shaw bransford & roth case law update

Board Denies Army Appeal of Whistleblower Reprisal Holding

A former Army Diagnostic Radiologic Technologist was removed from her position on April 5, 2012, based on 25 specifications of Conduct Unbecoming a Federal Civilian Employee.

She appealed to a Merit Systems Protection Board administrative judge and raised the affirmative defense of retaliation for whistleblowing, among several other affirmative defenses. An administrative judge sustained the charge of Conduct Unbecoming, but only sustained 10 out of the 25 specifications, and of those 10, five specifications were only partially sustained. The administrative judge also found that the employee had established her claims of retaliation for whistleblowing and retaliation for union activity, and reversed the removal. The agency appealed the administrative judge’s initial decision to the full Board. On November 2, 2015, the Merit Systems Protection Board affirmed the initial decision, and ordered the agency to cancel the removal and retroactively restore the employee.

Although the agency argued that reporting a supervisor’s harassment to the Inspector General is not protected by the Whistleblower Protection Act, the Board found that none of the agency’s citations involved allegations of harassment by a supervisor. The Board stated that harassment by a supervisor may constitute an abuse of authority, and “abuse of authority” is one of the enumerated types of disclosures that can legally constitute a whistleblower disclosure protected by the WPA. The Board also found that, even if the employee’s supervisor was not harassing her, the employee had a “reasonable” belief in the truth of her allegation. That reasonable belief, the Board found, was supported by the fact that her supervisor placed her on a retraining program that some evidence showed was “unjustified,” as well as a negative performance evaluation that was successfully challenged, and the belief of several other employees that the employee was being harassed.

The agency argued that the employee was self-interested and potentially biased when she made the disclosures of abuse of authority due to her anger regarding the training program and performance evaluation. The Board observed that “it is obvious that the [employee] could not have disclosed the alleged harassing actions until after they had taken place. Further, while motive may be relevant to the determination of a reasonable belief, a disclosure is not excluded from protection based on an [employee’s] motive in making it.”

The Board noted that in order for an employee to prevail on a claim under the WPA, an employee must “prove by preponderant evidence that her protected disclosures were a contributing factor in a personnel action.” According to the Board, the employee was able to do so under the “knowledge/timing” test, since the proposed removal took place slightly more than a year after the protected disclosure and the agency had knowledge of the employee’s IG complaint.

Because the employee proved her prima facie case of whistleblower reprisal, the burden shifted to the agency to prove by clear and convincing evidence that it would have removed the employee in the absence of the IG complaint. The Board found that the strength of the agency’s evidence was lacking, and that “the agency’s failure to prove a majority of the specifications is a sign of overreach.” The Board also found that the employee’s supervisor had “a strong motive to retaliate against [the employee]” after the employee alleged that the supervisor was harassing her, and that the employee sufficiently established that the proposing and deciding officials, whose management capacity was poorly reflected upon by the allegations, had a substantial retaliatory motive. The Board noted that there was also no evidence that the agency had removed other employees who were not whistleblowers but were similarly situated otherwise.

Because the Board found that the removal action must be reversed based on the agency’s violation of 5 U.S.C. § 2302(b)(8), the Board did not discuss whether the administrative judge was also correct in finding that the employee’s removal “was also the result of result of reprisal for her union activity.”

For the above stated reasons, the Merit Systems Protection Board denied the agency’s petition for review, affirmed the administrative judge’s initial decision, and ordered the agency to cancel the employee’s removal.

Read the full case: Ayers v. Department of the Army

This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

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