Potentially adding a new layer to a well-recognized legal rule, the
Merit Systems Protection Board (MSPB) ruled in November that a
federal employee could come under the safe haven of the Whistleblower Protection Enhancement
Act (WPEA) for making disclosures stemming from disciplinary actions taken
It has long been held that the
WPEA (and the Whistleblower Protection Act (WPA) before that), protects a federal
employee who is retaliated against based on the perception that she made
disclosures which would have been protected under the law.
This is so even if the allegations do not actually rise to the level of
those protected, or if protected disclosures are not actually made, but
are just perceived to have been made. Yet this usually becomes an issue
when disclosures, or perceived disclosures, initially involve allegations
of wrongdoing which have not just impacted the federal employee making
the disclosure, but rather the broader management or governance of the Agency.
In November, the MSPB heard the case of Margaret Reed, a federal employee
with the Department of Veterans Affairs, who through her attorneys familiar
with federal employment issues, convinced the Board that she may have
been retaliated against based on perceived whistleblowing after she filed
grievances over a letter of admonishment issued to her and, disillusioned
with the grievance process, voiced her concerns to the Director of the
After having an admonishment placed in her file for disrespectful conduct
towards her supervisor, Ms. Reed went through the grievance process, having
her informal and formal grievances denied. Ms. Reed then emailed the Medical
Center Director, asking to discuss what she called “the futile grievance
process”, which Ms. Reed alleged included the denial of her due
process rights. The Chief of the VA and the Assistant Chief threatened
discipline and, about two months after Ms. Reed met with the Director,
the Chief suspended Ms. Reed for 3 days, citing complaints about her performance.
Additionally, Ms. Reed’s admonishment, which could have been removed
from her file, remained.
Ms. Reed filed a complaint with the Office of Special Counsel (OSC), alleging
that these and other acts amounted to violations of the WPEA. When the
OSC did not resolved the situation, Ms. Reed brought an individual right
of action (IRA) to the MSPB. A MSPB administrative judge dismissed the
case for lack of jurisdiction, finding that Ms. Reed failed to make a
nonfrivolous allegation that she made a protected disclosure and that
her grievance was not itself protected.
On appeal, the MSPB held that Ms. Reed failed to show that the content
of any of her disclosures had actually contributed to the adverse personnel
actions taken against her, but f
ound that the WPEA could still protect her because the Chief and Assistant
Chief of the VA may have acted against her because they thought she was
going to make protected disclosures to the Director. The MSPB pointed to the Chief and Assistant Chief’s resistance to
the meeting as evidence of their concerns. The MSPB then found that the
administrative judge did not provide Ms. Reed with the requisite notice
of how to establish jurisdiction over her appeal on these grounds, and
consequently remanded the case for further development of the record.
One must be cautious not to read the MSPB’s decision too broadly,
but it indicates just how liberally the MSPB may be willing to look at
who might be perceived as a whistleblower based upon the actions of the
parties alleged to have taken reprisal.
If you are a federal employee trying to navigate the complex realm of WPEA
litigation, or any other federal employment matter, it is best to
consult an attorney familiar with federal employee issues, as Ms. Reed did.