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NOVA Legal Beat: Whistleblower Retaliation

By ARLnow.com

Wednesday - 11/20/2013, 2:30pm  ET

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. I have a hunch that I did not get a promotion because my supervisor is upset that I reported some misspending to the inspector general. How can I prove I am the victim of whistleblower retaliation?

A. First, you need to make sure your disclosure to the office of the inspector general (OIG) was protected by the Whistleblower Protection Act (WPA), as amended by the Whistleblower Protection Enhancement Act (WPEA). The OIG is an appropriate venue for whistleblower disclosures, as is the Office of Special Counsel (OSC).

The next question is did the misspending you reported involve an actual or reasonably believed violation of law, rule, or regulation, gross mismanagement, or gross waste of funds, an abuse of authority, or a substantial and specific threat to public health or safety? If not, and you simply disagreed over how funds were being spent, the disclosure may not be protected as whistleblowing.

Next, you need to establish a nexus between the protected disclosure and the retaliatory failure to promote (or other personnel action). One way of achieving this nexus is showing that the deciding official was aware of your protected disclosure and his or her retaliatory act came within a reasonable amount of time after you made that disclosure.

In Inman v. Department of Veterans Affairs (2007), the Merit Systems Protection Board (MSPB) found this reasonable timeframe for this so-called “knowledge-timing test” to be within one year of when the deciding official became aware of a protected disclosure and when the retaliatory act occurred. It is also helpful if the employee can prove that the management official who took or failed to take, or threatened to take or fail to take, the personnel action had an actual motivation to retaliate against the whistleblower because the employee’s disclosure placed that management official at professional risk with his or her agency.

Federal employees who believe they are victims of whistleblower retaliation should immediately contact a federal employment law attorney who can help them prepare a complaint to the OSC. If the OSC declines to pursue the matter, or does not respond to the complaint within 120 days, the attorney can help the employee file and individual right of action (IRA) appeal to the MSPB.

Q. I’m a federal employee who recently received the lowest performance rating of my career. Can I challenge this poor rating?

A. Absent any allegations of retaliation for whistle blowing activity, discrimination, or other prohibited personnel practice (PPP), there is not much a federal employee can do about poor performance ratings other than rebutting or filing an administrative grievance over them. The Merit Systems Protection Board (MSPB) generally will not have jurisdiction to intervene on matters pertaining to an unsatisfactory performance rating alone.

In the federal government, a performance appraisal is considered a personnel practice. If an employee believes that an adverse appraisal is motivated by a PPP, he or she can file a complaint with the Office of Special Counsel (OSC), an inspector general (IG) complaint, or a grievance under their union’s collective bargaining agreement (CBA).

If an employee is not covered by a union CBA and merely disagrees with the accuracy of management’s appraisal of their job performance, he or she can file an administrative grievance that: 1.) shows that he or she was not placed on reasonable and accurate performance standards at the outset of the rating period; 2.) shows that he or she was not provided a reasonable time period in which to demonstrate acceptable performance; and/or 3.) rebuts management’s factual assertions of his or her poor performance with proof of its inaccuracy.

Employees may find more options if the agency proposes to remove or demote them based on the poor performance rating. Removals and demotions are adverse actions over which the MSPB has jurisdiction. An employee has the right to reply to a proposed adverse action both orally and in writing to an agency deciding official who is required to render a written decision.

If the agency sustains an adverse action, the employee can file a union grievance or an MSPB appeal. After appealing the adverse action, the employee or his or her attorney will want to double check that the performance appraisal system received the blessing of the Office of Personnel Management (OPM). The same goes for making sure the system was in place for the requisite 90 days and employees were properly notified about it.

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