In my latest video, "MSPB Whistleblower Retaliation: How to Get In & What to Prove," I explore the essential steps federal employees must take to bring a whistleblower retaliation claim to the Merit Systems Protection Board (MSPB). The Whistleblower Protection Enhancement Act (WPEA) safeguards federal workers from retaliation when they expose wrongdoing within their agencies, but navigating the process can be complex. This article summarizes the key points covered in the video and adds critical information on what to expect after filing a claim with the MSPB.
1. Prohibited Personnel Practice
Whistleblowers who disclose fraud, waste, abuse, or other serious misconduct—or participate in legally protected activities such as engaging with the Office of Special Counsel (OSC) or the Office of Inspector General (OIG)—are protected under the WPEA. Retaliation against such employees is considered a prohibited personnel practice.
2. Routes to the MSPB
There are two primary routes to bring a whistleblower retaliation claim before the MSPB:
Individual Right of Action (IRA): This is an indirect path that requires first exhausting all administrative remedies, such as filing with the OSC. Once these steps are completed, a closure letter will be issued, allowing the whistleblower to appeal to the MSPB.
Direct Appeal: If the adverse personnel action is already within the MSPB's jurisdiction (e.g., wrongful removal, demotion, or suspension), the whistleblower can directly add their retaliation claim as an affirmative defense in the appeal.
3. Proving a Contributing Factor
The first hurdle in a whistleblower claim is showing that the protected disclosure or activity was a contributing factor in the agency’s decision to take adverse personnel action. This can be demonstrated through the knowledge-timing test (showing that the decision-maker knew of the protected activity and acted within a reasonable timeframe) or other relevant evidence.
4. Agency’s Burden of Proof
Once the whistleblower establishes a contributing factor, the agency must prove by clear and convincing evidence that it would have taken the same personnel action regardless of the whistleblowing. The MSPB considers several factors in this determination, including the agency's legitimate reasons, the presence of any motive to retaliate, and the consistency of the action compared to similar cases involving non-whistleblowers.
5. What Happens After You File a Claim with the MSPB?
Once you file your whistleblower retaliation claim with the MSPB, you might expect to proceed directly to a hearing—but not so fast. Before your case can advance, the judge will issue an Order Regarding Jurisdiction, requiring you to file an argument demonstrating that your claim meets the legal standards.
This order will outline the specific burdens of proof and detail what you must prove to establish your claim. The MSPB will then review your argument to determine if, assuming your facts are proven at a hearing, you could establish a meritorious whistleblower claim.
Because you will have a deadline to respond to this order, it's crucial to prepare ahead of time. Ensure you have your evidence ready and thoroughly research the burdens of proof to overcome these initial hurdles effectively.
For a more in-depth discussion and practical examples, click on the links in this article, listen to my podcast episode, and watch the full video below.
This overview provides a foundation for federal employees considering a whistleblower retaliation claim. Understanding these steps and the legal thresholds involved is crucial for effectively navigating the process and protecting your rights. Preparing in advance can make all the difference when facing the challenges of proving your case before the MSPB.
Comments