The Federal Circuit Court of Appeals has upheld the removal of a Navy employee, but at the same time expressed “substantial doubt” about the “validity” of an agency policy requiring employees to submit emails through the chain of command. (Detrich v. Department of the Navy, C.A.F.C. No. 2007-3100 (nonprecedential), 10/22/07)
Detrich was removed based on eight misconduct charges. The Merit Systems Protection Board sustained 7 of the 8 charges and found that removal was reasonable. The 7 charges sustained involved failure to follow instructions and comply with deadlines in connection with different specific assignments, unauthorized absence, and failure to follow agency policy requiring sending emails through the chain of command. (Opinion pp. 1-2)
The court’s concern centered on the last charge sustained by the Board. The problem was that Detrich’s noncompliant email went to the regional Human Resources Service Center and concerned alleged incidents of abuse by certain of Detrich’s supervisors. The Board concluded that this email violated the written instruction to Detrich that he was to follow the chain of command and address issues with his immediate supervisor. (p. 2)
The court stated, “We have substantial doubt as to the validity of that policy under the Whistleblower Protection Act of 1989 …[WPA]…An agency cannot require that protected disclosures be made only to supervisory personnel.” (p. 2; citations omitted)
The rub is that Detrich’s attorney did not raise a WPA claim. Further, the court concluded that the other sustained charges were such that removal “was not disproportionate….” (p. 3)
While Detrich lost his appeal and this decision is “nonprecedential,” nevertheless agencies may want to pay heed to the court’s concerns about a “chain of command” policy as it relates to whistleblower-type communications.