The decision involved an employee who claims he was terminated in reprisal for disclosures made to the agency IG. Image: Victor Moussa/Shutterstock.com
By: FEDweek StaffThe MSPB has ruled that disclosing information to, or cooperating with, investigations qualify for protection under whistleblower law even when the investigation is done under a less formal internal agency process.
Decision No. 2025-1 involved an employee who contended that she was terminated in reprisal for disclosures made to the agency IG and to an internal agency investigator related to sexual harassment in the workplace.
A hearing officer held that the disclosure to the internal office was not protected by whistleblower law but that the disclosure to the IG was protected and that it was a contributing factor in the agency decision. However, the hearing officer found that the agency would have made the same decision regardless and affirmed the removal.
On appeal, the MSPB first held that the employee could pursue whistleblower retaliation claims. Even though the allegations could fall under the Civil Rights Act, she did not file an EEO complaint and she was not limited to procedures under that law, it said.
The MSPB also stressed a 2017 change to whistleblower protections stating that in addition to the inspector general of an agency or the Office of Special Counsel, cooperating with or disclosing information to “any other component responsible for internal investigation or review” is protected. That applies “regardless of its content, as long as the disclosure is made in accordance with applicable provisions of law,” it said.
Further, “The formality or lack thereof regarding the series of events that led to the investigation is of no consequence when analyzing whether the appellant’s actions constitute protected activity. Rather, the key question is whether an appellant’s activity was directed to a covered investigatory entity.”
The Board found that the reference to “any” agency component “is broad enough to encompass not just permanent agency components, but also ad hoc internal investigations or reviews conducted pursuant to an established agency procedure.”
That applies in this case because the investigator “appears to have occupied a position with a degree of independence and objectivity,” was authorized to perform tasks such as interviewing witnesses and write a final report, and employees were directed to cooperate, the decision said.
However, the MSPB nonetheless upheld the employee’s removal, agreeing that the agency proved it would have taken that action even without the protected disclosures.
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