MSPB: Whether disclosures were made in the course of an employee's duties should only come into play after an appeal is accepted for review. Image: Margoe Edwards/Shutterstock.com
By: FEDweek StaffIn a ruling that could pave the way to broader whistleblower protections for federal employees, the MSPB has returned to a hearing officer a case involving whether a disclosure is not protected when made as part of the employee’s regular duties.
In case No. 2023 MSPB 23, the hearing officer agreed with a DoD quality assurance specialist that she had made two disclosures that she reasonably believed evidenced a violation of law, rule, or regulation, and that they were contributing factors to the agency’s decision to remove her during her probationary period.
However, the hearing officer also found that the disclosures were made in the normal scope of her duties, and found that she had to show that the agency terminated her with an improper retaliatory motive — a higher standard than the normal requirement that a disclosure only be a contributing factor in a personnel decision.
The hearing officer dismissed the case without considering the merits after finding she had not met the higher standard.
On appeal, though, the MSPB said that the higher standard does not apply to whether an appeal should be accepted for review, but rather only during consideration of the merits after it is accepted.
It sent the case back to the hearing officer, saying the former employee needs only to show first that the disclosures were a contributing factor in the agency decision. If she meets that test, only then should the hearing officer consider whether her “principal job function was to regularly investigate and disclose wrongdoing,” whether she made her disclosures in the normal course of her duties, and whether she could show that the agency “had an improper, retaliatory motive for terminating her.”
It said the factors to be considered regarding a such a motive include: whether the officials knew of the disclosures and took the action within a time that a reasonable person could conclude that action was reprisal; the strength of the agency’s cited reasons; whether the disclosures were personally directed at the officials responsible; whether the officials had a desire or motive to retaliate; and whether the agency took similar actions against similarly situated employees who had not made disclosures.
Large Share of Federal Workforce about to Experience a Payless Pay Period
OPM Details Coverage Changes, Plan Dropouts for FEHB/PSHB in 2026
OMB Says Federal Workforce RIFs are Starting as Shutdown Drags On
Financial Impact of Shutdown Starts to Hit Home; WH Threatens No Back Pay
Surge of Retirement Applications Is in the Pipeline, Says OPM
See also,
TSP Takes Step toward Upcoming In-Plan Roth Conversions
5 Steps to Protect Your Federal Job During the Shutdown
Over 30K TSP Accounts Have Crossed the Million Mark in 2025
The Best Ages for Federal Employees to Retire
