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When is a Whistleblower Protected?

By Susan Smith

Monday, May 8, 2006

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Susan McGuire Smith spent most of her 26-year federal government career with NASA, first at NASA Headquarters Office of General Counsel and then at Marshall Space Flight Center, serving as Chief Counsel there for more than 14 years. Her expertise is in government contracts, ethics, and personnel law. Ms. Smith has a J.D and a B.A. degree from the George Washington University. Her publications include Practical Ethics for the Federal Employee.
When is a whistleblower a whistleblower for purposes of proving agency retaliation in a subsequent adverse action? That is the key question in many of these cases.

In a recent case decided in favor of the Merit Systems Protection Board and the agency by the Federal Circuit Court of Appeals, an employee who blew the whistle some two years prior to getting into trouble for AWOL was not the victim of retaliation. (Ray v. Department of Defense, U.S.C.A.F.C. No. 05-3298 (non-precedent), 5/3/06)

Mr. Ray was a meat cutter in a wage grade position at the McClellan Air Force Base Commissary. He was absent without approved leave for a little more than 6 months, leading the agency to fire him. In addition to AWOL he was charged with failure to follow required procedures for leave approval and failure to provide the agency with requested medical documentation. (Ray v. Dep’t of Defense, No. SF-1221-04-0105-W-2, (M.S.P.B. 9/2/04))

Mr. Ray complained to the Office of Special Counsel that the firing was actually retaliation for protected whistleblowing. (Some two years previously he had informed the commissary director that the commissary was overcharging for meats.)

The MSPB’s Administrative Judge found that Ray had made a protected disclosure. However, the AJ further concluded that Ray had failed to show that the protected disclosure contributed to his firing. As it turns out the commissary director testified that he had not disclosed Ray’s allegations to anyone. And, the deciding official on Ray’s removal testified that he did not know about Ray’s disclosures and therefore did not know he was a whistleblower.

Given these facts and the long length of time that had passed since the whistleblowing activity, the AJ found there was not retaliation. (Opinion, p. 2)

Apparently not persuaded by Ray’s “conclusory assertion that [the witnesses’ testimony] were ‘lies,’” the court affirmed the Board’s decision. (Opinion, p. 3) Since Ray failed to prove that the whistleblowing activity factored into his firing, the court affirmed the Board and therefore the agency’s removal decision. (Opinion, p. 3)

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Readers' Comments

  • Surely, an agency would not have allowed an employee to be off work for six months without knowing the reason why. Surely, he must have told someone that he was sick. No rational employee would just leave work and go off for sick without telling someone, surely! Somebody must have known something...
    Posted: May 11, 2006 2:29 PM
  • The MSPB habitually gives testimony from agency officials more credibility and weight than it deserves. Other factors, such as the time nexus between disclosure and reprisal should have been addressed in the decision, but apparently were not. America is less safe for the lack of real whistleblowe...
    Posted: May 8, 2006 11:15 PM

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