturned two earlier decisions that had suggested that protections would apply, saying those decisions run against court precedent.
“To be clear, we strongly condemn managers taking personnel actions in reprisal for engaging in any protected activity, including alleging violations of title VII [of the Civil Rights Act]. Congress has not left such employees without recourse. Rather, they may seek redress under title VII, which is enforced by the EEOC,” the decision said.