MSPB Finds Army Retaliated Against Whistleblower
This case law update was written by Victoria E. Grieshammer, an attorney at the law firm of Shaw Bransford & Roth, where since 2021 she has represented federal officials and employees in all aspects of federal personnel employment law. Ms. Grieshammer also advises federal agencies and employers on employment issues, such as proposed disciplinary actions and other employment-related litigation.
The Merit Systems Protection Board (MSPB or the Board) held that the Department of the Army retaliated against the appellant, a federal employee, for making protected disclosures regarding the Department of Defense’s disposal of her husband’s remains. This marks the first precedential decision on the Whistleblower Protection Enhancement Act (WPEA) issued by the Board since it regained a quorum and, notably, the Board held in favor of the employee.
The appellant was employed at the Agency’s Picatinny Arsenal in New Jersey as a Management Support Assistant with the Office of the Project Manager (PM MAS). Appellant’s husband, a U.S. Army sergeant and technician, was killed in action in Iraq on July 17, 2006. His remains were flown to Dover Air Force Base, where they were handled by the Air Force Mortuary Affairs Operations (Dover MAO) personnel. On April 21, 2011, after appellant inquired about the disposition of her husband’s remains, Dover MAO informed her that his remains had been cremated, incinerated, and sent to a landfill in Virginia.
After learning of this, the appellant notified the media as well as Rep. Rush Holt Jr. (D-NJ). The Washington Post published an article identifying appellant by name in December 2011. Rep. Holt delivered a speech a week later in which he explained that he would not vote for the National Defense Authorization Act of 2012 because of the incident. He also identified appellant by name.
Meanwhile, in March 2012, appellant transferred from PM MAS to the Naval Sea Systems Command. Appellant was unhappy with the position, though. PM MAS issued a vacancy announcement for an Executive Assistant position in September 2012, and appellant applied and was selected as an eligible candidate. Then, also in September 2012, two more articles were published addressing appellant’s husband’s remains. In early October 2012, the selecting official canceled the vacancy announcement. The Agency posted a second vacancy announcement for the position, which included three additional duties. Appellant applied again and was again selected as an eligible candidate. Another candidate was chosen for the position, though.
Appellant filed a complaint with the Office of Special Counsel (OSC) alleging that she was not selected for the position as reprisal for her disclosures. OSC terminated its inquiry, and appellant filed an appeal with the MSPB. An administrative judge found that the appellant proved that she made protected disclosures and that the disclosures were contributing factors to the Agency’s decision to not select appellant for the position. The Agency filed a petition for review.
Under WPEA, an appellant must prove that she made a protected disclosure and that such disclosure was a contributing factor in a personnel action taken against her. If the appellant makes this showing, the Agency must prove that it would have taken the same personnel action absent the protected activity.
An appellant makes a protected disclosure when she reasonably believes she is disclosing a violation of any law, rule, or regulation, gross management, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. Notably, the appellant only needs to prove that a reasonable person would believe the disclosure fell within one of these categories. The administrative judge found that the Agency’s actions violated a Department of Defense Directive requiring that the remains of all military members “be handled with the reverence, care, and dignity befitting them and the circumstances.” It further found that, even if Dover MAO did not actually violate this directive, the appellant reasonably believed that the Agency violated some law, rule, or regulation. The Board agreed.
The Board then addressed whether the appellant’s protected disclosures were a contributing factor in the personnel action. Contributing factor is often proved by the “knowledge/timing test,” which asks the appellant to show that the official taking the personnel action knew of the protected disclosure and took the action within a proximal time period such that “a reasonable person could conclude that the disclosure was a contributing factor.” Here, the evidence showed that the hiring officials were aware of the appellant’s disclosures beginning in spring of 2011, and that news reports of the disclosures continued until September 2012—around one month before appellant was not selected. The Board held that this satisfied the contributing factor element.
The Board next determined that the Agency failed to show that it would not have selected appellant despite her disclosures. It examined three factors: (1) the strength of the Agency’s evidence; (2) the existence and strength of any motive to retaliate; and (3) evidence that the Agency took similar actions against employees who did not engage in whistleblowing. The Board held that the Agency’s reasons for selecting the appellant were inconsistent and lacked credibility. It further reasoned that, although the misconduct exposed by appellant’s disclosures was not directly related to the officials who made appellant’s hiring decision, the disclosures reflected poorly on Department of Defense as a whole. Therefore, the hiring officials had motive to retaliate as representatives of the institution. Lastly, the Board pointed out that the Agency did not introduce any evidence pertaining to the third factor and, as a result, the factor “cannot favor the Agency.”
The Board then rejected the Agency’s evidentiary arguments, clarifying that hearsay is admissible in administrative proceedings and that the administrative judge properly questioned appellant about her knowledge of the Dover MAO policy at issue. It then held that the Agency failed to prove its allegation that the judge was sympathetic to the appellant. An administrative judge’s conduct only warrants a new adjudication if his actions show “deep-seated favoritism” making it impossible to render a fair judgment. Here, the Board held that the judge had “a measured and reasonable response to the Agency’s appalling suggestion that dumping service members’ remains in a landfill could ever qualify as” dignified or reverent.
For these reasons, the Board affirmed the administrative judge, ordering the Agency to appoint the appellant to the Executive Assistant position and provide appellant with back pay.
Find the full case here: Smith v. Department of the Army.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.