Whistleblower protection under the PPP is provided to federal employees by the Civil Service Reform Act (CSRA) of 1978. Retaliation of whistleblowers is the eighth prohibited personnel practice (PPP) defined by the CSRA. Whistleblowing is considered a protected activity.
Understanding the Eighth PPP
The eighth PPP prohibits any federal employee who has the authority to take personnel action, approve a personnel action, or order other employees to take a personnel action from doing so in retaliation for a protected disclosure performed by another employee. Employees are prohibited from taking retaliatory personnel action, even if such action is unsuccessful. They are further prohibited from threatening to take retaliatory personnel action.
What Is Whistleblowing?
Whistleblowing is defined as “any disclosure of information by an employee or applicant which the employee or applicant reasonably believes” to provide evidence of the violation of a rule, regulation, or law. Whistleblowing can also involve the disclosure of information that could reveal gross waste of funds, gross mismanagement, abuses of authority, and substantial dangers to public health or safety, provided such a disclosure is not prohibited by law or required by Executive order to be kept secret for purposes of foreign affairs or national defense.
However, disclosures that would be otherwise prohibited by law or required to be kept secret can still be protected by whistleblower protections if they are made to an agency’s Inspector General or to the Special Counsel.
Reprisals or threats of reprisals based upon disclosure of information are treated differently from reprisals or threats of reprisals based upon “exercising one’s right to complain,” such as filing a formal discrimination complaint with the EEO or another grievance. Allegations of reprisal or threats of reprisal based upon the exercise of the right to complain are not considered whistleblowing, and are handled by the EEO instead of the MSPB.
The Purpose of Whistleblower Protections Under PPP
Whistleblower protections under PPP shield Federal employees and Federal job applicants from retaliation if they disclose evidence of a crime, rule or regulation violation, or other misconduct to the appropriate authorities. The ultimate goal is to minimize crime or wrongdoing in the Federal government by protecting employees and applicants from disclosing evidence of such crime or wrongdoing. According to Schmittling v. Department of Army, retaliatory “adverse consequences” can include personnel actions that are taken, personnel actions that are not taken, and personnel actions that are threatened as a result of a whistleblower disclosure.
How to Make a Whistleblower Claim
If you have been the subject of reprisals or threats of reprisals due to a protected disclosure, you can file a whistleblower claim in one of two ways. First, you may file a whistleblower claim in the context of an otherwise appealable action, such as in the context of a removal appeal or suspension appeal. Second, you can raise a whistleblower claim as an Individual Right of Appeal (IRA) under the Whistleblower Protection Act.
If you want to raise a claim in the context of an IRA, you will need to exhaust administrative remedies first. This means that you must prove by a preponderance of evidence that you filed an Office of Special Counsel (OSC) complaint and gave OSC sufficient basis to pursue an investigation. The MSPB will only have jurisdiction over issues that you raised before the OSC.
If the MSPB has jurisdiction over your whistleblower claim, then you may raise what’s known as an affirmative defense. This allows you to claim that a personnel action taken by your agency was in fact a retaliatory act against your whistleblowing activity. If you can prove that the personnel action taken against you was retaliatory for whistleblowing, then this would constitute a defense of the action you’ve been charged with, even if your agency can prove that you performed the charged action.
Proving Your Affirmative Defense
If you’re bringing a claim of reprisals for protected disclosures in connection with an otherwise appealable personnel action, you’ll need to prove that the personnel action taken against you was retaliatory in nature. That means you’ll need to provide a preponderance of evidence that you made a protected disclosure and that this disclosure was a contributing factor in the personnel action taken against you or not taken in your favor.
Preponderant evidence refers to such a degree of evidence that any reasonable person would find it sufficient to support a contested fact, when considering the entire record of evidence. Protected disclosure is defined as an act of whistleblowing, or the disclosure of information that you, the employee, reasonably believe provides evidence of crime, or the violation of rules or regulations, gross mismanagement, waste of funds, abuse of authority, or substantial and specific danger to public health and safety. In order to qualify as a protected disclosure, however, your allegation of wrongdoing cannot be vague or lack supporting evidence.
Contributing factor refers to any disclosure that affects an agency’s decision to take personnel action, propose personnel action, threaten personnel action, or not take personnel action with respect to the employee who has made the disclosure. Personnel action is defined as:
- An appointment
- A promotion
- An adverse action, disciplinary action, or corrective action
- A transfer, detail, or reassignment
- A reinstatement
- A restoration
- A performance evaluation
- Any decision regarding benefits, pay, awards, or education or training, if such education and training could be expected to lead to an appointment, promotion, performance evaluation, or other personnel action
- An order for psychiatric examination or testing
- Any significant change in duties, working conditions, or responsibilities
Even if you can provide a preponderance of evidence to support your affirmative defense, that doesn’t necessarily mean you’ll be successful in your whistleblower appeal. Your agency will be given a chance to provide their own evidence that they would have taken, or not taken, the personnel action regardless of whether or not you made the protected disclosure.
Melville Johnson, P.C.: Experienced Prohibited Personnel Practices Attorneys
While Federal law protects employees and job applications from reprisals for protected disclosures, you may need help to protect your rights. At Melvin Johnson, P.C., our attorneys have successfully litigated a wide variety of federal whistleblowing cases across the nation.
Contact our federal employment attorneys today to learn more about your rights under the CSRA and the Whistleblower Protection Act. You can call us at 888.594.0424 or complete our online contact form to get started.