When is a Whistleblower Protected?

An employee at an Air Force Base contended he was the victim of retalilation after the agency proposed to remove him for not showing up for work. The MSPB and a federal court conclude that his whistleblowing activity was unrelated to his removal from his job.

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)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.