The Whistleblower Protection Act, however, provides additional protection to whistleblowers by adding the right to file an individual right of action (“IRA”) appeal with the Board. IRA appeals are available for all adverse personnel actions, whether or not the action is directly appealable to the Board. Whistleblowers can seek relief, for example, from retaliatory decisions about promotion, reassignment, a performance evaluation, a decision concerning pay, benefits, or awards, and “any other significant change in duties, responsibility, or working conditions.” Note, however, that “election of remedies” rules sometimes limit whistleblowers to the first remedy they sought. For actions that are directly appealable to the Board (including removals, demotions, suspensions over 14 days, and denials of within-grade increases), employees may elect only one remedy (direct MSPB appeal, OSC complaint, union grievance, or EEO formal complaint).
To obtain relief from the MSPB with respect to a personnel action that is not directly appealable to the Board, a whistleblower must first seek correction action from the Office of Special Counsel (“OSC”). If OSC chooses not to investigate or is unable to obtain full relief, a whistleblower can then appeal to the Board. The Board has the power to issue a decision on an appeal if the whistleblower can nonfrivolously allege that she engaged in protected activity under sections 2302(b)(8) or (b)(9) (i.e., that she did, in fact, blow the whistle), and that her protected activity was a contributing factor in the agency’s decision to take the challenged personnel action. At this threshold level, the whistleblower’s burden of proof—a nonfrivolous allegation—is intentionally light: the whistleblower’s allegations need only be more than conclusory and plausible on their face. But does the agency’s unilateral action to correct some or all of the retaliatory personnel actions identified by the whistleblower to OSC foreclose the whistleblower from appealing to the Board? And can the whistleblower obtain relief for being subjected to a hostile work environment resulting from her whistleblowing activity?
The answer to the first question is no. Specifically, the prospect of an award of damages (e.g., for pain and suffering) and attorneys’ fees precludes dismissal of certain actions as moot. If OSC is able to negotiate some, but not all, relief from the agency, the un-obtained relief can be raised with the Board for corrective action. For example, in the case of a whistleblower whose complaint is that the agency took away a majority of her duties in retaliation for her whistleblowing, if OSC negotiates restoration of the whistleblower’s duties, but the agency is unwilling to pay compensatory damages or attorney’s fees (assuming she is represented), the whistleblower can go to the Board to seek the remaining relief. Notably, however, the agency’s decision to unilaterally correct some or all of the personnel actions (alleged by the whistleblower to be retaliatory) is not an admission of guilt. Thus, prior to the Board awarding damages and fees on these personnel actions, the administrative judge must address the merits of the underlying actions, i.e., whether the whistleblowing activity was a contributing factor in the challenged personnel action.
The prospect of an award of damages and fees also precludes dismissal of a claim of agency delay in taking a personnel action, e.g., the agency’s delay in processing a monetary award (which was ultimately paid to the whistleblower). An agency’s deviation from the “usual manner” or the “normal procedures” for processing, e.g., a year-end monetary performance award may be considered in an IRA appeal by the MSPB. To ultimately prove the agency deviated from its normal processes, however, the whistleblower must demonstrate the alleged delay was unjustified or unexplained, thus resulting in a “significant change in working conditions.” A minor or trivial delay will not be considered “significant.” For example, an agency’s six-day delay in paying a whistleblower a cash award may be too minor to significantly change the whistleblower’s working conditions; a six-month delay, however, may. This determination rests on whether and to what extent the whistleblower has been harmed by the agency’s delay.
The answer to the second question—whether you can bring a hostile work environment claim under the WPA—is a resounding yes. Specifically, the Board has recognized that the creation of a hostile work environment is a personnel action for purposes of an IRA appeal to the Board because, if proven, it would be a “significant change in duties.” A “significant change in duties” is interpreted broadly to include any harassment or discrimination that could have a chilling effect on whistleblowing or otherwise undermine the merit system. For example, a hostile work environment may include: exclusion from team emails and meetings, hostile or disparaging statements from a supervisor, and increased or decreased work assignments. Including a hostile work environment claim—if it is appropriate—may result in significant relief beyond what may be available based on the personnel action at issue.
Thus, if you have blown the whistle and are facing retaliation in your workplace, it is important to understand what relief you are entitled to; including potential damages arising from a hostile work environment.
Written by Aaron Herreras.
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