PROHIBITED PERSONNEL PRACTICES
RIGHTS AND REMEDIES OF FEDERAL EMPLOYEES
UNDER 5 U.S.C., CHAPTERS 12 & 23
Anthony T. CardilloChief, Dallas Field OfficeU.S. OFFICE OF SPECIAL COUNSEL
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TOPICS5 U.S.C. CHPTRS. 12, 23, 73
U.S. OFFICE OF SPECIAL COUNSEL (OSC)
●PROHIBITED PERSONNEL PRACTICES
●CORRECTIVE AND DISCIPLINARY
ACTION
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AUTHORIZED TO —
INVESTIGATE PROHIBITED PERSONNEL PRACTICES AND OTHER ACTIVITIES PROHIBITED BY CIVIL SERVICE LAW, RULE, OR REGULATION
SEEK CORRECTIVE ACTION ON BEHALF OF INDIVIDUALS WHO ARE THE VICTIMS OF PROHIBITED PERSONNEL PRACTICES
SEEK DISCIPLINARY ACTION AGAINST AGENCY OFFICIALS WHO COMMIT PROHIBITED PERSONNEL PRACTICES
OFFICE OF SPECIAL COUNSEL (OSC)5 U.S.C. §§ 1211-19; 5 C.F.R. PART 1800
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RESPONSIBILITIES OF AGENCY OFFICIALS5 U.S.C. § 2302(c)
AGENCY HEADS, AND OFFICIALS WITH DELEGATED PERSONNEL MANAGEMENT AUTHORITY, ARE RESPONSIBLE FOR —
PREVENTING PROHIBITED PERSONNEL PRACTICES
COMPLYING WITH AND ENFORCING CIVIL SERVICE LAWS, RULES, AND REGULATIONS
ENSURING THAT EMPLOYEES ARE INFORMED OF THEIR RIGHTS AND REMEDIES (IN CONSULTATION WITH OSC)
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OSC ORGANIZATION OSC ORGANIZATION
SPECIAL COUNSELSPECIAL COUNSELWilliam Reukauf
DEPUTY SPECIAL COUNSELDEPUTY SPECIAL COUNSEL
COMPLAINTS COMPLAINTS EXAMINING UNITEXAMINING UNITAUDRE FIELDS-AUDRE FIELDS-
WILLIAMSWILLIAMS
INVESTIGATION AND INVESTIGATION AND PROSECUTION PROSECUTION
DIVISIONDIVISION
DISCLOSUREUNIT
CATHERINE McMullen
HATCH ACT UNITANA
GALINDO-MARRONE
CONGRESSIONAL CONGRESSIONAL ANDAND
PUBLIC AFFAIRSPUBLIC AFFAIRSDarshan SethDarshan Seth
LEGAL COUNSELLEGAL COUNSELANDAND
POLICY DIVISIONPOLICY DIVISIONERIN McDonnellERIN McDonnell
MANAGEMENT AND
BUDGET DIVISIONKarl Kammann
HUMAN RESOURCES MANAGEMENT BRANCH
ROBERT WISE
INFORMATION TECHNOLOGY BRANCHWING LEUNG
BUDGET AND PROCUREMENT BRANCHDOUGLAS STICKLER
DOCUMENT CONTROL BRANCHMIRIAM (T.J.) WEISS
OUTREACHShirine Moazed
WASHINGTON FIELD OFFICESHIRINE MOAZED
DALLAS FIELD OFFICEANTHONY CARDILLO
S.F. BAY AREA FIELD OFFICEBruce Fong
MIDWEST FIELD OFFICECHRISTOPHER TALL
TRAINING OFFICE
Caroline HeardCaroline Heard
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KEY CONCEPTS
● MERIT SYSTEM PRINCIPLESTHE FRAMEWORK AND FOUNDATION FOR MAKING ALL PERSONNEL DECISIONS IN THE CIVIL SERVICE
● PROHIBITED PERSONNEL PRACTICESADMONITIONS AGAINST SPECIFIC PRACTICES THAT CONFLICT WITH MERIT SYSTEMS PRINCIPLES
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PROHIBITED PERSONNEL PRACTICES:OVERVIEW
12 PROHIBITED PERSONNEL PRACTICES — FALL UNDER ONE OF FOUR GENERAL CATEGORIES:
● DISCRIMINATION
● HIRING PRACTICES THAT OFFEND MERIT SYSTEM
● RETALIATION FOR ENGAGING IN PROTECTED ACTIVITY (INCLUDING WHISTLEBLOWING)
● THE CATCH-ALL: VIOLATION OF LAWS, RULES OR REGULATIONS THAT IMPLEMENT MERIT SYSTEMS PRINCIPLES (INCLUDING VIOLATIONS OF CONSTITUTIONAL RIGHTS)
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DISCRIMINATION
PROHIBITED PERSONNEL PRACTICE TO DISCRIMINATE AGAINST AN EMPLOYEE:
● BASED ON RACE, COLOR, NATIONALITY, RELIGION, GENDER, HANDICAPPING CONDITION, AGE, MARITAL STATUS, OR POLITICAL AFFILIATION
● BASED ON “CONDUCT WHICH DOES NOT ADVERSELY AFFECT THE PERFORMANCE OF THE EMPLOYEE OR APPLICANT, OR THE PERFORMANCE OF OTHERS”
5 U.S.C. §§ 2302(b)(1) and (b)(10)
PROHIBITED PERSONNEL PRACTICES5 U.S.C. § 2302(b)(1) (OSC DEFERRAL POLICY)5 C.F.R. § 1810.1
ALTHOUGH THEY ARE INCLUDED AMONG THE PROHIBITED PERSONNEL PRACTICES, OSC DEFERS THE FOLLOWING ALLEGATIONS OF DISCRIMINATION TO AGENCY AND EEOC DISCRIMINATION COMPLAINT PROCESSES:
RACE COLOR RELIGION SEX NATIONAL ORIGIN AGE HANDICAP
PROHIBITED PERSONNEL PRACTICES5 U.S.C. § 2302(b)(1)
DISCRIMINATING FOR OR AGANST ANY
EMPLOYEE OR APPLICANT ON A
PROHIBITED BASIS (INCLUDING ON THE
BASIS OF MARITAL STATUS OR
POLITICAL AFFILIATION)
EXAMPLE:
SUPERVISOR JOE DECLINES TO RENEW
EMPLOYEE JANE’S TEMPORARY
APPOINTMENT BECAUSE HE DOES NOT
APPROVE OF HER MEMBERSHIP IN THE
SOCIALIST WORKERS PARTY
PROHIBITED PERSONNEL PRACTICES5 U.S.C. § 2302(b)(10)
DISCRIMINATION BASED ON CONDUCT
NOT ADVERSE TO JOB PERFORMANCE
EXAMPLE: Jack's employment is
terminated because he attended a "Gay
Pride" march; or he attended a "Pro-
Life" event; or he attended an animal
rights rally; or he attended a gun-
owners' rights meeting. 11
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POLITICAL ACTIVITY
PROHIBITED PERSONNEL PRACTICE TO:
• COERCE THE POLITICAL ACTIVITY OF ANY PERSON (INCLUDING PROVIDING OF ANY POLITICAL CONTRIBUTION OR SERVICE)
• TAKE ANY ACTION AGAINST AN EMPLOYEE OR APPLICANT FOR EMPLOYMENT AS A REPRISAL FOR THE REFUSAL OF ANY PERSON TO ENGAGE IN SUCH POLITICAL ACTIVITY
5 U.S.C. § 2302(b)(3)
PROHIBITED PERSONNEL PRACTICES5 U.S.C. § 2302(b)(3)
COERCING POLITICAL ACTIVITY, OR
TAKING REPRISAL FOR REFUSAL TO
ENGAGE IN POLITICAL ACTIVITY
EXAMPLE:
SUPERVISOR JANE THREATENS TO TAKES
AWAY SIGNIFICANT JOB DUTIES FROM
EMPLOYEE JACK IF HE DOES NOT AGREE
TO ATTEND A POLITICAL RALLY BEING
ORGANIZED BY THE HEAD OF THE
AGENCY13
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● OBSTRUCTING THE RIGHT TO COMPETE
● INFLUENCING WITHDRAWAL FROM COMPETITION
● UNAUTHORIZED PREFERENCES
● NEPOTISM
● CONSIDERING IMPROPER JOB REFERENCES
● KNOWINGLY VIOLATING VETERANS’ PREFERENCE
5 U.S.C. §§ 2302(b)(2); (b)(4); (b)(5); (b)(6);(b)(7); (b)(11)
HIRING OFFENSES
PROHIBITED PERSONNEL PRACTICES5 U.S.C. § 2302(b)(2)
SOLICITING OR CONSIDERING IMPROPER
EMPLOYMENT RECOMMENDATIONS OR
STATEMENTS
(Recommendations or statements that are
not based upon job qualifications, character,
performance or other relevant matters).
EXAMPLE:
SELECTING OFFICIAL JOE HIRES APPLICANT
JACK BASED ON THE RECOMMENDATION OF
SENATOR SMITH, WHO DOES NOT KNOW
ANYTHING ABOUT EMPLOYEE JACK’S
QUALIFICATIONS
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MOST COMMON VIOLATIONS:
● DECEIVING OR WILFULLY OBSTRUCTING RIGHT TO COMPETE FOR EMPLOYMENT — 5 U.S.C. § 2302(b)(4)
● INFLUENCING WITHDRAWAL FROM COMPETITION IN ORDER TO IMPROVE OR INJURE EMPLOYMENT PROSPECTS OF ANOTHER — 5 U.S.C. § 2302(b)(5)
● GIVING AN UNAUTHORIZED PREFERENCE OR ADVANTAGE TO IMPROVE OR INJURE THE PROSPECTS OF ANY PARTICULAR PERSON FOR EMPLOYMENT — 5 U.S.C. § 2302(b)(6)
HIRING OFFENSES
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EXAMPLES OF HIRING OFFENSES
● MANAGER DELIBERATELY FAILS TO HAVE VACANCY ANNOUNCEMENT POSTED, TO PREVENT A PARTICULAR CANDIDATE FROM APPLYING FOR A VACANCY
● MANAGER DELIBERATELY MISCATEGORIZES THE POSITION’S REQUIREMENTS IN A JOB INTERVIEW (SPECIAL COUNSEL V. BROWN AND NELSON)
● APPLICATION RECEIVED IS DELIBERATELY MISPLACED OR DESTROYED
● SUPERVISOR GIVES AN EMPLOYEE A DISHONEST RECOMMENDATION OR APPRAISAL TO KEEP VALUABLE EMPLOYEE OR TO HELP ANOTHER CANDIDATE
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● SUPERVISOR ENCOURAGES A SUBORDINATE NOT TO
COMPETE, OR TO WITHDRAW HIS OR HER APPLICATION,
BY MAKING PROMISES OF FUTURE BENEFITS THAT
SUPERVISOR DOES NOT INTEND TO KEEP● CLOSED VACANCY ANNOUNCEMENT IS RE-OPENED TO
PERMIT A FAVORED CANDIDATE TO APPLY● POSITION IS REANNOUNCED AT A LOWER GRADE LEVEL
SO THAT A FAVORED CANDIDATE CAN QUALIFY AND BE
SELECTED (SPECIAL COUNSEL V. BEATREZ AND LEE)
EXAMPLES OF HIRING OFFENSES
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● JOB QUALIFICATIONS ARE MANIPULATED TO
FAVOR A PARTICULAR APPLICANT (Special
Counsel v. Brown and Nelson)
● A SUPERVISOR ADVISES A QUALIFIED EMPLOYEE
NOT TO APPLY FOR A JOB IN ORDER TO IMPROVE
ANOTHER EMPLOYEE’S CHANCES TO BE SELECTED
EXAMPLES OF HIRING OFFENSES
PROHIBITED PERSONNEL PRACTICES5 U.S.C. § 2302(b)(7)
ENGAGING IN NEPOTISM (AGENCY OFFICIAL
APPOINTS, PROMOTES, OR ADVOCATES THE
APPOINTMENT OR PROMOTION OF A RELATIVE
WITHIN THE SAME AGENCY)
EXAMPLE:
SECOND-LEVEL SUPERVISOR JANE RECOMMENDS
THAT FIRST-LEVEL SUPERVISOR JOE HIRE HER
FIRST COUSIN, MARY, WHO HAS APPLIED FOR A
VACANCY
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PROHIBITED PERSONNEL PRACTICES5 U.S.C. § 2302(b)(11)
TAKING OR FAILING TO TAKE,
RECOMMEND, OR APPROVE A
PERSONNEL ACTION IN VIOLATION OF A
VETERANS’ PREFERENCE REQUIREMENT
EXAMPLE:
SUPERVISOR JANE HIRED EMPLOYEE
JACK WITHOUT CONSIDERING VETERAN
JENNIFER, WHO WAS INCLUDED ON THE
LIST OF ELIGIBLE EMPLOYEES21
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COMMON MISCONCEPTION:
• IT IS NOT A PROHIBITED PERSONNEL PRACTICE TO ACT UPON ONE’S EXISTING EXPECTATION THAT ONE PERSON MAY BE THE BEST SELECTEE FOR A PARTICULAR POSITION (“PRESELECTION”).
• TO VIOLATE THE LAW THERE MUST BE —
THE GRANT OF SOME ILLEGAL ADVANTAGE
AN INTENTIONAL AND PURPOSEFUL MANIPULATION OF THE SYSTEM TO INSURE THAT ONE PERSON IS FAVORED AND ANOTHER PERSON IS DISADVANTAGED
HIRING OFFENSES
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CAVEATS:
• WHILE HIRING OFFENSES USUALLY REQUIRE INTENT TO DECEIVE OR MANIPULATE THE SYSTEM, IF A LAW, RULE, OR REGULATION IMPLEMENTING A MERIT SYSTEM PRINCIPLE IS VIOLATED IN THE PROCESS, THAT WOULD ALSO BE A PROHIBITED PERSONNEL PRACTICE.
• NEGLIGENCE OR IMPRUDENT ACTIONS CAN CREATE THE APPEARANCE OF A HIRING OFFENSE AND RESULT IN COMPLAINTS AND INVESTIGATIONS — E.G., BROADCASTING ONE’S CHOICE BEFORE COMPETITION IS HELD.
HIRING OFFENSES
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CATCH ALL PROHIBITED PERSONNEL PRACTICE
TAKING OR FAILING TO TAKE PERSONNEL ACTION,
IN VIOLATION OF A LAW, RULE, OR REGULATION
THAT IMPLEMENTS OR DIRECTLY CONCERNS A
MERIT SYSTEM PRINCIPLE
5 U.S.C. § 2302(b)(12)
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MERIT SYSTEM PRINCIPLES5 U.S.C. § 2301(b)
1. RECRUIT, SELECT, AND ADVANCE ON THE BASIS OF MERIT AFTER FAIR AND OPEN COMPETITION
2. TREAT EMPLOYEES AND APPLICANTS FAIRLY AND EQUITABLY
3. PROVIDE EQUAL PAY FOR EQUAL WORK AND REWARD EXCELLENT PERFORMANCE
4. MAINTAIN HIGH STANDARDS OF INTEGRITY, CONDUCT, AND CONCERN FOR THE PUBLIC INTEREST
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5. MANAGE EMPLOYEES EFFECTIVELY AND EFFICIENTLY
6. RETAIN OR SEPARATE EMPLOYEES ON THE BASIS OF THEIR PERFORMANCE
7. PROVIDE EMPLOYEES WITH EFFECTIVE TRAINING AND EDUCATION
8. PROTECT EMPLOYEES FROM IMPROPER POLITICAL INFLUENCE
9. PROTECT EMPLOYEES FROM REPRISAL FOR LAWFUL DISCLOSURES
MERIT SYSTEM PRINCIPLES5 U.S.C. § 2301(b)
(b)(12) EXAMPLE
Forest Service Example: Special Counsel v. Lynn and Chiarella (November 1985)
Forest Service, Petersburg, Alaska District Ranger and his supervisor removed a
temporary employee (Istvan Toth) for writing a letter to the editor of a local newspaper criticizing certain personnel practices by the Forest Service.
Dual prosecution policy: Subjects already suspended for 30 and 14 days respectively.
5 U.S.C. 1214(f) waivers SPECIAL COUNSEL V. BROWN AND NELSON (another
example)
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Appointment, promotion, action under
chapter 75 of title 5 or other disciplinary
or corrective action
Detail, transfer, reassignment,
reinstatement, restoration,
reemployment, or performance
evaluation under chapter 43
Decision concerning pay, benefits or
awards
Education or training if reasonably
expected to lead to a personnel action
as described above
WHAT IS A PERSONNEL ACTION?5 U.S.C. § 2302(b)(2)(A)
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Decision to order psychiatric testing or
examination
Any other significant change in duties,
responsibilities or working conditions
FAILURE TO RENEW A TEMPORARY
APPOINTMENT IS A PERSONNEL ACTION
(KERN V. USDA, 48 M.S.P.R. 137, 140
(1991) –APPELLANT WAS A GS-5 FOREST
SERVICE HYDROLOGIC TECHNICIAN [OSC
INTERVENED]
WHAT IS A PERSONNEL ACTION? (cont.)5 U.S.C. § 2302(b)(2)(A)
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RETALIATION5 U.S.C. §§ 2302(b)(8); (b)(9)
TAKING, FAILING TO TAKE, OR THREATENING TO TAKE OR FAIL TO TAKE PERSONNEL ACTION FOR ―
● PROTECTED WHISTLEBLOWING
● EXERCISE OF APPEAL, COMPLAINT, OR GRIEVANCE RIGHTS
● TESTIMONY OR OTHER ASSISTANCE TO PERSON EXERCISING SUCH RIGHTS
● COOPERATION WITH OR DISCLOSURES TO THE SPECIAL COUNSEL OR AN INSPECTOR GENERAL
● REFUSAL TO OBEY AN ORDER THAT WOULD REQUIRE VIOLATION OF LAW
“Because they serve the public interest by eliminating fraud, waste, and
unnecessary government expenditures”
Protecting whistleblowers leads to a more effective civil service.”
Marren v. Dept. of Justice, 51 M.S.P.R. 632, 636 (1991) citing the Whistleblower Protection Act, Public Law 101-12, 103 Stat. 16 (April 10, 1989)
WHY PROTECT WHISTLEBLOWERS?
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PROTECTED DISCLOSURE
DISCLOSE MEANS TO—
EXPOSE, MAKE KNOWN, REVEAL [Horton v. Dept. of Navy, 60 M.S.P.R. 397, 402 (1994), affirmed 66 F.3d 279 (Fed. Cir. 1995), citing “Black’s Law Dictionary,” 417 (5th Ed. 1979)
THUS, CRITICISM DIRECTED TO THE WRONGDOER NOT NORMALLY VIEWED AS WHISTLEBLOWING [Coufal v. Dept. of Justice, 98 M.S.P.R. 31, 39 (2004) citing Huffman v. O.P.M., 263 F.3d 1341, 1350 (Fed. Cir. 2001)].
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ELEMENTS OF PROOF: REPRISAL FOR WHISTLEBLOWING5 U.S.C. §§ 1214(b)(4)(A)-(B), 1221(e)
MUST SHOW —
• PROTECTED DISCLOSURE OF INFORMATION UNDER 5 U.S.C. § 2302(b)(8)
• PERSONNEL ACTION TAKEN NOT TAKEN, OR THREATENED
• ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE PROTECTED DISCLOSURE
• PROTECTED DISCLOSURE WAS A CONTRIBUTING FACTOR IN THE PERSONNEL ACTION
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PROTECTED WHISTLEBLOWER DISCLOSURES5 U.S.C. §§ 2302(b)(8), 1213
CATEGORIES OF DISCLOSURES
• A VIOLATION OF ANY LAW, RULE OR REGULATION
• GROSS MISMANAGEMENT
MORE THAN DE MINIMIS
• GROSS WASTE OF FUNDS
MORE THAN A DEBATABLE EXPENDITURE
• ABUSE OF AUTHORITY
• SUBSTANTIAL AND SPECIFIC DANGER TO PUBLIC
HEALTH AND/OR SAFETY
PROTECTED WHISTLEBLOWER DISCLOSURES5 U.S.C. § 2302(b)(8)
VIOLATION OF LAW, RULE OR REGULATION
no De Minimis exception?
GROSS MISMANAGEMENT
MORE THAN DE MINIMIS
WRONGDOING OR
NEGLIGENCE — AN ACTION THAT
CREATES A RISK OF SIGNIFICANT
ADVERSE IMPACT ON THE
ACCOMPLISHMENT OF AN
AGENCY’S MISSION [Nafus v. Dept.
of Army, 57 M.S.P.R.
386, 395 (1993)]. 35
PROTECTED WHISTLEBLOWER DISCLOSURES5 U.S.C. § 2302(b)(8)
GROSS WASTE OF FUNDS
MORE THAN A DEBATABLE EXPENDITURE THAT IS
SIGNFICANTLY OUT OF PROPRORTION TO THE BENEFIT REASONABLY EXPECTED TO
ACCRUE TO THE GOVERNMENT. Nafus at 393.
ABUSE OF AUTHORITY
AN ARBITRARY OR CAPRICIOUS EXERCISE OF POWER THAT INJURES ANOTHER, OR BENEFITS THE ABUSER OR OTHERS. McCollum v. Dept. of Veterans Affairs, 75 M.S.P.R. 449, 455-457 (1997)
SUBSTANTIAL AND SPECIFIC DANGER TO PUBLIC HEALTH OR SAFETY
INCLUDES DANGERS TO SPECIFIC CLASS OF PERSONS AS WELL AS TO THE PUBLIC AT LARGE36
PROTECTED DISCLOSURE
“DE MINIMIS” STANDARD
Yes, for “gross” waste of funds (more than debatable expenditure
that is significantly out of proportion to the benefit reasonably expected to accrue to the gov’t).
Yes, for “gross" mismanagement(more than wrongdoing ornegligence: management action or inaction which creates a substantial risk of significant adverse impact upon the agency’s ability to accomplish its mission).
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PROTECTED DISCLOSUREDe Minimis Standard (continued):
- No, for abuse of authority disclosures. Wheeler
v. Dept. of Veterans Affairs, 88 MSPR 236 (2001)
- No, for violation of law, rule or regulation
disclosures. Mogyorossy v. Dept. of Air Force,
96 M.S.P.R. 652, 661 (2004) citing Berkely v.
Dept. of Army, 72 M.S.P.R. 341, 352 , but beware
of Special Counsel v. Spears [75 MSPR 639
(1997)], Frederick v. Dept. of Justice, 73 F.3d
349 (Fed. Cir. 1996) and Herman v. Dept. of
Justice, 193 F.3d 1375 (Fed. Cir. 1999)
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-Yes, for disclosures of public health or safety dangers. Herman at 1379.
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• GENERALLY PROTECTED WHEN MADE TO
ANY PERSON (EXCEPT THE WRONGDOER)
• NEED NOT BE ACCURATE TO BE PROTECTED
• PROTECTED IF EMPLOYEE HAS A
REASONABLE BELIEF THAT IT IS TRUE —
TEST IS BOTH OBJECTIVE AND SUBJECTIVE
PROTECTED WHISTLEBLOWER DISCLOSURES (cont’d)5 U.S.C. §§ 2302(b)(8), 1213
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NO REQUIREMENT THAT EMPLOYEE GO
THROUGH CHAIN OF COMMAND
WHISTLEBLOWER’S PERSONAL MOTIVATION
DOES NOT AFFECT REASONABLENESS OF A
DISCLOSURE
EMPLOYEE OR APPLICANT IS PROTECTED IF
EMPLOYER MISTAKENLY BELIEVES HE OR
SHE IS A WHISTLEBLOWER
PROTECTED WHISTLEBLOWER DISCLOSURES (cont’d)5 U.S.C. §§ 2302(b)(8), 1213
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DISCLOSURES MUST BE SPECIFIC AND
DETAILED, NOT VAGUE ALLEGATIONS OF
WRONGDOING REGARDING BROAD OR
IMPRECISE MATTERS, BUT THEY DO NOT
HAVE TO BE SO SPECIFIC AS TO ENABLE THE
RECIPIENT TO CONDUCT AN INVESTIGATION
WITHOUT GOING BACK TO THE DISCLOSER
FOR ADDITIONAL INFORMATION (KEEFER VS.
USDA, 82 M.S.P.R 687, 693 (1999)
PROTECTED WHISTLEBLOWER DISCLOSURES (cont’d)5 U.S.C. § 2302(b)(8)
Protected Disclosure
Subjective Test –
Discloser has to personally believe what he or she is reporting meets one of the categories of the statute:
VIOLATION OF ANY LAW, RULE OR
REGULATION; GROSS MISMANAGEMENT; A GROSS WASTE OF FUNDS; AN ABUSE OF AUTHORITY; OR A SUBSTANTIAL AND SPECIFIC DANGER TO PUBLIC HEALTH AND SAFETY.
PROTECTED DISCLOSURE
OBJECTIVE TEST—
GIVEN THE INFORMATION AVAILABLE
COULD A PERSON STANDING IN THE DISCLOSER’S SHOES REASONABLY BELIEVE THAT THE DISCLOSED INFORMATION EVIDENCES ONE OF THE IDENTIFIED CONDITIONS IN THE STATUTE?
NAMELY A VIOLATION OF LAW, RULE OR REGULATION; GROSS MISMANAGEMENT; GROSS WASTE OF FUNDS; ABUSE OF AUTHORITY; OR SUBSTANTIAL DANGER TO PUBLIC HEALTH OR SAFETY
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PROHIBITED PERSONNEL PRACTICES5 U.S.C. § 2302(b)(8)
TAKING, FAILING TO TAKE, OR
THREATENING TO TAKE OR FAIL TO
TAKE PERSONNEL ACTION BECAUSE OF
WHISTLEBLOWER DISCLOSURES
EXAMPLE:
SUPERVISOR JOE DIRECTS THE
GEOGRAPHIC REASSIGNMENT OF
EMPLOYEE JACK BECAUSE JACK
REPORTED SAFETY VIOLATIONS TO THE
AGENCY’S INSPECTOR GENERAL
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DISCLOSURE NOT PROTECTED (UNLESS MADE
TO THE SPECIAL COUNSEL OR INSPECTORS
GENERAL), WHERE DISCLOSURE IS —
PROHIBITED BY LAW, [Kent v. G.S.A., 56
M.S.P.R. 536 (1993)] . OR
REQUIRED BY EXECUTIVE ORDER TO BE
SECRET FOR NATIONAL SECURITY OR
FOREIGN AFFAIRS REASONS
PROTECTED WHISTLEBLOWER DISCLOSURES (cont’d)5 U.S.C. §§ 2302(b)(8), 1213
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CONTRIBUTING FACTOR
ANY FACTOR WHICH ALONE OR IN CONNECTION WITH OTHERS TENDS TO AFFECT IN ANY WAY THE OUTCOME OF THE PERSONNEL ACTION AT ISSUE
CAN BE ESTABLISHED BY KNOWLEDGE / TIMING ALONE
OFTEN ESTABLISHED BY CIRCUMSTANTIAL EVIDENCE
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CLEAR AND CONVINCING EVIDENCE(AGENCY DEFENSE)
• AGENCY DEFENDS PERSONNEL ACTION BY SHOWING — BY CLEAR AND CONVINCING EVIDENCE — THAT IT WOULD HAVE TAKEN THE SAME ACTION WITHOUT THE DISCLOSURE. [Brewer v. Dept. of Interior, 76 M.S.P.R. 363, 370 (1997) citing Caddell v. Dept. of Justice, 66 M.S.P.R. 347, 351 (1995), aff’d, 96 F.3d 1367 (Fed. Cir. 1996)]
• FACTORS:
STRENGTH OF THE EVIDENCE IN SUPPORT OF THE PERSONNEL ACTION
EXISTENCE AND STRENGTH OF MOTIVE TO RETALIATE
TREATMENT OF SIMILAR EMPLOYEES WHO ARE NOT WHISTLEBLOWERS
PROHIBITED PERSONNEL PRACTICES5 U.S.C. § 2302(b)(9) (cont’d)
EXAMPLE:
SUPERVISOR JANE DENIES A
CAREER PROMOTION TO
EMPLOYEE JACK BECAUSE
EMPLOYEE JACK FILED AN
ADMINISTRATIVE GRIEVANCE
ABOUT HIS PERFORMANCE RATING
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RETALIATIONDifferences between U.S.C. § 2302(b)(8) and (b)(9)
REPRISAL BASED ON DISCLOSURES OF INFORMATION VS. REPRISAL BASESD ON THE EXERCISE OF A RIGHT TO COMPLAIN
● CONTRIBUTING FACTOR VS. SIGNIFICANT FACTOR
● AGENCY DEFENSE BY CLEAR AND CONVINCING EVIDENCE VS. PREPONDERANT EVIDENCE
● FOR (B)(9) REPRISAL THERE MUST BE A GENUINE NEXUS BETWEEN THE ALLEGED RETALIATION AND THE PERSONNEL ACTION (WARREN TEST)
● NO INDIVIDUAL RIGHT OF ACTION APPEAL UNDER (B)(9)
● EVIDENCE OF RETALIATORY MOTIVE REQUIRED UNDER (B)(9): SAME FOR (B)(8) DISCIPLINARY CASE
INDIVIDUAL RIGHT OF ACTION (IRA) APPEALS
Provides for de novo proceeding before the Board for all whistleblowers who do not obtain corrective action from the OSC.
This extends the scope of Board review to previously non-appealable personnel actions.
Must exhaust OSC remedy first: 60 days from date OSC closes case, or 120 days after the date corrective action was first sought.
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IRAs (continued)
Three jurisdictional elements [Lozada v. E.E.O.C., 45 M.S.P.R. 310, 312-313 (1990)]:
(1) appellant must have made a protected disclosure
(2) appellant must have been subjected to a covered personnel action
(3) appellant must have raised issue before to OSC and exhausted those proceedings.
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STAYS OF PERSONNEL ACTIONS5 U.S.C. § 1214(b)(1)(A)
OSC CAN SEEK DELAY OF PERSONNEL ACTION (“STAY”) THROUGH —
NEGOTIATION WITH AGENCY (INFORMAL)
PETITION TO MERIT SYSTEMS PROTECTION BOARD(FORMAL)
BOARD MEMBER CAN STAY PERSONNEL ACTION (UP TO 45 DAYS) IF ACTION WAS TAKEN, OR IS TO BE TAKEN, AS RESULT OF PROHIBITED PERSONNEL PRACTICE
BOARD MAY EXTEND STAY (AFTER AGENCY COMMENT)
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ELECTION OF REMEDIES:PROHIBITED PERSONNEL PRACTICES5 U.S.C. § 7121(g)(2)
EMPLOYEES COVERED BY COLLECTIVE BARGAINING AGREEMENTS MUST CHOOSE BETWEEN REMEDIES FOR PROHIBITED PERSONNEL PRACTICES
OPTIONS:
NEGOTIATED GRIEVANCE PROCEDURE
OSC
MERIT SYSTEMS PROTECTION BOARD
NOT APPLICABLE TO ALLEGATIONS OF DISCRIMINATION
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CORRECTIVE ACTION:5 U.S.C. § 1214
IF OSC FINDS THAT A PROHIBITED PERSONNEL PRACTICE HAS OCCURRED, A LETTER WILL BE SENT TO THE HEAD OF THE AGENCY INVOLVED TO REQUEST CORRECTIVE ACTION
EXAMPLE ―
IF THE CASE INVOLVES A 30-DAY SUSPENSION, OSC MIGHT REQUEST THAT THE SUSPENSION BE RESCINDED, AND THAT THE EMPLOYEE RECEIVE BACK PAY
IN MOST CASES, AGENCIES AGREE TO TAKE THE CORRECTIVE ACTION REQUESTED AND A SETTLEMENT AGREEMENT RESOLVES THE MATTER
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CORRECTIVE ACTION (cont’d) 5 U.S.C. § 1214
IF THE AGENCY DOES NOT TAKE THE
CORRECTIVE ACTION REQUESTED WITHIN
A REASONABLE PERIOD OF TIME, OSC MAY
FILE A PETITION FOR CORRECTIVE ACTION
WITH THE MERIT SYSTEMS PROTECTION
BOARD
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MAY BE SOUGHT BY OSC FOR —
PROHIBITED PERSONNEL PRACTICES
HATCH ACT VIOLATIONS
OTHER VIOLATIONS OF CIVIL SERVICE LAW, RULE, OR REGULATION
DISCIPLINARY ACTION5 U.S.C. § 1215
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MAY BE SOUGHT BY OSC FROM —
THE MERIT SYSTEMS PROTECTION BOARD
AGENCY HEADS(FOR UNIFORMED SERVICE MEMBERS AND CONTRACTORS)
THE PRESIDENT(FOR MOST PRESIDENTIAL APPOINTEES)
DISCIPLINARY ACTION (cont’d) 5 U.S.C. § 1215
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POSSIBLE PENALTIES —
REMOVAL, REDUCTION IN GRADE, SUSPENSION, OR REPRIMAND
DEBARMENT FROM FEDERAL EMPLOYMENT
(UP TO FIVE YEARS)
CIVIL PENALTY(UP TO $1,000)
DISCIPLINARY ACTION (cont’d) 5 U.S.C. § 1215
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DISCIPLINARY ACTION (cont’d) 5 U.S.C. § 1215
RIGHTS OF CHARGED EMPLOYEE INCLUDE —
OPPORTUNITY TO RESPOND
LEGAL OR OTHER REPRESENTATION
HEARING BEFORE A MERIT SYSTEMS PROTECTION BOARD ADMINISTRATIVE LAW JUDGE
WRITTEN DECISION
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HOW THE OSC PROCESSES A HOW THE OSC PROCESSES A COMPLAINT COMPLAINT
COMPLAINTS EXAMINING UNIT (CEU):
REVIEWS ALL INCOMING COMPLAINTS (PROHIBITED PERSONNEL PRACTICE COMPLAINTS MUST BE SUBMITTED ON FORM OSC-11)
MAKES JURISDICTIONAL DETERMINATION
SCREENS TO DETERMINE WHETHER TO —
REFER CASE FOR FULL FIELD INVESTIGATION, OR
CLOSE (REVIEW COMMITTEE) —
PRELIMINARY DETERMINATION LETTER SENT TO COMPLAINANT
OPPORTUNITY TO RESPOND
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HOW THE OSC PROCESSES A HOW THE OSC PROCESSES A COMPLAINT COMPLAINT (cont’d)
INVESTIGATION AND PROSECUTION DIVISION (one of four field offices):
CONDUCTS ON-SITE OR OTHER INQUIRIES (e.g. by telephone
INTERVIEWS WITNESSES AND GATHERS DOCUMENTS
WORKS IN TEAMS WITH ATTORNEYS
USES AGENCY LIAISON PROGRAM
CONDUCTS SETTLEMENT NEGOTIATIONS
•ISSUES REPORTS OF INVESTIGATION
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OSC PHONE / E-MAIL CONTACTS
COMPLAINTS EXAMINING UNIT: (202) 254-3670
(800) 872-9855
DISCLOSURE HOTLINE: (202) 254-3640
(800) 572-2249
HATCH ACT UNIT: (800) 85-HATCH
(202) 254-3650
OSC SPEAKERS/OUTREACH REQUESTS: (202) 254-
3600 Shirine Moazed
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OSC MAIL CONTACTS
U.S. OFFICE OF SPECIAL COUNSEL
1730 M STREET, N.W. (SUITE 218)
WASHINGTON, DC 20036-4505