In Kennington v. Merit Systems Protection Board, CAFC No. 2011-3192 (nonprecedential), 12/13/11, the appeals court rejected a fired IRS Supervisory Data Transcriber’s claim that he was retaliated against for whistleblowing.
The court’s opinion recounts what many would view as odd behavior: “Early in his employment, Mr. Kennington attended an introductory meeting with other employees during which he claimed that he had previously worked as a psychic; that he could communicate with angels, God, and Jesus; that he had visions; that he was a very religious person; and that he was not married.” (p. 2)
His bosses then told him not to discuss such topics with other employees. A few months later, Kennington sent emails to the Internal Revenue Service criminal unit naming several companies—including a former employer—that he “believed” were dodging taxes or doing other illegal things. (p. 2) He claims he sent a copy of that email to his supervisor a few weeks later and complained that he was being “harassed and discriminated against in various ways, including by being prohibited from discussing his religious beliefs with other employees.” (p. 2)
The next day Kennington was fired because of “inappropriate behavior and disruptive comments…” citing three specifications.
Kennington turned to the Office of Special Counsel saying that he had been fired because of his emails to the IRS criminal investigations unit. The OSC looked into it, but closed its file because he did not respond to its requests for more information. Kennington then turned to the Merit Systems Protection Board with what is called an “Individual right of appeal” (IRA) contending violations of the Whistleblower Protection Act. (pp. 2-3)
The MSPB found it had no jurisdiction and the appeals court now agrees. Kennington apparently tripped up by not pursuing his claims with the OSC. Further, his so-called whistleblowing involved private entities and not any governmental bodies and thus were not covered by the WPA. The court also turned aside Kennington’s claims concerning agency violations of his constitutional protections of speech and religion since these claims to not fall within IRA appeals.
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