Enter to open, tab to navigate, enter to select
Testifying on Behalf of Federal Employee Under Investigation Is Not Whistleblower Protected Activity: MSPB
Practical Law Legal Update w-002-7179 (Approx. 5 pages)
Testifying on Behalf of Federal Employee Under Investigation Is Not Whistleblower Protected Activity: MSPB
by Practical Law Labor & Employment
| Published on 28 Jun 2016 • USA (National/Federal) |
In Graves v. Dep't of Veterans Affairs, the Merit Systems Protection Board (MSPB) held that a federal employee's testimony in support of a colleague under investigation by the agency was not protected activity under the Whistleblower Protection Enhancement Act (WPEA).
On June 17, 2016, in Graves v. Dep't of Veterans Affairs, the Merit Systems Protection Board (MSPB) held that a Department of Veterans Affairs (VA) employee did not engage in protected activity under the Whistleblower Protection Act (WPA), as amended by the Whistleblower Protection Enhancement Act (WPEA), when he testified in support of a colleague the agency was investigating. The MSPB also held that the Board did not have jurisdiction over an individual right of action (IRA) appeal arising out of employee disclosures made solely during grievance proceedings. ( (M.S.P.B. June 17, 2016).)
Background
The VA terminated a Biological Science Lab Technician based on a lack of available work. The employee filed an IRA appeal:
- Disputing the VA's rationale for his termination.
- Asserting that the VA committed a prohibited personnel practice because it terminated him in retaliation for protected activity (truthful testimony before an Administrative Investigation Board (AIB) in support of a lead researcher being investigated for scientific research misconduct).
The administrative judge ordered the employee to show that the MSPB had jurisdiction over the appeal. In response, the employee asserted that:
- After he testified before the AIB and disclosed, by means of a grievance, gross mismanagement, a gross waste of funds, and a hostile work environment, the VA terminated his employment.
- VA Directive 0700 required him to cooperate with such investigations to the extent permitted by governing laws, regulations, policies, and collective bargaining agreements.
The VA moved to dismiss the appeal for lack of jurisdiction. After the employee filed several responses to the VA's motion, the administrative judge dismissed the appeal for lack of jurisdiction.
Outcome
The MSPB held that the employee's testimony in support of the researcher being investigated by VA was not protected activity under the WPEA. In addition, the MSPB does not have jurisdiction over an IRA appeal arising out of an employee's disclosures made solely in a grievance proceeding and not separately disclosed to the agency.
The MSPB noted that it has jurisdiction over an IRA appeal if the employee exhausts his administrative remedies before the Office of Special Counsel and makes nonfrivolous allegations that:
- He made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
- The disclosure or protected activity was a contributing factor in the agency's decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a).
The employee in this case:
- Testified before an agency-initiated investigation in support of the colleague accused of scientific research misconduct.
- Made vague, conclusory, and unsupported allegations about gross mismanagement and a gross waste of funds in a grievance filed after his AIB testimony and provided no further details on review regarding the nature of his alleged protected disclosures. Vague, conclusory, and unsupported allegations do not satisfy the MSPB's nonfrivolous pleading standard (Rebstock Consolidation v. Dep't of Homeland Security, (M.S.P.B. Sept. 29, 2015)).
The MSPB found that:
- Even before the WPA was amended, 5 U.S.C. § 2302(b)(9) prohibited retaliation against a federal employee "because of the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation" (Linder, ). The WPEA clarified that exercising a right to complain in certain administrative proceedings, such as MSPB appellate proceedings, the equal employment opportunity complaint process, grievance proceedings, and unfair labor practice proceedings, is also a basis for MSPB jurisdiction. However, retaliation in violation of the WPA or WPEA is based on exercising a right to complain.
- The AIB investigation was conducted to gather evidence about another employee's alleged misconduct and the VA's policy requires VA employees to furnish information and testify freely and honestly. The employee's testimony in the AIB investigation did not constitute the exercise of an appeal, complaint, or grievance right (Linder, ). It did not constitute an initial step toward taking legal action against the agency for a perceived violation of employment rights, nor could the AIB grant Mr. Graves relief for any personnel action related to the investigation.
- Despite the employee's argument that the purpose of the WPA and WPEA is to strengthen, improve, and protect the rights of federal employees, prevent reprisal, and help eliminate wrongdoing, and that remedial statutes should be interpreted broadly, the statutory language at issue in this case is clear as to the types of protected activities that fall under 5 U.S.C. § 2302(b)(9)(B).
- The MSPB:
- does not have the authority to determine the most efficient and effective means to prevent agency retaliation;
- has only as much authority as Congress chooses to give it; and
- is not permitted to create new remedies that the employee believes Congress may have overlooked.
Practical Implications
This decision clarifies that a federal employee who testifies in an agency-initiated investigation as part of his job does not engage in protected activity under the WPA. To bring a whistleblower retaliation claim under the WPA, a federal employee must allege reprisal for exercising the rights specifically identified in the statute.