Mon, 05/17/2021
On May 7, 2021, the U.S. Court of Appeals for the Federal Circuit reinstated part of a federal employee’s whistleblower complaint. The appellate court found that a Merit Systems Protection Board (“MSPB”) administrative judge had wrongly concluded that numerous actions taken by the employee were not protected under the Whistleblower Protection Act (“WPA”).
The WPA protects two main categories of actions. First, it protects employees when they make disclosures of activities that they reasonably believe violates laws, rules, or regulations, gross waste, gross mismanagement, or abuse of authority. Second, the WPA protects employees when they (1) file complaints regarding violations that can form the basis for protected disclosures, (2) testify for or assist other employees in their own complaint, or (3) cooperate with an Inspector General, the OSC, or other investigative agency.
The employee, Dr. Debra Tao was a Pharmacy Program Manager at the Department of Veterans Affairs, Greater Los Angeles Health Care System Pharmacy Service for 30 years. She filed a prohibited practice complaint with the VA Office of Special Counsel (“OSC”) alleging several acts of retaliation in violation of the WPA, including a three-day suspension, detail to a staff pharmacist position, a proposed removal letter, and failure to provide a performance rating. After the OSC closed its investigation, Dr. Tao filed an individual right of action (“IRA”) appeal with the MSPB. The appeal alleged that Dr. Tao engaged in sixteen actions protected by the WPA that served as the basis for the Agency’s retaliatory actions.
An MSPB administrative judge concluded that Dr. Tao’s actions were not protected by the WPA. MSPB conceded that the administrative judge’s ruling was erroneous, in part, because the judge wrongly rejected several protected activities alleged by Dr. Tao, including writing a letter to U.S. Senator Dianne Feinstein about improprieties on the part of her supervisors, participating in activities related to Equal Employment Opportunity matters, and providing written testimony in an MSPB appeal of another employee’s removal.
For these reasons, the Federal Circuit reversed the administrative judge on seven of the judge’s findings that various activities were not protected by the WPA and vacated and remanded the judge’s ruling with respect to the other nine alleged protected activities, ordering the MSPB to reassign the matter to a different administrative judge for further proceedings.
For more information on the protections available to federal employees, visit https://www.mselaborlaw.com/practice-areas/workplace-protections-federal-employees. If you believe you have been retaliated against for taking action protected by the WPA, contact MSE at fedworkers@mselaborlaw.com.
