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Possible Whistleblower Protection for Reporting Your Own Mistreatment.

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 against her.

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 Medical Center.

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.