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Lessons from a whistleblower claim before the MSPB, part 2

On Behalf of | May 23, 2022 | Federal Employment Law, MSPB, Whistleblower Protection

In part 1 of this post, we told readers about the April 13 Merit Systems Protection Board (MSPB) opinion in Smith v. Department of the Army. The board found in favor of a whistleblower who had publicized that military morticians had sent her late husband’s cremated remains to a Virginia landfill. He had served in the Army as a sergeant and died in action in Iraq.

As we explained in part 1, the MSPB held that the Army had wrongly retaliated against Smith, a Navy employee, when it did not hire her for a position in retaliation for her publicly discussing the disposition of her husband’s remains. The written opinion illustrates several building blocks of whistleblower protection for federal employees.

Basically, the concept of whistleblowing involves an employee or job applicant who alleges something illegal or unethical that their employer did or allowed to happen in the workplace. In retaliation, the employer takes a negative employment action against the whistleblowing employee such as denying promotions or raises, termination, falsely negative performance reviews or other, similar actions that hurt the whistleblower. The employee has legal protection in this scenario and the employer may be liable for the harm.

Protected disclosures

In a whistleblower claim, a federal employee must show either that she made a “protected disclosure” or engaged in protected activity. A protected disclosure is one the employee made with the reasonable belief that the information shared “evidences a violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety,” according to the MSPB opinion.

The MSPB said that Smith’s public disclosures about the military’s funereal practices were protected disclosures. Specifically, the practice violated a Department of Defense (DoD) directive that military remains must be “handled with the reverence, care, and dignity befitting them …” It would also have been enough that Smith or any “disinterested observer” could have reasonably thought the practice must violate SOME legislation or regulation.

Contributing factors

To get whistleblower protection, the protected disclosure or activity had to be a “contributing factor” in the employer’s negative action against the employee, simply meaning it affected the employer’s personnel action. The MSPB explained that the most common way to prove this is through the “knowledge/timing test,” which Smith did.

To satisfy this test, the employee can show that the employer actually knew about the disclosure or action and “took the personnel action within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action.”

Uncontested evidence showed that federal agency officials responsible for the hiring decision at issue had known that Smith had spoken out publicly against the controversial practice for over a year before they rejected her application for the position. This was a sufficiently short time to satisfy the knowledge/timing test, meaning that the disclosure was a contributing factor in the negative personnel action.

Would the agency have made the same decision without the protected disclosure?

At this point, the agency employer can prove it would have taken negative action even without the whistleblowing having been a contributing factor. The MSPB decision discussed the “Carr factors” (outlined in Carr v. Social Security Administration) that the board analyzes to answer this question.

Under Carr, the MSPB concluded that the agency failed to prove it would not have hired her anyway, even without the disclosure:

  • No legitimate reasons existed for not hiring Smith. The agency presented testimony that it did not hire her because she had problems getting along with others, but her written performance reviews contained opposite conclusions.
  • Even though it was the Air Force that dumped the remains, the Army officials that did not hire Smith could have had retaliatory motive since the disclosures could “[reflect] poorly” any branch of the DoD as an institution.
  • The Army presented no evidence of how it treats “similarly situated nonwhistleblowers.”

Because the agency did not prove it would not have hired Smith even without the protected disclosures, she became eligible for “corrective action.”

Corrective actions

To correct the wrongful failure to hire Smith, the MSPB ordered that the Army give her the executive assistance job for which she had applied as well as back pay, interest and other benefits she missed.








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