Case No. 2024 MSPB 18 involved an employee’s claim that a retaliatory investigation led to reassignment. Image: Mabeline72/Shutterstock.com
By: FEDweek StaffThe MSPB has clarified its precedent regarding whether agency investigations of employees constitute retaliation against a whistleblower, adding that an employee “may pursue a claim of reprisal for having made a protected disclosure or engaged in protected activity, a claim that she was subjected to a retaliatory investigation, or both claims simultaneously.”
Case No. 2024 MSPB 18 involved an employee’s claim that a suspension and reassignment were reprisal for protected whistleblowing and that it was a retaliatory investigation that led to these personnel actions. A hearing officer concluded that she met her burden of proving that she engaged in protected whistleblowing that was a contributing factor to the suspension and reassignment, but that the agency in turn had proven that it would have taken the same action without the whistleblowing.
The merit board agreed regarding the first point but disagreed regarding the second, saying that under its precedent, an investigation may be “so closely related to the personnel action that it could have been a pretext for gathering information to retaliate against an employee for whistleblowing activity.” It said that in such cases, it will assess “somewhat differently” the standards it uses for determining whether the agency would have done the same regardless of whistleblowing disclosures.
It said that it will consider:
* the strength of the evidence that the agency official had when reporting or initiating the investigation, rather than the evidence that was discovered as a result of the report or investigation;
* the motive to retaliate on the part of the official who instigated the investigation, including whether that official was the subject of the whistleblowing, whether the official suffered any consequences as a result, and how soon after the whistleblowing the investigation began; and
* whether the relevant officials reported or initiated investigations against similarly situated employees who were not whistleblowers.
It concluded that while the agency “had some sound reasons to request an investigation,” under those standards, it did not show that it would have begun the investigation in the absence of whistleblowing. It ordered the agency to revoke the suspension and awarded back pay and benefits.
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