Federal Whistleblower Retaliation

Introduction

“An agency official shall not retaliate against an employee for whistleblowing.” 5 U.S.C. § 2302(b)(8).

If you are a federal employee, you have much stronger protection from retaliation due to blowing the whistle than your private employee counterparts.  While private employees are protected only for blowing the whistle on violations of certain laws, federal employees are protected if they blow the whistle on a violation of any law, rule, regulation, and more.  The federal government gives the Office of Special Counsel authority to investigate both whistleblower allegations and allegations of whistleblower retaliation.  Similar to retaliation for taking part in EEO activities, a whistleblower complaint will need to meet three basic requirements: first, that the employee made a protected disclosure; second, that the employee suffered a prohibited personnel activity; and third, that there is a connection between the two.

Protected Disclosure

The first thing any federal employee needs to check is whether their disclosure is protected.  This is a pretty broad standard:

“The employee must have disclosed what he or she reasonably believes to be:
– a violation of law, rule, or regulation;
– gross mismanagement;
– gross waste of funds;
– an abuse of authority; or
– a substantial and specific danger to public health or safety.”
 OSC.gov.

There is also no specific requirement stating to whom you must blow the whistle.  While you can contact OSC directly, contacting your management chain is also considered acceptable.  You don’t need to use any magic keywords like “whistleblower” and you can use verbal or written communication.  Keep in mind that your management chain may “not recall” you informing them of a disclosure – so having a paper trail is preferred.

Prohibited Personnel Activity

The OSC is much more stringent on this definition than what you find with EEOC retaliation.  The specific “13 PPPs” are codified in a list:

“(i) an appointment;
(ii) a promotion;
(iii) an action under chapter 75 of this title or other disciplinary or corrective action;
(iv) a detail, transfer, or reassignment;
(v) a reinstatement;
(vi) a restoration;
(vii) a reemployment;
(viii) a performance evaluation under chapter 43 of this title;
(ix) a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other action described in this subparagraph;
(x) a decision to order psychiatric testing or examination;
(xi) the implementation or enforcement of any nondisclosure policy, form, or agreement; and
(xii) any other significant change in duties, responsibilities, or working conditions;”  
5 USC § 2302(a)(2)(A).

There is some room for interpretation here, but not much.  If you believe that you may meet these two requirements, the only requirement left is that there is a connection between these first two elements.

Causal Relationship

Think of this as simple cause and effect – you need to show that the cause was your protected disclosure, and the effect was a PPP.  The first thing that requires is showing that whomever gave you the PPP was effected by your protected disclosure.  The second thing you’ll need to show is similar to retaliation – either that a direct “smoking gun” link exists between the two proving cause-and-effect, or that the timing is so fishy that it is obvious to a reasonable person that the two events must be connected.  This third prong is where having an attorney who is knowledgeable about MSPB case law and OSC standards becomes key.  The Agency will have their attorneys working to ensure that this third prong is not proven by applying legal standards and case law – you will very likely need the same on your side.

Should I Hire a Lawyer?

I recommend hiring a lawyer the moment you believe whistleblower retaliation has occurred.  Though unlikely due to the sheer number of cases filed, the OSC may be willing to take your case pro bono (at no cost to you) after you file your whistleblower complaint.  Having an attorney draft this complaint is therefore key in showing the OSC that your case should be taken.  Failing that, the MSPB whistleblower retaliation process is exactly like a court case, right down to being able to subpoena witnesses and issue court orders.  Wading through these legal procedures alone will warrant hiring an attorney to help you, as making a procedural mistake could mean the end of your case.  Knowledge of MSPB procedure and case law is different than knowledge of procedure and case law in the federal courts, state courts, or even the EEOC.  Be sure to hire an attorney who understands these critical differences.  If you believe you are a victim of whistleblower retaliation, contact us today.