MSPB: Cat’s Paw Doctrine Protects Federal Whistleblowers

The Merit Systems Protection Board (MSPB) adopted the U.S. Supreme Court’s 2011 formulation of “cat’s paw” liability to find that the Transport Security Administration (TSA) acted illegally when it fired an employee who blew the whistle on lax airport security measures.

The MSPB’s decision in Aquino v. Department of Homeland Security was its first formal application of the cat’s-paw doctrine to the Whistleblower Protection Act (WPA), which forbids retaliation against whistleblowers working for the federal government. Previous board decisions had reached a similar result using a different theory; the switch should help MSPB actions to survive appeal in federal court.

The MSPB is an administrative body that enforces laws and other rules that protect federal workers.

Under cat’s-paw doctrine, courts may hold an employer liable for retaliation against its employee even if the actual decision-maker was unaware of a retaliatory motive. The reference comes from folklore: A monkey cons a cat into pulling chestnuts from a fire — its uses the cat’s paw to do its dirty work. In Staub v. Proctor Hospital, the Supreme Court said that employers may be found responsible for the monkey’s bad intent, even if the decision-maker has been duped like the cat.

Staub covered retaliation under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), which protects employees against discrimination for their military service, but its logic has spread quickly to other statutes and jurisdictions.

In this case, the MSPB found that TSA employee Carlos Aquino was wrongfully fired after he shared concerns about changes his supervisor had made to the security-screening line at Luis Muñoz Marin International Airport in San Juan, Puerto Rico. Six days after these complaints, Mr. Aquino’s supervisor — the “monkey” in this case — recommended to superiors that Mr. Aquino be fired for inattention to duty and failure to follow procedures.

The TSA claimed it would have fired Mr. Aquino entirely apart from his supervisor’s motives, but the MSPB upheld earlier rulings in Mr. Aquino’s favor, saying that the TSA “has failed to meet the high burden of proving by clear and convincing evidence that it would have removed” him anyway.

In applying Staub, the board noted that it’s much easier to prove cat’s-paw retaliation under the WPA than under USERRA, especially since the WPA was amended by the Whistleblower Protection Enhancement Act of 2012. The amended WPA doesn’t require require retaliation to be a determinative factor in an illegal adverse action, the MSPB explained — just a contributing factor.

An employee who appeals an adverse action “can demonstrate [such illegal contribution] by showing by preponderant evidence that an individual with knowledge of the appellant’s protected disclosure influenced the deciding official accused of taking the personnel action,” the board said. Even an independent investigation may not get the employer off the hook, it added, unless it can justify the adverse action on unrelated grounds.

The MSPB ordered the TSA to reinstate Mr. Aquino with back pay, interest, and other benefits, and invited him to claim other costs and damages to which he might be entitled.

Tagged: P.C., The Employment Law Group, P.C., Whistleblower Laws (Federal), Whistleblower Protection Act (WPA)