MSPB: Constructive Knowledge of Disclosures Can Be Contributing Factor to Retaliation

MSPB: Constructive Knowledge of Disclosures Can Be Contributing Factor to Retaliation Written by FEDmanager on 13 September 2016.

The Merit Systems Protection Board reversed the decision of an administrative judge, finding that actual knowledge of an employee’s protected whistleblowing disclosures is not the only way to show that the employee’s disclosures were a “contributing factor” for a personnel action.

A Federal Protective Service Deputy Regional Director filed an Individual Right of Action (IRA) appeal, alleging that he was not selected for a Director position in retaliation for making several whistleblowing disclosures. The administrative judge issued a decision finding that the employee failed to make a nonfrivolous allegation of jurisdiction because he “had not nonfrivolously alleged that his disclosures were a contributing factor in the agency’s decision not to select him for the Director position.” The employee filed a petition for review to the full Board. On September 1, 2016, the Board granted the employee’s petition and reversed the administrative judge’s decision.

As the Board noted, it has jurisdiction over an IRA appeal based on whistleblower reprisal only if an employee has exhausted all of his administrative remedies before the Office of Special Counsel, and the employee has engaged in whistleblowing activity by making a protected disclosure. That disclosure must be a contributing factor in the agency’s decision to take or fail to take a personnel action.

The Board found that the employee nonfrivolously alleged that he made six protected disclosures within his chain of command, ranging from the appropriateness of suitability determinations made for contract security officers to disclosures regarding allegedly false testimony given to Congress. The administrative judge’s decision found that the employee had failed to nonfrivolously allege that his disclosures were a contributing factor in his nonselection for the Director position due to the employee’s failure to satisfy the knowledge/timing test. The Board observed that the administrative judge’s finding was based on the fact that “members of two panels that reviewed and scored the résumés of applicants for the Director position had no actual knowledge about the [employee’s] disclosures.” The Board acknowledged that the knowledge/timing test, where an employee can show that agency officials who take a personnel action had actual knowledge that the employee had made protected disclosures and take a personnel action within a brief period after gaining knowledge of the disclosures, is one way to nonfrivolously allege that an employee’s disclosure was a contributing factor in the personnel action or inaction. But the Board found that 5 U.S.C. § 1221(e)(1) “makes clear that the knowledge/timing test is not the only way for an [employee] to satisfy the contributing factor standard.”

The Board stated that an employee can show a protected disclosure was a contributing factor in a personnel action by proving that the official taking the action had constructive knowledge of the protected disclosure. Constructive knowledge can be shown by demonstrating that an individual with actual knowledge of the disclosure influenced the official accused of taking the retaliatory action.

The employee claimed that he was interviewed for the position by the Director and Deputy Director, two managers who were the subject of his disclosures, and was told after the interview that the Director “felt as if [the employee] did not have a proper vision to be in the position.” Although the agency claimed that the decision was made by a selection panel, that factual predicate was disputed by the employee, and the employee argued that agency officials conspired in deciding not to select him for the position.

For the above stated reasons, the Board found that the employee met the jurisdictional standard for a nonfrivolous allegation that his whistleblowing disclosures were a contributing factor in the agency’s decision not to select him for the Director position, and remanded the case to the regional MSPB office for further the completion of discovery and a hearing on the merits of the case. http://www.fedmanager.com/columns/case-law-update/2573-mspb-constructive-knowledge-of- disclosures-can-be-contributing-factor-to-retaliation

Read the full case: Bradley v. Department of Homeland Security