MSPB focus

By Neil McPhie

WPEA changes the game on whistleblower reprisal case outcomes

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Neil McPhie is Director of Legal Services for Tully Rinckey PLLC.

There has been little question among my colleagues who practice federal employment law that the Whistleblower Protection Enhancement Act of 2012 is going to vastly change the disposition track record of the Merit Systems Protection Board (MSPB) when it comes to whistleblower reprisal claims. While only time will tell just how much more beneficial this act will be among appellants, compared to those covered only by the Whistleblower Protection Act of 1988 (WPA), the MSPB recently supplied interesting data that could serve as a benchmark against which that change could be measured.

 

As required by the WPEA, the MSPB included in its Annual Performance Report for Fiscal Year 2013 detailed data on the first year in which the WPEA was in effect. The MSPB’s annual reports have regularly detailed the number of individual right of action (IRA) appeals, which whistleblowers can only file after the Office of Special Counsel (OSC) declines to pursue corrective action or fails to act on their complaint within 120 days. However, as the new report illustrates, this IRA data only provides half of the picture, as it excludes whistleblower reprisal-influenced “otherwise appealable actions” (OAAs), such as suspensions of more than 14 days, demotion and removal. For personnel actions not appealable to the MSPB, such as suspensions less than 15 days, whistleblowers must go the OSC-IRA route.

 

In fiscal year 2013, MSPB regional and field offices decided on 232 OAA cases with whistleblower reprisal claims and on 288 IRA cases. That same fiscal year, the MSPB received 239 OAA cases with whistleblower reprisal claims and 418 IRA appeals. IRA cases decided were up 30 percent from fiscal year 2009, which was the last year I served as chairman of the Board, and that number will only get bigger. The MSPB in its performance report continued warning that it expects the WPEA to result in an increase in OAA and IRA appeals.

 

I’d like to point out that I do not regard OAA cases as true whistleblowing cases. On these cases, whistleblowing is an affirmative defense to the adverse personnel action. The case may be decided on the personnel action and never reach the whistleblowing defense. Consequently, it is important to be cognizant of the difference between OAA appeals with claims of whistleblowing reprisal and OAA appeals in which the MSPB decided on the whistleblowing defense. The report also provides data on the resolution of whistleblower reprisal claims in OAA appeals. IRA cases, on the other hand, are true whistleblower cases.

 

Most interesting in this report is the data on the outcomes of IRA and OAA appeals. At the initial appeal level, 70 percent of IRA appeals resulted in dismissals in fiscal year 2013, but only 48 percent of OAA appeals saw the same outcome. In future years, the MSPB expects to see fewer dismissals due to “the [WPEA’s] expanded definition of a protected disclosure.” That “expanded definition” covers researchers and scientists at research-centric agencies who report “censorship related to research, analysis, or technical information” and employees who disclose, among other things, previously revealed information or information related to old events.

 

While most of the whistleblower reprisal appeals the MSPB decided on in fiscal year 2013 were filed prior to the WPEA’s effective date, that anticipated dismissal decline trend played out, to an extent, in some cases. In Day v. Department of Homeland Security (2013), the MSPB found that section 101 of the WPEA, which clarified several types of disclosures that are protected (e.g., disclosures made to wrongdoers or in the normal course of duty, disclosures not made in writing or while not on duty, and disclosures concerning previously revealed information or incidents that occurred long ago), can be applied retroactively to cases that were pending when the act took effect in late December 2012.

 

The Day decision later prompted the Board in Heath v. Department of the Army (2013) to remand the case after an MSPB judge had improperly denied the appellant corrective action under the WPA. The appellant, an animal health technician, had blown the whistle on unauthorized actions during a surgical procedure on goats, a gross waste of funds and gross mismanagement. The MSPB judge based the denial on the fact that the appellant’s disclosures were made in the normal course of duty and to a wrongdoer. On remand, however, the MSPB judge earlier this year ordered the agency to provide the appellant, who had been stripped of his supervisory duties, with corrective relief.

 

Another type of outcome at the initial appeal level I expect to change is the settlement rate. In fiscal year 2013, 53 percent of the OAA appeals with whistleblower claims that were not dismissed were settled, and 66 percent of IRA appeals that were not dismissed were settled. With the WPEA making uncapped compensatory damages available to whistleblowers, as I have discussed in an earlier article, I would not be surprised to see these settlement rates rise in the coming years. Agencies are going to increasingly find themselves weighing whether it is more cost effective to negotiate a settlement amount or to risk having the MSPB order it to pay a likely even greater sum by awarding compensatory damages.

Timing is everything: MSPB braces for involuntary retirement appeals

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Neil McPhie is Director of Legal Services for Tully Rinckey PLLC.

Timing is a crucial factor when it comes to deciding when to retire. It is also important when it comes to how older workers perceive their retirements. In fact, research has shown that retiring sooner than expected makes older workers two times more likely to perceive their retirements as being forced, compared to those who retire on time.

With the Government Accountability Office recently reporting that 600,000 of the federal government’s permanent career employees will become eligible for retirement by 2017 – up from 270,000 in 2012 – there is a strong possibility that after these employees retire, some will end up believing they were forced out. One study, for example, showed that nearly a third of older workers surveyed believed their retirements were forced.

In its draft Strategic Plan for FY2014-2018, the Merit Systems Protection Board (MSPB) warned that it anticipated an “[i]ncrease in appeals workload due to increased retirements (e.g., benefits claims and alleged forced retirement cases).” There are many reasons why workers may believe they were forced to retire. Disability and illness tend to be the leading causes for involuntary retirement, as Canadian researchers have noted. So far as the MSPB is concerned, involuntary retirement is akin to removal, making it an appealable adverse action. While I was serving as MSPB chairman, the Board pointed out in Mc Corcle v. Department of Agriculture (2005) that “[a]llegations of coerced resignations or retirements tend to fall into one of two scenarios: when the agency has proposed or threatened an adverse action and the employee resigns or retires in the face of the impending action; or when the agency takes actions that make working conditions so intolerable that the employee is driven to an involuntary resignation or retirement.”

Another type of coerced resignation or retirement, which I fear will become more common as agencies lose years of institutional knowledge through retirements, involves agency misinformation. In an opinion I co-authored for Paige v. U.S. Postal Service (2007), the Board noted, “a resignation is involuntary if the agency made misleading statements upon which the employee reasonably relied to his detriment.” If an employee’s retirement decision was based on misinformation, he or she must keep in mind that the agency’s excuse for providing the incorrect information is largely irrelevant. As the Board explained in Paige, “[t]he appellant, however, need not show that the agency intentionally misled him…That is, the agency could have provided the misleading information negligently or even innocently; if the appellant materially relied on the misinformation to his detriment, his resignation is considered involuntary.”

The Board has repeatedly stressed, as it did in Coufal v. Department of Justice (2004), that  “[t]he touchstone of the ‘voluntariness’ analysis and the common element in all Board cases involving alleged involuntary resignations or retirements is that factors have operated on the employee’s decision-making processes that deprived him or her of freedom of choice.” With the positive perception of a retirement largely riding on when federal employees retire, they must not let agencies get away with forcing them to leave the federal civil service before the time that is right for them. This is one freedom federal employees do not want to lose, because the quality of their golden years may hinge on it.

 

Sometimes, ‘I’m sorry’ is not enough.

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Neil McPhie is Director of Legal Services for Tully Rinckey PLLC.

There is never a want of news articles about politicians, celebrities or business leaders who do or say something stupid and – after they stir widespread public outrage – apologize, or provide something that loosely resembles an apology, for their actions. For the most part, whether the genuine or pseudo apology came from a congressman who threatened to break a news reporter “in half,” or from a chief executive who publicly complained about two female employees’ “distressed babies,” this apologize-after-outrage strategy has proved successful for high-profile individuals. However, it is less effective for federal employees.

The motto, “forgive and forget,” does have its place in the federal merits system. One of the 12 so-called “Douglas” factors that deciding officials are supposed to consider when weighing how severely an employee should be punished is his or her rehabilitative potential. The Merit Systems Protection Board (MSPB) has repeatedly stressed an “appellant’s expression of remorse when the agency investigated his misconduct demonstrates rehabilitative potential,” as it noted in Fushikoshi v. Department of Agriculture (2013). However, half-hearted apologies will not fly with deciding officials or the Board, and I have long believed even genuine apologies cannot eclipse the fact that an employee engaged in misconduct.

When I was chairman of the MSPB, I heard the case Heaggans v. Department of Defense (2006). This case involved a military pay supervisor whom the agency demoted for violating agency policy regarding Internet use and sending to subordinates an inflammatory, religious-based statement in which she suggested the United States will “cleanse” Islamic regions. This message was sent to 28 subordinates, and one of them found its message deeply upsetting. The email was forwarded to two Muslim employees who likewise found it upsetting. The supervisor subsequently sent another email apologizing for her initial message.

An MSPB administrative judge reversed the agency’s decision, finding the appellant’s message in this email was protected by the First Amendment’s right to free speech. The judge also noted that out of the 30 employees who received the email, only three were offended by it and only one of them rejected her apology, believing it to be insincere. Only one of those upset employees worked in the supervisor’s unit, and the judge found the appellant should not be held responsible for any post-apology “commotion.”

The agency filed a petition for review and the Board affirmed the MSPB judge’s decision, but I wrote an opposing opinion. “The fact that only three employees were identified as being upset by the appellant’s email and that one of those employees accepted her apology does not make the appellant’s action in sending the email acceptable,” I said. The apology did not change the fact that the supervisor’s message “impacted the efficient operation of the agency by disrupting employees in the performance of their official functions and disparaging the religion of some workers.”

It is one thing for a federal employee to express remorse after learning something he or she did was wrong; it is another thing for an employee to express remorse because he or she feels obligated to do so. Sincerity counts, and deciding officials and the MSPB look for it. The case Laniewicz v. Department of Veterans Affairs (1999), for example, involved a telephone operator whom the agency removed because she, among other things, misdirected a cardiac failure response team during an emergency and then verbally abused a volunteer. At the recommendation of a deciding official the operator wrote a letter of apology to the volunteer, even though she did not believe she was at fault. Consequently, the Board noted, the deciding official found the employee “lacked sincere regret for her behavior and a conscious decision to reform” and “had little chance for rehabilitation.” The Board found the agency’s removal of her to be reasonable.

Federal employees need to remember that it usually gets harder to apologize for misconduct the longer they wait, and deciding officials may go easier on them the sooner they say “sorry.”

Neil McPhie is Director of Legal Services for Tully Rinckey PLLC and the former chairman of the U.S. Merit Systems Protection Board. He concentrates his practice in federal sector employment and labor law and can be reached at info@fedattorney.com.

Office pools: A bigger gamble than you think

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Neil McPhie is Director of Legal Services for Tully Rinckey PLLC.

With the National Collegiate Athletic Association’s March Madness basketball tournament around the corner, federal employees will again face the temptation of participating in office pools and betting a few dollars. It never ceases to amaze me how many federal employees, especially office pool organizers, consider brackets to be a benign game. They are, however, gambling much more than they realize, and during my first year as chairman of the Merit Systems Protection Board, the Board made clear that the stakes, indeed, are high.

The Standards of Conduct prohibit federal employees from participating in any gambling activity “[w]hile on Government-owned or leased property or on duty for the Government.” NASA’s Table for Disciplinary Offenses and Penalties, for example, calls for anything from a reprimand to a three-day suspension for a first-time violation of this regulation. A third-time violation could result in anything from a seven-day suspension to removal.

Sometimes agencies may not punish employees who participate in such pools or supervisors who fail to report such activity so long as they cooperate with an investigation that focuses on the operators of the gambling operation. That was what happened in Howard v. U.S. Postal Service (1984). The employee in this case had been the operator of a numbers game. Even though the employee had 18 years of service with the agency, the Board affirmed his removal. The Board said “[t]he offense with which appellant was charged was serious and directly related to his ability to perform his duties since it was conducted on the job site and during the work day. Moreover, it is clear that appellant’s gambling activity affected the work of others too, because it occurred when they should have been performing their duties.”

More recently in Anderson v. Smithsonian Institution (2013), a probationary employee claimed his agency removed him for gambling while on agency premises. He claimed an agency supervisor had asked him to administer a football poll. The Board affirmed an MSPB judge’s dismissal of the employee’s appeal for lack of jurisdiction. And in Whitemore v. Department of Labor (2009), the MSPB found an employee’s disclosure to his agency’s inspector general about his supervisor conducting an “illegal gambling pool for the NCAA Men’s Basketball tournament” was protected under the Whistleblower Protection Act. The agency later confiscated the supervisor’s computer, and the illegal activity was reported to an administrator for action.

In Hunt v. Department of Health and Human Services (1985) an employee had argued that anti-gambling regulation violations were not serious offenses and that office gambling was “passively if not actively encouraged by management.” The U.S. Court of Appeals for the Federal Circuit rejected this view and declared, “a violation of the anti-gambling regulation, even for a first-time offense, is punishable by removal for the efficiency of the service where the evidence to support the charge is substantial and credible, and the decision is not arbitrary, capricious, or unlawful.”

On at least one occasion, in Luna v. Department of the Army (1988), the Board had allowed an employee charged with operating and promoting an illegal gambling operation to avoid removal and instead receive a 90-day suspension. However, in Jones v. Department of the Interior (2004), the Board, while I was chairman, noted that Luna was a unique case because the employee “did not profit from the gambling operation, and he had rehabilitative potential because he was remorseful, accepted full responsibility for his conduct, and alerted the agency to continuing gambling activities.” Additionally, there were no indications that the employee in Luna was convicted on his conspiracy and illegal gambling charges. Ultimately, the Board maintained that “removal is appropriate for on-duty gambling offenses” and held that “Luna does not mandate mitigation.”

They don’t call it “March Madness” for nothing. Basketball fans can lose their heads, and federal employees can lose their jobs.

When networking fails, is discrimination to blame?

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Neil McPhie is Director of Legal Services for Tully Rinckey PLLC.

From a career advancement standpoint, sometimes one of the most important things a federal employee can do is have lunch with another federal employee. Of course, I’m not suggesting a promotion can hinge on a roast beef sandwich on rye. I’m talking about professional networking. In fact, a 2009 study published in the Journal of Applied Psychology found that “networking behaviors can contribute to differential salary growth over time” and “[i]ndividuals who engage in networking behaviors are more satisfied with their careers.”

 

Unfortunately, some federal employees, especially women, are missing out on various networking opportunities. They are not getting invited to lunch or other office meetings or functions, and, consequently, they are being starved of career-advancing opportunities. As an Equal Employment Opportunity Commission (EEOC) Women’s Work Group recently noted, this exclusion from networking opportunities results in “women not being privy to multidimensional professional and social relationships that may lead to promotional opportunities and vital career enhancement prospects.”

 

As far back as 1992, the MSPB had observed this trend, noting that “[t]here is, then, a substantial minority of men and women who believe that exclusion from a particular group or network can hinder their promotion potential.” One of the most important areas where networks come into play is job changes, the MSPB said. “[E]mployees, particularly at higher levels, learn about job openings from, or are recommended for jobs by, members of their networks.”

 

It is important for employees to remember that supervisors might not invite them to a meeting because some meetings are reserved for senior staffers, as was the case in Zenone v. Department of the Interior (2006). Sometimes employees do not realize they are welcome to join a supervisor or co-workers at lunches or other meetings, or they were not in the office when invitations to a social gathering were extended, as was the case in Kelly v. Department of Justice (2000). And sometimes a supervisor may accidentally forget to invite an employee. If the supervisor apologizes for this oversight, the EEOC may not find it to be deliberate or retaliatory, as was the case in McLemore v. Department of Transportation (2007).

 

Nevertheless, discrimination can result in an exclusion from attendance. Employees whose careers suffer due to such misconduct could be entitled to compensatory damages. For example, the EEOC case, Feris v. Environmental Protection Agency (1998), involved a complainant with a hearing disability who filed an EEO complaint alleging disability discrimination in violation of the Rehabilitation Act. His agency had failed to provide him with a reasonable accommodation in the form of a sign language interpreter at staff meetings and training sessions.

 

The agency in Feris issued a final agency decision (FAD) with a no discrimination finding. But on appeal the Commission disagreed, noting that “each time appellant was unable to attend a meeting at which he could have had some influence over the outcome, he was harmed.” The agency did award the appellant $15,000 in compensatory damages, but this amount did not reflect how the discrimination harmed the appellant’s career and reputation. On appeal again, the appellant claimed the agency “deprived him of access to the person to person contact experienced in small meetings and workgroups that are at the heart of the development of his professional career.” Taking into consideration the emotional harm and damage to the appellant’s career, the commission awarded him $35,000 in compensatory damages.

 

The EEOC Women’s Work Group recommended, among other things, agency-sponsored educational events on topics such as networking and hosting networking opportunities and events during work hours. These proposals should help make employees – not just women – feel more included. However, if employees believe they are being kept out of a professional circle due to discriminatory reasons, they should consult with a federal employment law attorney who can help push them into the network.

Unequal treatment for data breach culprits puts info at risk

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Neil McPhie is Director of Legal Services for Tully Rinckey PLLC.

There is no question now that the federal government is struggling to keep sensitive personal information under wraps. A recent Government Accountability Office study found that in fiscal year 2012, federal agencies reported over 22,100 data breaches involving personally identifiable information (PII) – up 111 percent from three years earlier. While the GAO identified several sources of data breaches, ranging from the inadvertent loss of paper documents or portable electronic devices to cyber attacks waged by hackers or foreign nations, I remember hearing cases at the Merit Systems Protection Board (MSPB) about another type of source: federal employees who use other employees’ confidential personnel records to support Equal Employment Opportunity (EEO) complaints.

Agencies that selectively impose discipline on employees who cause data breaches, whether accidentally or intentionally, should be especially worried about this last type of source. Due to a 2012 MSPB decision, federal employees who use or remove official government documents to support EEO complaints may be able to evade discipline. This PII pickle stems from the fact that an agency’s attempt to discipline an employee who uses confidential personnel records during the EEO process can be perceived as unlawful retaliation. That was the main issue in Smith v. Department of Transportation (2007).

Smith involved a Federal Aviation Administration management and program analyst who claimed the agency discriminated against him because of his race in violation of Title VII of the Civil Rights Act when it did not select him for a supervisory program analyst position. While the complaint was being investigated, the complainant claimed he received an anonymously sent envelope containing information pertaining to the selected candidate’s EEO files. The selected candidate had claimed he was Native American to get the supervisory position, but he had identified himself as white in an EEO complaint he filed while in another position. The complainant provided this information to the EEO investigator and his attorney and later destroyed the anonymous letter.

During the disposition process, the selected candidate began to suspect his EEO complaints had been compromised. At his request, the agency conducted an internal investigation. It resulted in a 30-day suspension for the complainant based on the charges of 1. “unauthorized use of official government information”; 2. “unauthorized use of official government documents obtained through government employment”; 3. “unauthorized removal and possession of a personal government document”; and 4. “misstating information for another’s government claim.” He appealed this adverse action to the MSPB.

The appellant claimed this suspension was a retaliatory act for his prior EEO contact. An MSPB administrative judge did not sustain any of the charges and found the suspension to be retaliatory. However, the Board – while I was chairman – reversed the administrative judge’s refusal to sustain the three unauthorized use and removal charges. It found the suspension was not retaliatory, noting that “this is not a situation where the appellant innocently came across information which supported his discrimination claim” and “[t]he appellant cannot rely upon the anti-retaliation provisions as an insurance policy or a license to flaunt agency rules.” In a concurring decision, I said, “Nothing in Title VII of the Civil Rights Act, and nothing in the rules governing federal-sector EEO complaints, indicates that an employee who works in the human resources field should have an advantage when he files his own EEO complaint because he has access to the confidential personnel records of other employees.”

Following the MSPB’s decision, the appellant filed a petition for review with the EEOC, where he raised a disparate treatment claim. While the agency provided examples of two employees who were disciplined for disclosing information in violation of the standards of conduct while prosecuting their EEO complaints, evidence emerged that it had not disciplined another employee who had engaged in similar misconduct but who had not engaged in prior protected EEO activity. The agency said it had disciplined employees for similar violations that occurred outside of the EEO process, but it provided no further information to support that claim.

The EEOC in 2012 found the agency’s refusal to comply with an order to provide comparative treatment information was enough to establish pretext for a retaliation claim. Disagreeing with the MSPB’s decision, the Commission referred the case back to the Board. Concurring with and adopting the EEOC’s decision, the Board ordered the agency to cancel the appellant’s suspension and provide him with back pay and benefits.

I maintain, as I did in 2007, that an employee does not have a right to “disclose confidential records that did not pertain directly to him and that were not available to employees outside the human resources office.” The challenge for agencies lies in finding a “happy” medium for disciplining employees who improperly disclose government information while in the EEO process and others who are outside of that process. A failure to do so may encourage EEO complainants to skirt standards of conduct, putting other employees’ confidential records at risk.

Neil McPhie is the Director of Legal Services for Tully Rinckey PLLC and the former chairman of the U.S. Merit Systems Protection Board. He concentrates his practice in federal sector employment and labor law and can be reached at info@fedattorney.com.

Favortism: Do federal employees know it when they see it?

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Neil McPhie is Director of Legal Services for Tully Rinckey PLLC.


“I know it when I see it.”

That was what U.S. Supreme Court Justice Potter Stewart said in the 1964 case of Jacobellis v. Ohio, when he declined to provide a definition for a type of sexually obscene film that is not constitutionally protected. Stewart’s justification underscores how certain materials or practices can seemingly escape adequate description and how their identification is largely a subjective matter.

A recently-released Merit Systems Protection Board (MSPB) report on perceptions of favoritism makes clear that many federal employees are applying Stewart’s I-know-it-when-I-see-it standard to this prohibited personnel practice (PPP).

The MSPB report shows just how widespread perceived favoritism is in the federal workplace. For example, 28 percent of employees surveyed said they believe their supervisors engage in favoritism and 30 percent of human resources management employees likewise reported a belief in supervisory favoritism.

As chairman of the MSPB, I frequently heard individual right of action appeals from whistleblowers who had made disclosures about their supervisors’ alleged engagement in favoritism and who later claimed to have been victims of reprisal. It became clear to me that cases involving allegations of favoritism present issues over definition and personal perception.

For starters, the section of statute that defines the merit system principles, which include the “protection against…personal favoritism,” does not define “favoritism.” In its report, the MSPB defined favoritism by borrowing from a subsequent section of law that prohibits the granting of “any preference or advantage not authorized by law, rule, or regulation to any employee or applicant for employment…for the purpose of improving or injuring the prospects of any particular person for employment.”

I would add that favoritism can sometimes be treated as an abuse of authority, which in Pasley v. Department of the Treasury (2008) the Board defined as “an arbitrary or capricious exercise of power by a federal official or employee that adversely affects the rights of any person or results in personal gain or advantage to himself or preferred other persons.”

The perception issues may arise, as the new report suggests, from the fact that the “typical work environment features ambiguity that precludes full confidence in supervisors making merit-based decisions.” But as MSPB chairman, I found that supervisors can often hide in this ambiguous grey area between perceived favoritism and actual favoritism. While the MSPB’s report provides valuable insights on why employees believe this PPP is so prevalent in the federal workplace, I worry that this strong emphasis on perception takes away from the fact that favoritism is an actual problem. Painting the problem as something in the heads of employees could dissuade them from reporting instances of favoritism to the Office of Special Counsel or their agency’s inspector general.

Due to the subjective nature of many supervisory decisions, it is often difficult to pin their actions as definitive examples of favoritism. Rare are those cases when an adjudicating body can describe an agency supervisor’s actions as constituting an “old boy network in operation” involving “undiluted favoritism,” as the 1st U.S. Circuit Court of Appeals did in Foster v. Dalton (1995).

Nevertheless, federal employees should not refrain from blowing the whistle on a supervisor’s abuse of authority or engagement in favoritism because they lack black-and-white evidence of the PPP. As I noted in the decision I co-authored for Pasley, the Whistleblower Protection Act (WPA) does not establish a “de minimis [or minimum] standard for abuse of authority as a basis of a protected disclosure,” meaning the WPA should protect them against reprisal so long as they reasonably believe this alleged PPP occurred.

I agree with the MSPB in its report that improving transparency will decrease perceptions of favoritism. But I would encourage employees who encounter what reasonably appears to be favoritism, whether in the form of pre-selection or preferential treatment, to call it as they see it.

Agencies will pay for whistleblowers’ pain and suffering

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Neil McPhie is Director of Legal Services for Tully Rinckey PLLC.


Putting a price tag on pain and suffering is an unpleasant task, and it was one I fortunately did not have to do very often while serving as the chairman of the Merit Systems Protection Board (MSPB). On those not-so-common occasions where the MSPB heard a so-called “mixed case,” which touched on both discrimination and adverse action issues, statute allows the Board to consider awarding compensatory damages to appellants who proved they were victims of certain types of intentional discrimination for “emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary [i.e., non-monetary] losses.”

I always found it odd how the pain and suffering of federal employees who were subjected to intentional discrimination could be valued under statue anywhere from up to $50,000 or $300,000, depending on the appellant’s agency and the severity and duration of the non-pecuniary losses he or she incurred, yet, at the same time, the pain and suffering of federal employees who where subjected to retaliation for blowing the whistle essentially had no value, because the Whistleblower Protection Act (WPA) did not provide for compensatory damages.

Fortunately, the Whistleblower Protection Enhancement Act of 2012 (WPEA) has put an end to this divergent approach toward the valuation of pain and suffering. This law, which took effect Dec. 27, 2012, added compensatory damages to the mix of correction actions the MSPB is authorized to order in whistleblower retaliation cases. This amendment will have a significant impact on agencies’ financial situations because it not only creates new liabilities (i.e., compensatory damages), it also does not cap them, unlike the similar liabilities associated with findings of intentional discrimination.

Just how significant this impact will be remains to be seen. I am not familiar with any MSPB cases in 2013 in which a whistleblower was awarded compensatory damages under the WPEA. Last August, in Barbara R. King v. Department of the Air Force, the Board did rule against the retroactive application of the WPEA’s compensatory damages section to an appeal filed before the law took effect.

In 2014, we will likely start seeing more whistleblower retaliation appeals seeking compensatory damages. The changes to the law “may also lead to more addendum appeals such as claims for compensatory and other damages or attorney’s fees,” the MSPB warned in its latest Annual Performance Report and Plan. We will also start getting a better sense of the fiscal implications of the WPEA’s compensatory damages provision. At the Equal Employment Opportunity Commission (EEOC), agencies found to have violated anti-discrimination laws were ordered to pay $7.2 million in compensatory damages in cases closed in fiscal year 2011. The U.S. Postal service accounted for 51 percent of that amount, according to the EEOC’s latest Annual Report on the Federal Work Force.

Traditionally, the EEOC and MSPB have looked to awards in similar discrimination cases to determine the appropriate amount for compensatory damages. For example, in Linda D. Edwards v. Department of Transportation (2011), an MSPB administrative judge, citing EEOC decisions, pointed out that $25,000 was an “appropriate amount as the complainant presented sufficient objective evidence to establish that he had experienced, mental anguish, emotional distress, sleeplessness, irritability, loss of self-esteem, and injury to professional reputation as a result of his termination for a period of 6 months.”

So far, EEOC and MSPB awards have mostly moved in tandem because statute had put caps on the award amounts in discrimination cases. Now that the WPEA has removed the cap on compensatory damages in whistleblower retaliation cases, it will be interesting to see if valuations of reprisal-induced pain and suffering at the MSPB will pull ahead of those at the EEOC.

Agencies reluctant to show cards, undermine due process in hiring

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These days, private sector employers want more information about job candidates, aside from what has been provided through normal channels, such as résumés. A 2012 CareerBuilder survey found that almost two out of five employers researched job candidates on social networking sites. While this independently-obtained, unrebutted information is generally considered fair game in the realm of private sector recruitment, it can be unlawful in the federal civil service.

At the Merit Systems Protection Board, this type of information is referred to as an “ex parte” (i.e., one-sided) communication. Federal employees have a constitutional right to be notified of the reasons for a removal action and to respond to them. When a deciding official bases a removal decision on information from an ex parte communication not mentioned in a removal notice, the employee is deprived of the opportunity to adequately respond to all of the charges against him or her.

I have long been concerned about due process violations caused by ex parte communications, and I worry the problem is worsening. In fact, shortly before President George W. Bush in December 2003 designated me as the MSPB’s vice chairman, I butted heads with the board’s chairman in Shockley v. U.S. Postal Service (2003). I sought to oppose the removal of an employee whose due process rights appeared to me to have been violated by ex parte communications received by a deciding official.

To me, the chairman in this case seemed overly concerned with how consequential ex parte communications were to the charges. Yes, the U.S. Court of Appeals for the Federal Circuit’s decision in Stone v. Federal Deposit Insurance Corporation (1999) said, “Only ex parte communications that introduce new and material information to the deciding official will violate the due process guarantee of notice.” And to determine what qualifies as “new and material” information, the Board needs to consider whether the information: 1. is cumulative or new; 2. was known to the employee who also had the opportunity to respond to it; and 3. would unduly pressure the deciding official into making a particular decision. However, as I stated in Shockley, “Nothing in these factors…indicates that the materiality of an ex parte communication should be judged, for due process purposes, according to whether the communication affected the outcome of the case.”

The MSPB seems to forget that all evidence is cumulative; it builds and builds in the mind of the fact finder. Consequently, the Board has operated under the assumption that it can identify what tidbit of evidence tilted the scale in the mind of the deciding official. It is like pinpointing the exact straw that broke the camel’s back.

The Federal Circuit’s recent decision in Young v. Department of Housing and Urban Development (2013) highlighted the dangers associated with this underestimation of cumulative information. In this case, the agency claimed ex parte communications to a deciding official did not result in a due process violation; they were cumulative in that they merely “confirm[ed] and clarif[ied] information that was already contained in the record.” The court rejected this assertion, noting that the ex parte communications constituted the introduction of new and material information because they marked “a ‘huge’ departure from written statements already on the record.” Further, the court said “the first Stone factor [i.e., cumulative v. new information] strongly suggests a due process violation while any deficiency of the third factor [i.e. undue pressure] is less significant.”

While I doubt Young will compel agencies to show all their cards when it comes to all of the reasons behind removal actions, the decision at least emphasizes that every card counts, whether it is an ace or a deuce. And it is up to federal employees and their attorneys to make sure agencies are hiding nothing up their sleeves.

Neil McPhie is the Virginia Managing Partner for Tully Rinckey PLLC and the former chairman of the U.S. Merit Systems Protection Board. He concentrates his practice in federal sector employment and labor law and can be reached at info@fedattorney.com.

Non-critical, Sensitive Position Debate Spills over to Congress, Supreme Court

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Neil McPhie is the Virginia Managing Partner for Tully Rinckey PLLC.

Last month marked the four-year anniversary of my departure from the U.S. Merit Systems Protection Board (MSPB), which I chaired from December 2003 to November 2009. My tenure on the Board, which began with my appointment from President George W. Bush, remains a high point in my legal career. Without question, my path to the chairman’s seat of this independent quasi-judicial agency was anything but traditional. I grew up in a simple household in Trinidad and Tobago. Before coming to America to pursue a career in law, I was actually a newspaper reporter in Port of Spain.

Although I am no longer chairman, I remain close to the MSPB. Only now, instead of hearing petitions for review, I am representing federal employees before the Board as the Virginia Managing Partner of Tully Rinckey PLLC, one of the nation’s largest federal employment law firms. Starting with my first job in the legal profession as an Equal Employment Opportunity Commission (EEOC) trial and appellate attorney in 1976, I have always been keenly interested in the protection of government employees’ rights. Much of my three-plus decades of public service were dedicated to this end.

For my first column, I’d like to focus on a debate I thought I had resolved during my last year as chairman. This debate revolves around the question of whether the Board can review cases where national security concerns prompt an agency to remove an employee from a non-critical, sensitive position. In August 2012, a panel of the U.S. Court of Appeals for the Federal Circuit in Berry v. Conyers ruled that the U.S. Supreme Court’s decision in Department of the Navy v. Egan (1988) barred the MSPB from overruling agency eligibility determinations for sensitive positions, irrespective of whether they require access to classified information. The panel reversed and remanded two separated MSPB decisions.

The Federal Circuit’s decision in Conyers has been widely blasted as making employees in non-critical, sensitive positions susceptible to whistleblower retaliation and discrimination. Essentially, the decision allows agencies to place the removal of employees in non-critical, sensitive positions outside the reach of the MSPB by citing national security concerns as the basis for ineligibility determinations. The legal basis for this unfortunate outcome is something I have long recognized – and it is an opinion that other Board members, past and present, have not shared.

Conyers addressed a question similar to the one I answered in Brown v Department of Defense (2009), which involved the removal of an employee in a non-critical sensitive position. I advocated for adherence to the precedent set by Egan, in which the Supreme Court said it was not reasonable for an outside, non-expert body to review an agency’s security clearance determination. “The absence of an alternative standard that would satisfy Egan further demonstrates the Board review of the agency’s determination in this case would be incompatible with that controlling the Supreme Court precedent,” I said in a separate decision. The Federal Circuit took a similar position in Conyers. Highlighting how contentious this issue has been, the vice chairman of the Board at the time disagreed with me in Brown, resulting in a split-vote decision. The vice chairman’s disagreement, however, was short-lived. A few months after Brown, she changed her view in Crumpler v. Department of Defense (2009)

When an administrative judge in 2010 decided on Conyers, she actually referenced the disagreement in Brown. On appeal, the Board found the agency’s designation of the position as non-critical, sensitive was “insufficient to limit the Board’s scope of review to that set forth in Egan.” So began the Conyers litigation saga.

Last January, the Federal Circuit vacated the panel’s August 2012 decision and it granted a rehearing en banc for the two cases. Then last August, a majority of the court dismissed one of the two merged cases because the appellant had no “cognizable interest in the outcome of this case.” The court, however, reversed and remanded the Board’s decision in the remaining case.

The legal fight may not end there. On Nov. 15, the American Federation of Government Employees (AFGE) filed a petition for writ of certiorari with the U.S. Supreme Court for the case of Devon Haughton Northover, which was the case from Conyers that the Federal Circuit had reversed and remanded. A few days later, AFGE’s general counsel David A. Borer, said in a Senate Homeland Security and Governmental Affairs subcommittee that “AFGE will continue to press this issue both in court, in what is now the Northover case, and before Congress. Conyers should not be allowed to stand,” according to his written testimony.

I believe closure to this issue is needed. Should the Federal Circuit’s decision become finalized, the burden would then fall on Congress for establishing the “alternative standard that would satisfy Egan” that I four years ago noted was lacking in my separate decision for Brown.

Neil McPhie is the Virginia Managing Partner for Tully Rinckey PLLC and the former chairman of the U.S. Merit Systems Protection Board. He concentrates his practice in federal sector employment and labor law and can be reached at info@fedattorney.com.