Testimony Supporting Another Employee in AIB Interview is Not Protected
On June 17, 2016, the Merit Systems Protection Board held that an appellant’s testimony during an Administrative Investigation Board (“AIB”) investigation is not protected activity under 5 U.S.C. § 2302(b)(9)(B), which protects agency employees that testify or lawfully assist individuals in the exercise of appeal, complaint, or grievance rights.
The employee, a Biological Science Lab Technician with the Department of Veterans Affairs, filed an Individual Right of Action Appeal with the Board after he was terminated due to a lack of work available in the agency’s Research Service. The employee disputed the agency’s rationale for his termination in his Board appeal, arguing that his termination was retaliatory in nature, and that the agency had terminated him because of his testimony before an Administrative Investigation Board (“AIB”) in support of a lead researcher being investigated for misconduct.
After the agency filed a motion to dismiss the appeal for a lack of jurisdiction, and after the employee filed responses to the agency’s motion, the administrative judge found that the Board did not have jurisdiction over the appeal because the employee “failed to nonfrivolously allege that he engaged in the protected activity of testifying for or otherwise lawfully assisting any individual in the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation.” Specifically, the administrative judge held that the employee’s AIB testimony in support of his lead researcher did not involve protected activity under 5 U.S.C. § 2302(b)(9)(B) because it was not provided pursuant to an appeal, complaint, or grievance right that had been exercised by the lead researcher.
The employee appealed the administrative judge’s decision to the full Merit Systems Protection Board, and on appeal to the full Board, the employee claimed that “consistent with the purposes of the [Whistleblower Protection Act] and the Whistleblower Protection Enhancement Act of 2012 (WPEA), his testimony during the AIB investigation is protected activity that can form the basis of a retaliation claim." According to the employee, reading the Whistleblower Protection Act broadly in order to protect his AIB testimony would be “consistent with the Act’s purposes of strengthening and improving protection of Federal employees who are willing to criticize Government managers and encouraging employees to disclose Government problems.” The employee asked that even if the Board does not believe the statute covers his testimony during the AIB investigation, the Board should go beyond the “literal language” of the statute if reliance on that language would “defeat the purpose of the statute.”
The Board analyzed the statute under the legal maxim of expression unius est exclusion (“the expression of one thing is the exclusion of the other”), meaning that the specificity of certain protected activities in the statute implies the exclusion of other activities that were not mentioned in the statute. The Board found that the AIB investigation at issue did not constitute the exercise, by the lead researcher, of an “appeal, complaint, or grievance right.” Instead, the Board found that the lead researcher was merely the subject of an “agency-initiated investigation.” Because Section 2302(b)(9)(B) applies to testifying for or otherwise lawfully assisting any individual in the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation, and the specific mention of these types of activities implies the exclusion of others, the Board found that the employee’s testimony in support of the lead researcher was not protected.
The Board also looked to pre-WPEA case law, like Spruill v. Merit Systems Protection Board, 978 F.2d 679, 690 (Fed. Cir. 1992), which viewed reprisal in violation of Section 2302(b)(9) as “reprisal based on exercising a right to complain.” Specifically, the Board found in Von Kelsch v. Department of Labor, 59 M.S.P.R. 503, 505-06 (1993), that the exercise off any appeal, complaint, or grievance right in this context is an “initial step toward taking legal action against an employer for the perceived violation of an employee’s rights.” In this case, the Board found that the employee’s testimony in support of the lead researcher did not constitute an initial step toward a taking legal action against the agency for a perceived violation of his employment rights, as the administrative investigation was merely a fact-finding conducted in order to collect and analyze evidence. The Board therefore determined there was no evidence in agency regulations that an AIB investigation is an initial step of the kind described in Von Kelsch.
The Board also found that absent any clearly expressed legislative intent indicating that testifying for or otherwise lawfully assisting an individual during an agency investigation constitutes protected activity under section 2302(b)(9)(B), the Board is not permitted to create new remedies that employees believe Congress may have overlooked.
For the above stated reasons, the Merit Systems Protection Board affirmed the administrative judge’s decision to dismiss the employee’s appeal for lack of jurisdiction.
Read the full case: Graves v. Department of Veterans Affairs
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