Summary
This Merit Systems Protection Board decision reviews an administrative judge's denial of corrective action in a whistleblower reprisal appeal filed by a federal employee. The Board granted the petition for review, reversing the denial of corrective action regarding a 15-day suspension after finding that the underlying Office of Professional Responsibility investigation was initiated as a pretext for retaliation against the appellant's protected disclosures. The Board reaffirmed its precedent on retaliatory investigations, holding that while legitimate misconduct can still be disciplined, the agency failed to prove by clear and convincing evidence that the investigation and subsequent suspension would have occurred absent the appellant's whistleblowing activity.
Topics
Practice areas
Questions Presented
- Whether the agency proved by clear and convincing evidence that it would have suspended Young for 15 days absent her protected whistleblowing activity.
- Whether the agency's investigation was so closely related to the suspension that it could have been a pretext for gathering evidence to retaliate against Young.
- What standard and factors govern a claim that a report of misconduct or ensuing investigation was retaliatory.
- Whether Young was entitled to corrective action concerning her reassignment.
Holdings
- When an appellant claims that a personnel action resulted from a retaliatory investigation, the Board must first determine whether the investigation was so closely related to the personnel action that it could have been a pretext for gathering retaliatory evidence. If so, the Board evaluates the Carr factors as they relate to the report of misconduct and initiation of the investigation.
- Young established by a preponderance of the evidence that the OPR investigation was so closely related to her 15-day suspension that it could have been a pretext for gathering evidence to retaliate against her.
- The agency failed to prove by clear and convincing evidence that it would have reported Young and initiated the investigation, and therefore imposed the resulting 15-day suspension, absent her protected whistleblowing activity.
- Young was not entitled to corrective action regarding her reassignment because the investigation was not sufficiently related to that decision to have been a retaliatory pretext.
Key quotations
“That the investigation itself is conducted in a fair and impartial manner, or that it uncovers actionable misconduct, does not relieve an agency of its obligation to show by clear and convincing evidence that it would have taken the same personnel action in the absence of the protected disclosure or protected activity.” (¶ 16)
“If the agency fails to show by clear and convincing evidence that it would have reported the alleged misconduct or initiated the investigation in the absence of the appellant’s protected disclosure or protected activity, then the appellant must prevail on her whistleblower reprisal claim and is entitled to corrective action with respect to the resulting personnel action.” (¶ 24)
Factual background
Young was a GS-15 supervisory employee at Customs and Border Protection. After she reported alleged wrongdoing by her first-line supervisor, the supervisor became aware that Young had represented management in an EEO mediation involving a subordinate and reported Young for alleged insubordination and conflict of interest. An agency investigation followed, resulting in sustained charges and a 15-day suspension; Young was also laterally reassigned by a new commander. The supervisor who initiated the investigation was the subject of Young's protected complaints.
Procedural history
Young filed complaints with the Office of Special Counsel and the agency's Office of Inspector General concerning her supervisor's conduct, later participated as the management representative in an EEO mediation, and was suspended for 15 days and reassigned after an investigation initiated by her supervisor. She filed an IRA appeal alleging that the personnel actions and the investigation were retaliatory. After a hearing, the administrative judge found that Young established protected activity and contributing factor but concluded that the agency proved by clear and convincing evidence that it would have taken the same actions absent the protected activity. The Board granted review, reversed as to the suspension, and ordered corrective action, while denying relief regarding the reassignment.
Remand instructions
The agency must cancel Young's 15-day suspension effective January 8, 2018, within 20 days; pay the correct amount of back pay, interest, and other benefits within 60 calendar days; and provide written notice of compliance. The agency must also follow the Board's procedures for calculating and paying back pay and benefits.