Following is the section of the Office of Special Counsel’s recent annual report to Congress describing whistleblower retaliation complaints it received in 2017 and the outcome of selected cases.
In FY 2017, OSC has continued to see elevated levels of new cases. For the third year in a row, OSC received around 6,000 new matters . . . OSC continues to set records in achieving favorable results. In PPP cases this past year, OSC achieved 323 favorable actions, more than triple the number in an average year. Over FY 2016-17, OSC obtained favorable results in 459 whistleblower retaliation actions, which is also triple the rate of an average two-year span. Further, OSC achieved a record 47 systemic corrective actions in FY 2017, which will result in significant policy changes or larger training efforts to proactively prevent future violations at the agencies involved.
Finally, OSC filed four amicus curiae briefs to clarify the scope of whistleblower protections for Federal employees.
Prohibited Personnel Practice Successes
OSC protects Federal employees and applicants for Federal employment from PPPs. The following are examples of recent successes in resolving PPP complaints filed with OSC:
Whistleblower Retaliation
• Complainant alleged that she reported an agency official to management and to the Office of Inspector General (OIG) for suspected theft. OSC obtained from the MSPB a formal stay of the complainant’s demotion. OSC’s investigation determined that the official demoted the complainant to the lowest position available in retaliation for her disclosures. The agency ultimately agreed to provide the complainant with full corrective action including reinstatement, back pay, and compensatory damages. Based on OSC’s investigation and PPP report, the agency decided to suspend the agency official for 14 days and reassign her. However, the official first resigned from service.
• Complainant, an assistant chief of human resources, alleged that her agency proposed her removal in retaliation for disclosing that the chief financial officer and other high-level officials repeatedly pressured her to qualify the chief financial officer’s husband for a position. OSC obtained an informal stay of the proposed removal and a new supervisor for the complainant.
• Complainant, a supervisory law enforcement officer, alleged that his agency subjected him to an unwarranted investigation, removed him from his supervisory position, and suspended and reassigned him after he disclosed security concerns about a subordinate employee. With OSC’s assistance, the parties settled the matter wherein the agency agreed to destroy all copies of the investigation, remove any references to it from the complainant’s performance appraisal and personnel materials, adjust the complainant’s performance appraisal to reflect actual work, and promise not to consider the investigation or its findings in any future personnel actions.
• Complainant alleged he received a lowered appraisal and was placed on administrative duties after reporting administratively uncontrollable overtime abuse to OSC. OSC sent a detailed letter, akin to a PPP report, requesting that his agency take appropriate action. With OSC’s assistance the parties entered into a settlement agreement, which included compensatory damages, back pay, attorney’s fees, rescission of letters of counseling, and an increased performance appraisal rating.
• Complainant, a supervisor, alleged that she was subjected to a hostile work environment, suffered a reduction in responsibilities, and received a lowered performance appraisal in retaliation for her disclosures of widespread corruption and mismanagement at her agency. With OSC’s assistance, the parties agreed to full corrective action for complainant as well as disciplinary action in the form of a seven-day suspension for one subject official and a five-day suspension and a demotion for another subject official.
• Complainant, a former director of finance, alleged that she was removed from employment in retaliation for disclosures she made about her agency’s board members’ travel
reimbursement documentation and contacts with foreign nations. With OSC’s assistance, the parties entered into a settlement agreement wherein the agency agreed to rescind the complainant’s removal, change her personnel record to reflect that she resigned, provide her a neutral reference, and pay her back pay, attorney’s fees, and compensatory damages.
• Complainant, a Freedom of Information Act (FOIA)/Privacy Act officer, alleged that her agency proposed her removal in retaliation for her association with a known whistleblower. Complainant had previously processed numerous FOIA requests by that whistleblower who used information obtained through FOIA requests to make disclosures to the press and Congress. With OSC’s assistance, the parties reached a settlement for full corrective action, including performance awards, attorney’s fees, and compensatory damages.
• Complainant, a procurement and acquisitions chief, alleged that his agency reassigned him to a position that is not consistent with his previous position or professional experience in retaliation for his disclosures to the OIG and others about the improper use of funds. With OSC’s assistance, the parties entered into a settlement agreement, which included a lump sum payment to the complainant.
• Complainant alleged that she disclosed that her agency falsified appointment wait times for its new patients. After she received notice of a demotion based on a planned management action to dismantle her program, OSC obtained evidence that the agency’s decision to dismantle her program and demote her lacked reasonable grounds. In a settlement agreement, the agency agreed to maintain the complainant’s position in her program and to provide substantial compensatory damages.
• Complainant alleged that after she reported treatment errors and misuse of vendor-provided services for personal gain, her agency subjected her to a hostile work environment and threatened her with a performance improvement plan. Based on OSC’s intervention, the agency agreed to provide the employee with a clean record, a lump sum payment, and new supervision.
• Complainant alleged that after reporting that his agency wasted more than $200,000 by sending lab work to contractors for analysis that ultimately delayed the diagnosis of patient medical conditions, the agency interfered with his ability to perform his professional duties. With OSC’s assistance, the parties settled the matter wherein the agency agreed to pay a lump sum, restore the complainant’s work privileges, change his supervisors, pay his attorney’s fees, and provide him with training opportunities. The agency also agreed to PPP training for its employees.
• Complainant alleged that after she reported concerns about the inadequate screening of certain travelers at her airport, her agency subjected her to an internal investigation for misconduct that resulted in a suspension. After OSC investigated the matter, the agency agreed to rescind the suspension and remove derogatory information from her personnel file.
• Complainant alleged that he was removed because he declined to accept a directed reassignment after first having disclosed his belief that a local tribe had entered into improper
oil and gas lease agreements. Complainant also disclosed that the agency failed to fulfill its oversight responsibilities in the matter. After OSC issued a PPP report, the parties settled the case. In the settlement agreement, the agency agreed to give the complainant a lump sum payment, which included full back pay and compensatory damages, place him in a new position, restore his benefits, and provide him with a clean employment record.
• Complainant, a union official, alleged that he received a proposed termination after helping other union members file grievances. After finding evidence that the agency proposed his termination based on allegations previously disproved by an internal investigation, OSC concluded that the proposal could not be sustained. In a settlement agreement, the agency agreed to rescind the proposed termination, pay compensatory damages, and reassign him to a new position.
• Complainant, a program director, internally disclosed potential contract fraud and discrimination by a senior agency official. Shortly thereafter, the official proposed complainant’s demotion and five-day suspension for alleged misconduct, then placed her on a detail with highly reduced duties. OSC negotiated a stay, returning the complainant back to her original position, and in the course of its investigation, uncovered certain evidence of whistleblower retaliation. OSC brokered a settlement agreement in which the agency reduced the proposed demotion and five-day suspension to a letter of reprimand, to be removed from complainant’s file in six months. The agency also agreed to provide leadership training and to facilitate conciliation sessions between the complainant and fellow employees.
• Complainant, a manager, disclosed potential abuses of authority by his supervisors to the OIG. Shortly thereafter, the complainant’s supervisors—who were aware of his disclosures and had made statements of animus—informed him that he would lose his supervisory role pursuant to a reorganization that had taken place nearly four years prior. Although OSC’s investigation revealed that the plan to reassign complainant may have predated the whistleblowing at issue, OSC also learned that complainant had continued to do the same supervisory work for approximately a year and a half after his “reassignment” even though he had lost the title and pay. In a settlement agreement, the agency agreed to pay the complainant back pay for the time he performed supervisory duties without appropriate compensation, put him on a one-year detail with a mutually agreeable supervisor, and guarantee that the complainant would never work under certain leadership for the remainder of his time at the agency.