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Whistleblowing or Failure to Communicate Properly With Supervisors?

Here’s a situation where a federal employee received a “counseling memo” following what he apparently considered as a whistleblowing complaint to his agency chain of command. He tried to challenge the informal discipline as retaliation for protected whistleblowing and eventually his case went to the federal appeals court.

A recent appeals court decision threw out for lack of jurisdiction a federal employee’s challenge to an informal hand slapping he received from his boss after engaging in what the employee felt was protected whistleblowing activity. (Vocke v Merit Systems Protection Board (CAFC No. 2016-2390 (nonprecedential) 2/17/17))

As the court describes it, here’s what happened.

Robert Vocke, a Physical Scientist with the Department of Commerce’s National Institute of Standards and Technology (NIST), complained in emails to supervisors about what he perceived as improprieties in the performance pay system. He wrote that some managers received higher compensation than warranted by their performance ratings. The only response Vocke received was a “Letter of Counseling” addressing his “demonstrated failure to communicate with your supervisors appropriately and to clarify my expectations for your conduct in the future.” He was cautioned for his “disrespectful, derisive, and unprofessional” tone in these emails, and further instructed to “communicate appropriately” with supervisors and watch his tone, which should be “professional and courteous at all times.” Further, while the hand slapping would not be included in his personnel folder, future incidents of this nature could lead to discipline “up to and including removal.” (pp. 2-3)

Ouch! Obviously not the reaction Mr. Vocke may have anticipated, leading to his complaint to the Office of Special Counsel (OSC) claiming this “Letter of Counseling” amounted to retaliation against Vocke’s lawful whistleblowing disclosures. OSC ended its inquiry into Vocke’s complaint and he took his case to the Merit Systems Protection Board (MSPB).

The Administrative Judge (AJ) found no jurisdiction and dismissed Vocke’s appeal because the Letter of Counseling “did not rise to the level of ‘personnel action;’ “ and his self-described whistleblowing did not involve “illegal or grossly wasteful spending,” and therefore was not protected whistleblowing. (p. 3)

The full MSPB agreed with the AJ, declining to review that decision as requested by Vocke. Specifically a Letter of Counseling was not a personnel action and Vocke’s disclosures were not protected whistleblowing. (pp. 3-4)

Mr. Vocke’s appeal to the Federal Circuit has now been dismissed since he missed the filing deadline.

The moral is that you may think you are a whistleblower, but that does not in fact make you a protected whistleblower within the meaning of the federal law. Oh, and, always file your appeal within the time limits.

Vocke v. MSPB (2016-2390)

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.