Wednesday, January 7, 2015

Not Just For Whistleblowers

When is a non-whistleblower entitled to protection under the WPA?  When a supervisor perceives the employee to be a whistleblower and takes action against her on that basis, the Whistleblower Protection Enhancement Act (WPEA) extends its protections, even in the absence of a protected disclosure.  Such “perceived as” whistleblower claims are well-established, and the MSPB in 2011 offered a useful discussion of these sorts of claims in King v. Department of the Army, 116 M.S.P.R. 689 (2011).

When agency officials believe that an employee “engaged or intended to engage in whistleblowing activity” and take personnel actions against the employee on that basis, the employee may invoke the protection of the WPA.  Whether an employee announced his intention to report waste, fraud, and abuse  (but never actually did so), or objected about practices to his supervisor who believed, on that basis, that he was likely to make a protected disclosure, or, even, if a supervisor gets it wrong and misidentifies the person who actually blew the whistle, taking action against the wrong guy, WPA protection extends to these “perceived as” whistleblowers.

Analysis of “perceived as” whistleblower claims focuses on the agency official(s) taking the personnel action.  The employee must show that these officials believed that the employee had made, or intended to make, disclosures of wrongdoing protected under the WPA.  While in the typical whistleblower reprisal case the employee must show that she made a protected disclosure, in the “perceived as” cases, the focus is on the supervisor’s belief and not on the employee’s actions.  In the simplest of cases, when the employee discloses prior whistleblowing activity to the supervisor, the MSPB has accepted the employee’s later claim that his supervisor perceived him as a whistleblower.  McCarthy v. International Boundary and Water Comm.: U.S. and Mexico,  116 M.S.P.R. 594, 614 (2011); see also Zimmerman v. Dep’t of Housing and Urban Development, 61 M.S.P.R. 75, 82 (1994) (employee stated a non-frivolous regarded-as whistleblower claim based in part on his being named as a source in newspaper articles).  

However, the supervisor’s belief needs to identify her as the whistleblower.  When an employee is just one among many suspects on a supervisor’s list of possible whistleblowers, that is insufficient to establish a perceived-as claim.  Rumsey v. Dep’t of Justice,  120 M.S.P.R. 259, 267 (2013).  

A similar doctrine can also apply to private sector whistleblowers, although courts usually describe the doctrine as one protecting mistaken identity as a whistleblower. An employer subjected to a law enforcement investigation might mistakenly retaliate against an employee who engaged in no protected activity. That employee is still protected from discrimination on account of the identification, albeit mistaken, as a whistleblower. Reich v. Hoy Shoe, Inc., 32 F.3d 361, 368 (8th Cir. 1994); Brock v. Richardson, 812 F.2d 121, 123-25 (3d Cir. 1987); Evans v. Baby Tenda, 2001 CAA 4 (ALJ Sept. 30, 2002) (Complainant terminated in part on the mistaken belief that she had taken actions that actually had been taken by another employee; ALJ held that: “If an employer is free to fire anyone other than the [employee who actually engaged in the protected activity], then that employer is free to eviscerate the [Act].”).

Also defeating a perceived-as claim is a showing that the employee’s disclosure did not merit the supervisor’s serious concern.  Montgomery v. MSPB, 382 Fed.Appx. 942, 947 (Fed.Cir. 2010) (A supervisor’s conclusion that an employee’s purportedly protected disclosure was “frivolous at best and dishonest at worst” defeated the perceived-as whistleblower claim.)   (citing Special Counsel v. Spears, 75 M.S.P.R. 639, 654–55 (1997) for the proposition that the alleged disclosure must at least be reasonable for the perceived whistleblower doctrine to apply). 

However, current federal sector whistleblowers may want to consider whether this Federal Circuit precedent still applies since the 2012 enactment of the Whistleblower Protection Enhancement Act (WPEA). The April 2012 Senate Report No. 112-155, pp. 4-5, expressed the congressional frustration with the Federal Circuit's failure to recognize that the protection of "any disclosure" means "any disclosure." “It is critical that employees know that the protection for disclosing wrongdoing is extremely broad and will not be narrowed retroactively by future MSPB or court opinions. Without that assurance, whistleblowers will hesitate to come forward.”  Clear enough.
 
Given the right facts, the WPA will protect those who suffer retaliation merely because they are suspected of being whistleblowers.

Written by Mary E. Kuntz

  

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