U.S. OFFICE OF SPECIAL COUNSEL OBTAINS PRECEDENT-SETTING RULING IN WHISTLEBLOWER RETALIATION CASE BROUGHT AGAINST SUPERVISOR

FOR IMMEDIATE RELEASE - 3/31/99
CONTACT: JANE MCFARLAND
(202) 653-7984      

    The U.S. Office of Special Counsel (OSC) today announced that, in response to its request, the Merit Systems Protection Board (MSPB) issued an order directing a supervisor’s current employer to impose a ten-day suspension for an act of whistleblower retaliation that the supervisor had committed during her previous employment with another federal agency. In its ruling, the Board agreed with OSC that it would undermine the deterrent effect of the disciplinary provisions of the Whistleblower Protection Act (WPA) to permit a supervisor to avoid discipline simply by obtaining employment with another federal agency while OSC’s case against her was pending.

    The violation of the WPA occurred when the supervisor, then employed by the Department of the Army, warned a subordinate employee not to notify state or federal regulators of allegations regarding the toxic contamination of a creek by a crew at an Army base, without first going through the chain of command. On January 28, 1999, the MSPB affirmed the decision of its Chief Administrative Law Judge on OSC’s petition for disciplinary action, finding that the supervisor had violated the WPA and directing her 10-day suspension.

    After the Board issued its order, OSC learned that the supervisor no longer worked for the Department of the Army, but that she had taken a new job at another federal agency. OSC then moved that the Board modify its order and direct that the supervisor’s new employer impose the suspension.

    The Board granted OSC’s motion. Rejecting the supervisor’s argument that it would be unfair to punish her for acts she had committed while employed by another agency, the Board reasoned that the prohibition against whistleblower retaliation is applicable to the federal government as a whole, and that the need to deter violations of the WPA would have continued even if the supervisor had left the federal service entirely.

    Special Counsel Elaine Kaplan said that she was “pleased by the Board’s decision” which, she said, “recognizes that a central purpose of the Whistleblower Protection Act is to deter supervisors from retaliating against their employees by making them subject to Board-ordered discipline.” Kaplan added “the Board’s decision in this case is a significant one, because it closes a potential loophole that would likely undermine the deterrent effect of the Act’s disciplinary provisions.” 

    The Board’s decision is captioned Special Counsel v. Sharon Beal, Docket No. CB-1215-94-0036-R-1, and was issued on March 26, 1999.

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