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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