Retaliation cases are often complex because of the inherent contradiction of the situation, where an employee is punished ostensibly for some legitimate disciplinary reason, but in fact, is being punished because a supervisor or manager, in essence, decides to “get even” with the employee, often for entirely personal reasons.
For employees, the experience can become a horrific hall-of-mirrors, where they are subjected to adverse job actions or disciplinary proceedings at virtually every turn. In a recent case, an investigator from NOAA was instructed investigate a fellow employee of NOAA. This was request was outside the job description of the position. The investigator was later denied a promotion, purportedly due to his conferring during the investigation with the FBI and U.S. Attorney’s Office.
It became a case of retaliation, because the supervisor who had assigned the employee to the investigation was wrong, and was apparently embarrassed to have his motives examined for the denial examined.
The case moved from the Office of Special Counsel, to the Merit Systems Protection Board (MSPB), on to a three-member panel of the MSPB and back to an administrative law judge. The ALJ eventually ruled in favor of the employee, based on the retaliatory motive by the supervisor who attempted prevent repercussions as to his incorrect managerial decision.
If you feel you have been assigned a task that is outside your job description or otherwise inappropriate, you may be in an uncomfortable position, and failure to comply with a management demand may be seen as insubordination.
You may wish to consult with an employment attorney on these matters, as it may be important for your federal career to “thread a needle,” carefully act, and document all communication and interaction with your supervisors on this issue.
Source: MSPBwatch.com, “Corrective Action Ordered in Retaliation Case of NOAA Whistleblower Held Accountable for Assignment Given in Error,” February 24, 2014