Developments at the MSPB: On October 30, 2013, the Merit Systems Protection Board (MSPB) issued four decisions in whistleblower reprisal cases, all containing favorable holdings for employees. These cases show the ripple effects of the Whistleblower Protection Enhancement Act of 2012 (WPEA) on the MSPB’s case law, a topic previously discussed in this blog and in Passman & Kaplan‘s Federal Legal Corner, as well as an overall trend of more favorable outcomes in whistleblower reprisal cases.
In Schoenig v. Dept. of Justice, 2013 MSPB 85, the MSPB found that the employee had engaged in protected whistleblowing by disclosing violations of workplace safety regulations. Applying the post-WPEA Day decision, the MSPB found Schoenig’s disclosure protected even though she made it in the course of performing her duties. The case, which had been dismissed, was remanded for a merits hearing.
In Belyakov v. Dept. of Health and Human Services, 2013 MSPB 86, the MSPB ordered a new hearing in a case where the administrative judge had barred Belyakov from presenting his prima facie case of whistleblower reprisal at hearing in a manner now prohibited by the WPEA. WPEA Section 114 abolished the practice of skipping an appellant’s prima facie whistleblower reprisal case at hearing; as a result, little-to-no evidence would be allowed concerning whistleblower reprisal and the hearing would instead focus on whether the agency had met its ‘clear and convincing evidence’ burden for showing that it would have taken action against the whistleblower anyway. The MSPB declined to decide whether Section 114 applied retroactively to Belyakov’s case, finding that even under the pre-WPEA caselaw the administrative judge erred in barring Belyakov’s whistleblower reprisal evidence. The administrative judge also prohibited Belyakov himself from testifying at the hearing. Belyakov was representing himself in his MSPB appeal, and so did not know to list himself as a requested witness for his own hearing. The MSPB ordered that Belyakov be allowed to testify at the remand hearing.
In Chavez v. Dept. of Veterans Affairs, 2013 MSPB 83, the MSPB found that probationary employee Chavez had suffered whistleblower reprisal in being discharged from a geriatric facility, after making protected whistleblower disclosures of violations of regulations and threats to patient safety. The MSPB ordered Chavez reinstated.
Finally, in Edwards v. Dept. of the Air Force, 2013 MSPB 84, the MSPB reinstated the appeal of Edwards for a jurisdictional hearing on whether Edwards was a career or career-conditional employee (and not an employee on a term appointment), as well as whether Edwards had met the jurisdictional requirements of pleading a whistleblower reprisal claim.
If you believe that you are being retaliated against because of protected whistleblowing, please feel free to contact Passman & Kaplan for an initial consultation.
