Was the removal fair, or was it retaliatory?

| Jan 22, 2020 | Wrongful Termination

Many federal employees are motivated largely by their devotion to the public good. They show this devotion when they choose to work for their nation instead of working in more lucrative private sector jobs. Many also show it when they report agency abuses at their own risk.

They file their reports even though they know they may face whistleblower retaliation. Such retaliation may be illegal, but it is also regrettably all-too-common. Whistleblowers may be fired, taken off key projects or shunted into dead-end career tracks. Worse yet, agencies and employers often get away with these actions by framing them as legitimate discipline. But a recent federal court ruling may give employees more power to fight back.

The three standards for whistleblower discipline

In July, the United States Court of Appeals for the Federal Circuit reversed parts of a Merit Systems Protection Board (MSPB) ruling. It concerned the firing of a General Services Administration (GSA) employee who had reached over his supervisors’ heads to blow the whistle on the agency’s failure to collect rent and manage its assets effectively. Despite the fact the employee had received mostly positive reviews, his whistleblowing led to limits on his emails and, ultimately, his firing.

The MSPB had upheld the firing because it felt the GSA had shown “by clear and convincing evidence that it would have taken the same personnel action (removal)” even without the whistleblowing. However, the federal court found the MSPB’s ruling flawed because it didn’t satisfy all three of the standards for discipline in the case of a whistleblower:

  • The agency needs to show evidence to support its decision
  • The MSPB needs to see proof that the whistleblowing did not factor into its decision
  • The agency needs to offer proof that its actions were in keeping with the discipline of non-whistleblowers

This was a notable opinion because the federal court found the MSPB had not properly explored the GSA’s motives. It wasn’t enough for the GSA to show it had reason to fire the employee. As the federal court noted:

“When whistleblowing is at issue, however, the proper inquiry is not whether the agency action is justified; it is whether the agency would have acted in the same way absent the whistleblowing.”

The GSA claimed that the employee’s repeated violations of his email restrictions were reason to fire him. But those limits may never have been put into place if he hadn’t blown the whistle.

Honesty can be hard work

Whistleblowers know how hard it can be to be honest. Still, they deserve the full protections they’re afforded under the law. It’s important they work with attorneys who fully understand the standards.

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