Fedweek

The Office of Special Counsel has argued in a court filing in favor of a broader reading of whistleblower protection law than the MPSB took in the decision being appealed.

The case involves a VA employee who asserted that she was retaliated against for making disclosures and for activities including filing a complaint with VA’s office of accountability and whistleblower protection, filing an unfair labor practice complaint, and testifying in coworkers’ MSPB and EEO proceedings.

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An MSPB hearing officer rejected her complaint, though, after examining only issues related to the disclosures. The full MSPB agreed, and the employee then appealed into federal court.

In its friend of the court brief, the OSC said that under the law, the issues of retaliation for making disclosures and of retaliation for engaging in activities such as filing complaints are separate and the MSPB erred by not considering the latter category. In particular, it said, while disclosures must meet certain legal standards to be considered whistleblowing, there is no such requirement regarding the other activities.

“The Board’s improper approach here is not in accordance with law and leaves federal employees uncertain about their appeal rights under civil service laws and vulnerable to retaliation explicitly prohibited by the statute,” the OSC said.

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2020 Federal Employees Handbook