Unprotected Whistleblowing Will Not Undo Removal of Federal Employee

A Department of Education employee removed for various misconduct reasons tried to thwart the agency’s action by pointing to his whistleblowing activity. Since he could not prove it was protected whistleblowing and the agency could prove it would fire him even if it had been, he lost out on his appeal.

Here is yet another federal appeals court decision that agrees with the Merit Systems Protection Board (MSPB) that a federal employee had not met his burden to prove that the agency fired him in retaliation for protected whistleblowing. (McInnis v Department of Education (CAFC No. 2016-2652 (nonprecedential) 2/8/17))

As the court’s decision explains, Mr. Gregory McInnis was an Institutional Review Specialist with the Department of Education’s (DEd) Federal Student Aid Office. Following several progressive disciplinary actions based on failure to follow various instructions, work procedures, etc., the agency eventually fired McInnis for: (1) absence without approved leave (AWOL), 2) failure to follow leave procedures, and (3) failure to follow instructions. The agency cited numerous instances in a nine month period when McInnis either did not come to work on time, left early or did not come to work at all without advance approval and without following required leave procedures. He also failed to complete timely required security training and mishandled a security breach incident. (Opinion pp. 2-3)

At the MSPB McInnis argued there was no basis for his removal; moreover his removal was in retaliation for protected whistleblowing. The so-called whistleblowing involved two things. First, McInnis claims he disclosed to various agency officials that there was a problem with a particular agency contract performance that was encountering delays. Second, he said had complained about how his supervisor treated women. (p. 3)

Following a hearing, the Administrative Judge upheld McInnis’ removal, finding that the agency had proved its charges, sustaining 44 of the 47 specifications of AWOL, 57 of the 61 specifications of failure to follow leave procedures, and both failure to follow supervisory instructions specifications. The AJ found that McInnis did not make any protected whistleblower disclosures, and, even if he had, there was no evidence these factored into the agency’s decision to fire him. Further, the agency proved by clear and convincing evidence that it would have removed McInnis regardless of such whistleblowing disclosures. In fact the AJ found no evidence McInnis had made any disclosures about his supervisor’s treatment of women. (pp. 3-4)

McInnis took his case to the federal appeals court, which has now ruled in favor of MSPB’s decision.

Specifically as to McInnis’ protected whistleblowing argument, the court rejected that challenge because he failed to prove it. The burden is for McInnis to “establish, by a preponderance of the evidence, that the agency removed him in reprisal for protected whistleblowing activity….[He] was required to demonstrate that a protected disclosure was a ‘contributing factor’ ….to remove him.” (p. 7) Pointing out the so-called whistleblowing had occurred some four years prior to his removal, and that the agency proved it had no bearing on its decision to remove McInnis by clear and convincing evidence, the court rejected the contention. (pp. 7-8)

McInnis v. Department of Education (2016-2652)

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.