prohibited personnel practices rights and remedies of federal employees under 5 u.s.c., chapters 12...

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

1

2

TOPICS5 U.S.C. CHPTRS. 12, 23, 73

U.S. OFFICE OF SPECIAL COUNSEL (OSC)

●PROHIBITED PERSONNEL PRACTICES

●CORRECTIVE AND DISCIPLINARY

ACTION

3

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

4

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)

5

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

6

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

7

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)

8

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


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

12

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)


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

14

● 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


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

15

16

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

17

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

18

● 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)


19

● 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



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

20


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

22

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

23

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

24

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)

25

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

26

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)

27

28

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)

29

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)

30

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?

31

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)].

32

33

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

34

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


“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).

37

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)

38

-Yes, for disclosures of public health or safety dangers. Herman at 1379.

39

• 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

40

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


41

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.


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

43


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

44

45

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


46

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

47

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

48

49

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.

50

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.

51

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)

52

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

53

54

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

55

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

56

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

57

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

58

POSSIBLE PENALTIES —

REMOVAL, REDUCTION IN GRADE, SUSPENSION, OR REPRIMAND

DEBARMENT FROM FEDERAL EMPLOYMENT

(UP TO FIVE YEARS)

CIVIL PENALTY(UP TO $1,000)


59


RIGHTS OF CHARGED EMPLOYEE INCLUDE —

OPPORTUNITY TO RESPOND

LEGAL OR OTHER REPRESENTATION

HEARING BEFORE A MERIT SYSTEMS PROTECTION BOARD ADMINISTRATIVE LAW JUDGE

WRITTEN DECISION

60

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

61

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

62

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

[email protected]

OSC SPEAKERS/OUTREACH REQUESTS: (202) 254-

3600 Shirine Moazed

mailto:[email protected]

63

OSC WEB SITE(http://www.osc.gov)

64

OSC MAIL CONTACTS

U.S. OFFICE OF SPECIAL COUNSEL

1730 M STREET, N.W. (SUITE 218)

WASHINGTON, DC 20036-4505

QUESTIONS

?

65

prohibited personnel practices rights and remedies of federal employees under 5 u.s.c., chapters 12...

Documents

personnel decisions

prohibited basis

specific practices

discriminationhiring

dallas field officeu

merit systems principles

merit systemretaliation

2302b1 osc deferral