MSPB Holds that Hostile Work Environment is an Adverse Action under the Whistleblower Protection Act

October 13, 2015

On September 3, 2015, in Savage v. Dep’t of the Army, the Merit Systems Protection Board held that the creation of a hostile work environment is a prohibited personnel action under the Whistleblower Protection Act.  The Board, in Savage, remanded an initial decision in part because the administrative judge did not consider creation of a hostile work environment a prohibited action under the WPA.

The Whistleblower Protection Act provides relief to federal whistleblowers who 1) disclose activity they reasonably believe is a violation of law, rule, or regulation, and 2) experience a prohibited personnel action as a result.  The WPA defines twelve prohibited personnel actions, including termination, demotion, and transfer.  The twelfth is a catchall for “any other significant change in duties, responsibilities, or working conditions.”  The Savage decision placed hostile work environment claims within this category of prohibited personnel actions.

Tommie Savage was a supervisory Contract Specialist with the U.S. Army Engineer and Support Center in Huntsville, Alabama who received excellent performance ratings throughout her time in the job.  Savage reported activities she believed to be illegal, and her disclosures led to a May 24, 2007 internal audit that the MSPB found validated her concerns.

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DOJ Report Recommends New Protection for FBI Whistleblowers; and DOJ Implements Recommendations

January 13, 2015

The Department of Justice recently released recommendations from a report by the Attorney General that reviewed protections for FBI whistleblowers. The DOJ has already begun implementing the recommendations and will implement additional changes over time. Specifically, the report proposes the following changes:

– Provide voluntary alternative dispute resolution in FBI whistleblower cases
– Award compensatory damages for retaliation
– Expand the list of persons to whom a protected disclosure may be made
– Report findings of wrongdoing to the appropriate authority
– Provide authority to sanction violators of protective orders
– Expedite the OARM process through the use of acknowledgement and show cause orders
– Equalize access to witnesses
– Expand resources for OARM to reduce the time needed to adjudicate FBI whistleblower cases
– Publish decisions with appropriate redactions
– Publish annual reports to be submitted to the President

Senators Grassley and Wyden, who initially inquired about the Attorney General’s report in August 2014, have generally endorsed the new FBI whistleblower protection recommendations and are optimistic that the recommendations will provide better protection for whistleblowers. The recommendations and changes reflect a need to pay special attention to whistleblowers who have access to classified information and to ensure that they are protected under the law.

Justices Balk at Regulatory End Run Around the WPA

November 04, 2014

NOTE: A version of this post first appeared on Law360.com. The author, R. Scott Oswald, is managing principal of The Employment Law Group, P.C.

Here’s the problem with telling the justices of the U.S. Supreme Court that they’re wrong: They always get the last word.

And the last word in Department of Homeland Security v. MacLean — based on today’s oral arguments in the case, at least — now seems likely to be a rejection of the Obama Administration’s contention that federal agencies may strip employees of their rights under the Whistleblower Protection Act of 1989 (WPA) simply by issuing regulations that forbid certain types of disclosure.

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Supreme Court Weighs Scope of Whistleblower Protection Act

October 29, 2014

The U.S. Supreme Court next week will hear arguments in Department of Homeland Security v. MacLean, a case that could determine whether government officials are free to punish whistleblowers who disclose information that’s been labeled as “sensitive” — even if the information was never listed for protection by any law.

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MSPB: Cat’s Paw Doctrine Protects Federal Whistleblowers

April 10, 2014

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.

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Obama Administration Asks Supreme Court to Review MacLean Decision

January 31, 2014

The Obama administration asked the U.S. Supreme Court to review a lower court’s 2013 ruling that a former federal air marshal could claim he was illegally fired for leaking sensitive information to the media.

The case, MacLean v. Department of Homeland Security, raises technical — but critically important — questions about the scope of the Whistleblower Protection Act (WPA), which forbids most retaliation against federal employees who disclose suspected illegal or dangerous acts by the government.

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MSPB: New Whistleblower Standard Applies to Pending Cases

June 27, 2013

The U.S. Merit Systems Protection Board (MSPB) ruled that a key provision of the Whistleblower Protection Enhancement Act (WPEA) should apply retroactively to any federal whistleblower case that was pending on the effective date of the statute: December 27, 2012.

The decision in Day v. Department of Homeland Security—which the MSPB said would affect a “substantial number” of cases—concerned Section 101 of the WPEA, which offers protection to federal employees who face retaliation for disclosing government wrongdoing under certain circumstances.

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Senate Approves Stronger Whistleblower Protection for Federal Employees Who Expose Government Wrongdoing

November 27, 2012

On November 13, 2012, the Senate voted in favor of the Whistleblower Protection Enhancement Act (WPEA), S. 743/H.R. 3289, a piece of legislation that would provide federal whistleblowers with stronger protection from retaliation. Overall, this bill will close many gaps in the existing law, providing additional protection to those who expose fraud, waste, abuse, and illegal activity in the federal government.

Specifically, WPEA will close loopholes which currently allow agencies to protect only the first employee who reports government misconduct and allow agencies to retaliate against reporting employees if the misconduct falls within their job duties. This bill also modifies the standards an employee must meet in order to make a disclosure to only require “reasonable belief” of misconduct.  Additionally, government scientists and Transportation Security Administrative employees will be provided with whistleblower protection, and compensatory damages will be provided to whistleblowers that prevail after an administrative hearing.

The Office of Special Counsel (OSC), which would enforce WPEA, praised the Senate’s vote and has stated that this bill will “provide OSC with all the tools it needs to effectively fulfill its mission to protect employees from unlawful retaliation.”

After over a decade of being pushed through Congress, this bill was presented to President Obama on November 16, 2012 to be signed into law.

The Employment Law Group® law firm has an extensive nationwide whistleblower practice representing employees who have been victims of retaliation.

OSC Successfully Completed Mediation for Border Patrol Whistleblower

November 15, 2012

The Office of Special Counsel (OSC) has announced that it successfully completed its fourth mediation in the month of October. OSC mediated between Border Patrol agent Christian Sanchez and the U.S. Border Patrol’s Port Angeles Station in the state of Washington after Sanchez filed a Whistleblower Protection Act complaint.

Sanchez alleges that the U.S. Border Patrol in Port Angeles Station harassed and retaliated against him when he refused to receive overtime pay for work he never performed. According to his lawsuit, the Port Angeles Station employed over forty individuals. However, Sanchez states that there was an insufficient amount of work to perform so agents would pass time by taking daylong coastal drives and allegedly harassing local minorities. When Sanchez took a stand and refused to accept taxpayers’ money for work he did not perform, the Port Angeles Station denied him meaningful work and stripped him of his duties as an agency chaplain.

Upon filing his complaint in January 2012, Sanchez chose to seek mediation as a first option. OSC’s San Francisco office handled his case. As a result of mediation, the U.S. Board Patrol must reassign Sanchez a new post of his choosing, clear his personnel record, and restore his eligibility for chaplain duties.

Special Counsel Carolyn Lerner stated:

“Mr. Sanchez showed courage by speaking out… I commend both him and the U.S. Customs and Border Protection for resolving their differences through mediation.”

The Employment Law Group® law firm has an extensive nationwide whistleblower practice representing employees who have been victims of retaliation.

Law360 Interviews R. Scott Oswald, Managing Principal of The Employment Law Group®, on the Potential Impact of the Senate-Approved Whistleblower Protection Enhancement Act (WPEA)

May 16, 2012

R. Scott Oswald, managing principal of The Employment Law Group® law firm, was recently interviewed by Law360 regarding the Whistleblower Protection Enhancement Act (WPEA), which the U.S. Senate unanimously passed last week.

If also passed by the U.S. House of Representatives, the WPEA would expand whistleblower protections against retaliation by making it easier for whistleblowers to claim protected status, by eliminating the Federal Circuit’s exclusive appellate jurisdiction over certain whistleblower cases for a period of five years, and by allowing jury trials under certain circumstances for employees who sue agencies that retaliate against whistleblowers.  Additionally, if enacted, the WPEA would extend whistleblower rights to approximately 40,000 airport baggage screeners.

Since 1994, whistleblowers have only prevailed in 3 out of 220 retaliation lawsuits heard by the Federal Circuit.  According to Mr. Oswald, “The Whistleblower Protection Enhancement Act takes direct aim at the Federal Circuit precedents by [extending] protection to several new classes of employees, including employees of the Transportation Security Administration and intelligence agencies”.

“This is a critical reform,” Oswald stated, “Whistleblowers will know their disclosures won’t be held against them if they come forward with that information in good faith.”

Oswald also emphasized that the WPEA would “restore protections intended by the original Whistleblower Protection Act by protecting communications related to an employee’s official duties and communication with supervisors.”  This, according to Oswald, “[could] help agencies deal with fraud or other problems internally”.

“We want individuals to make disclosures at the lowest possible level and not feel like they have to file a complaint with the inspector general in every instance,” Oswald said.

Finally, Oswald noted, the law would also “expressly prohibit relocation or revoking an employee’s security clearance as retaliation for blowing the whistle, which can amount to retaliatory firing by other means for some employees.”

The article, entitled “Senate Bill Would Boost Whistleblowers’ Chances In Court”, appeared in the May 15, 2012 edition of the web-based legal news service, Law360.