MSPB

When a federal agency takes an adverse action against a non-probationary federal employee, it must follow basic due process requirements.  The ultimate adverse action is subject to being reversed by the Merit Systems Protection Board (MSPB) if due process is not followed.  The basic requirements are that non-probationary employees must be provided at least 30 days’ advance written notice of the adverse action as a proposed adverse action unless the “crime provision” exception applies.  Adverse actions are generally defined as a suspension for more than 14 days, a demotion or a removal from federal service.

When such an adverse action is proposed, the agency must state the specific reasons for the adverse action in the notice, and the employee must be given an opportunity to review any and all materials relied on in proposing the action.  During the advance notice period, the employee must be given an opportunity to respond, both orally and in writing to the proposal notice, and present additional information, including affidavits.

The agency’s deciding official must consider only the reasons stated in the proposal notice, and the employee’s reply.  If the agency considers any additional information in reaching the adverse action decision, there is a likely due process violation and the action may be reversed in an appeal filed with the MSPB.  Additional new information that relates either to the charged misconduct or to aggravating factors supporting an enhanced penalty could be determined by the MSPB to be constitutionally impermissible if the employee did not have a chance to respond to that information.

If the MSPB concludes that due process was not followed, the Board can reverse the action, and the employee would be entitled to a new and constitutionally correct proceeding.

Federal employees are protected from retaliation for protected whistleblowing activity.  But what evidence do you need to support a whistleblower retaliation case?  A recent decision by the Federal Circuit helps clarify what evidence should be reviewed.

What is Whistleblowing?

Whistleblowing means disclosing information that an employee or applicant reasonably believes evidences a violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.

Whistleblower Protection Act

In 1989, Congress enacted the Whistleblower Protection Act, which, among other provisions, prohibits retaliation for whistleblowing.  See 5 U.S.C. § 2302(b)(8).  In order for an employee or applicant to prove retaliation for whistleblowing, the courts have employed a burden-shifting scheme, where the employee or applicant must prove by a preponderance of the evidence that he or she made a protected disclosure that was a contributing factor in the personnel action threatened, taken, or not taken against the employee or applicant.  If the employee or applicant is able to establish that the protected disclosure was a contributing factor, the Merit Systems Protection Board (“MSPB”) will order corrective action unless the agency can demonstrate by clear and convincing evidence that it would have taken “the same personnel action in the absence of such disclosure.”  5 U.S.C. § 1221(e).  The clear and convincing standard of proof is higher than the preponderance of the evidence standard.

Under Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir. 1999), the MSPB must weigh three factors in making a determination whether an agency has met the clear and convincing standard of proof: (1) the strength of the agency’s evidence in support of its personnel action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision; and (3) any evidence that the agency takes similar actions against employees who are not whistleblowers.

Whitmore Decision

In a recent case, the United States Court of Appeals for the Federal Circuit, the court stated that “[e]vidence only clearly and convincingly supports a conclusion when it does so in the aggregate considering all the pertinent evidence in the record, and despite the evidence that fairly detracts from that conclusion.”  Whitmore v. Department of Labor, No. 2011-2084 (Fed. Cir. May 30, 2012).

In Whitmore, the Federal Circuit reviewed an appeal from a former employee who challenged the Department of Labor’s decision to remove him for his allegedly disruptive and insubordinate behavior.  The MSPB affirmed the agency’s removal decision, and held that the employee did not prove his affirmative defense that the removal constituted unlawful retaliation for making protected disclosures.  The Federal Circuit reversed the MSPB decision, and remanded the case for further fact finding.

The court stated that the MSPB excluded or ignored evidence offered by the employee that was necessary to adjudicate his claim of whistleblower retaliation.  Specifically, the MSPB failed to evaluate all the relevant evidence in the aggregate, as the MSPB focused solely on the evidence that supported the agency’s removal decision.  The court also found that the MSPB erred when it excluded witnesses from the hearing who could have supported the employee’s claim of whistleblower reprisal.  And the court found the MSPB’s interpretation of “similarly situated” employees who were not whistleblowers to be unduly restrictive, as the required degree of similarity between employees cannot be read so strictly that the only evidence helpful to the inquiry is completely disregarded.

The court reaffirmed the vital role that whistleblowers play in society and the critical need to protect them:

“Congress decided that we as a people are better off knowing than not knowing about such violations and improper conduct, even if it means that an insubordinate employee like Mr. Whitmore becomes, via such disclosures, more difficult to discipline or terminate.  Indeed, it is in the presence of such non-sympathetic employees that commitment to the clear and convincing evidence standard is most tested and is most in need of preservation.”

The attorneys at Kator, Parks & Weiser have extensive expertise in representing federal employees who allege retaliation for making protected whistleblowing disclosures.  Contact us today for a free consultation.

Congress specifically focused on eliminating coerced political activity in structuring the federal civil service system. United States Code, Title 5, Section 2302(b) says that federal employees are protected against “coercion for partisan political purposes.” This protection extends to most employees and applicants for employment in Executive Branch agencies.

There are two procedural circumstances in which the prohibited personnel practice (“PPP”) of coerced political activity can be asserted by an employee: as an affirmative claim or as a defense to an adverse action.

Affirmative Claim to OSC

If a federal employee or applicant believes that a PPP has occurred, the employee may file a complaint with the U.S. Office of Special Counsel (“OSC”). OSC may investigate and prosecute coerced political activity under both the PPP provision of Title 5 and the Hatch Act.

After receiving a complaint of coerced political activity, OSC will conduct an investigation into the allegation. The investigation may include a review of records and interviews of the complaining employee and witnesses. Based on OSC’s investigation, OSC can seek corrective action, disciplinary action, or both. If an agency refuses to take action recommended by OSC, the matter can be brought before the MSPB.

With an affirmative claim of PPP coerced political activity (where the MSPB would not otherwise have jurisdiction over the claim), individual employees or applicants cannot bring a legal claim on their own behalf. The claim can only be brought before the MSPB by OSC.

As Defense to Personnel Action

An employee subject to an adverse action over which the MSPB has jurisdiction may claim that coerced political activity was a motivating factor in the agency’s action. For example, employees have claimed that termination actions were motivated by the employees’ refusal to engage in coerced political activity. OSC has the authority to delay an agency’s proposed personnel action if the action resulted from coerced political activity. If coerced political activity is raised as an affirmative defense in an MSPB appeal of an adverse action, the employee must produce evidence to support the claim.

If you have been subjected to coerced partisan political activity, contact KPW today to discuss your legal options.