Proving Retaliation is ‘In Reprisal For’ Blowing the Whistle

The author discusses the steps federal employees must take to prove retaliation by their agencies against them for blowing the whistle.

Federal employees who are required to report agency wrongdoing in their “normal course of duties” are in a precarious situation when they have to fear that retaliation will result from their decision to disclose such wrongdoing.

Section 2302(f)(2) of the Whistleblower Protection Act of 2012 (WPEA) states that an employee must prove that a personnel action was taken “in reprisal for” disclosing agency misconduct, and not simply “because of” such disclosure in order to make a prima facie case of retaliation.

According to an amicus curiae brief filed by the Office of Special Counsel (OSC) in the whistleblower retaliation case of Salazar v. Department of Veteran Affairs (2016), this evidentiary burden is the exception to the rule and only applies to “a very narrow group of federal employees who are expected to regularly report wrongdoing, such as investigators and auditors” and does not apply to other federal employees who only have a “general obligation to report wrongdoing.”

In this case, Anthony Salazar disclosed to his manager that a few agency vehicles were missing and that there were discrepancies in the agency record logs. Salazar’s disclosure prompted a Veteran Affairs’ investigation that discovered poor management was to blame for the agency vehicles being stolen. As a result of this discovery, Salazar’s manager received a letter of reprimand. Shortly thereafter, Salazar’s manager gave Salazar a poor performance review and advocated for his termination. Salazar was subsequently fired. Thereafter, Salazar filed a claim with the MSPB alleging that the VA retaliated against him for blowing the whistle. The MSPB applied Section 2302(f)(2) of the WPEA to this case and ruled that Salazar did not prove his termination was “in reprisal for” his disclosure.

In its brief, the OSC argued that the Merit Systems Protection Board (MSPB) misapplied this evidentiary burden to this case because Salazar, a motor vehicle operator supervisor, only had a “general obligation to report wrongdoing,” and did not have a duty to “regularly report wrongdoing.”

The OSC concluded that even if this evidentiary burden applied in Salazar, the MSPB wrongfully elevated that burden because this “in reprisal for” language was intended to only place a “slightly higher burden” on those federal employees who were “expected to regularly report wrongdoing.”

In its brief the OSC outlined a “contributing-factor-plus” approach for analyzing the evidentiary burden laid out Section 2302(f)(2) of the WPEA.

According to the OSC, in order to meet the “in reprisal for” evidentiary burden, the employee must first demonstrate that he or she “reasonably believes” there is a violation of a “law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” An employee, therefore, does not need to prove the actual existence of wrongdoing, but rather demonstrate that he or she has a reasonable basis for believing that such wrongdoing exists.

This notion is consistent with case law. For example, in the case of Linder v. Department of Justice (2014), the Court ruled that an employee, who claimed he was reassigned in retaliation for disclosing agency misconduct, did not have to prove that the misconduct actually occurred but rather was only required to prove that he had a reasonable basis for believing it occurred.

The next step that the employee must take to meet this evidentiary burden is to “demonstrate that the disclosure is a contributing factor in the alleged personnel action.” According to the OSC, an employee can show this by demonstrating that the personnel action was brought against the employee by an agency official who had knowledge of the employee’s disclosure and that the personnel action “occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action.”

Finally, to meet this “slightly higher burden” contemplated by the language in this section, the employee “must offer additional evidence of retaliatory motive” for the personnel action. According to the OSC, an employee can prove this by use of direct or circumstantial evidence, including, but not limited to showing the disclosure was directed at the official issuing the personnel action and the seriousness of the information disclosed.

If all of these steps are met, a prima facie case of retaliation is established and the burden shifts to the agency to prove by “clear and convincing evidence that it would have taken the personnel action in the absence of such disclosure.”

The decision to blow the whistle and disclose agency misconduct can be a daunting task, especially in light of the possibility of retaliation. It can be even more daunting trying to subsequently prove such retaliation. If you are considering disclosing agency misconduct or have received a personnel action as the result of your disclosure, you should contact an experienced federal employment law attorney immediately to discuss your options.

About the Author

Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing federal government employees and military personnel. To schedule a meeting with one of the firm’s federal employment law attorneys call (202) 787-1900. The information in this column is not intended as legal advice.