PROHIBITED PERSONNEL PRACTICES RIGHTS AND REMEDIES OF FEDERAL EMPLOYEES UNDER 5 U.S.C., CHAPTERS 12 & 23 Anthony T. Cardillo Chief, Dallas Field Office U.S. OFFICE OF SPECIAL COUNSEL 1

2 TOPICS 5 U.S.C. CHPTRS. 12, 23, 73 U.S. OFFICE OF SPECIAL COUNSEL (OSC) ● PROHIBITED PERSONNEL PRACTICES ● CORRECTIVE AND DISCIPLINARY ACTION

3 AUTHORIZED TO — l INVESTIGATE PROHIBITED PERSONNEL PRACTICES AND OTHER ACTIVITIES PROHIBITED BY CIVIL SERVICE LAW, RULE, OR REGULATION l SEEK CORRECTIVE ACTION ON BEHALF OF INDIVIDUALS WHO ARE THE VICTIMS OF PROHIBITED PERSONNEL PRACTICES l SEEK DISCIPLINARY ACTION AGAINST AGENCY OFFICIALS WHO COMMIT PROHIBITED PERSONNEL PRACTICES OFFICE OF SPECIAL COUNSEL (OSC) 5 U.S.C. §§ ; 5 C.F.R. PART 1800

4 RESPONSIBILITIES OF AGENCY OFFICIALS 5 U.S.C. § 2302(c) AGENCY HEADS, AND OFFICIALS WITH DELEGATED PERSONNEL MANAGEMENT AUTHORITY, ARE RESPONSIBLE FOR — l PREVENTING PROHIBITED PERSONNEL PRACTICES l COMPLYING WITH AND ENFORCING CIVIL SERVICE LAWS, RULES, AND REGULATIONS l ENSURING THAT EMPLOYEES ARE INFORMED OF THEIR RIGHTS AND REMEDIES (IN CONSULTATION WITH OSC)

5 OSC ORGANIZATION SPECIAL COUNSEL William Reukauf DEPUTY SPECIAL COUNSEL COMPLAINTS EXAMINING UNIT AUDRE FIELDS- WILLIAMS INVESTIGATION AND PROSECUTION DIVISION DISCLOSURE UNIT CATHERINE McMullen HATCH ACT UNIT ANA GALINDO- MARRONE CONGRESSIONAL AND PUBLIC AFFAIRS Darshan Seth LEGAL COUNSEL AND POLICY DIVISION ERIN McDonnell MANAGEMENT AND BUDGET DIVISION Karl Kammann HUMAN RESOURCES MANAGEMENT BRANCH ROBERT WISE INFORMATION TECHNOLOGY BRANCH WING LEUNG BUDGET AND PROCUREMENT BRANCH DOUGLAS STICKLER DOCUMENT CONTROL BRANCH MIRIAM (T.J.) WEISS OUTREACH Shirine Moazed WASHINGTON FIELD OFFICE SHIRINE MOAZED DALLAS FIELD OFFICE ANTHONY CARDILLO S.F. BAY AREA FIELD OFFICE Bruce Fong MIDWEST FIELD OFFICE CHRISTOPHER TALL TRAINING OFFICE Caroline Heard

6 KEY CONCEPTS ● MERIT SYSTEM PRINCIPLES THE FRAMEWORK AND FOUNDATION FOR MAKING ALL PERSONNEL DECISIONS IN THE CIVIL SERVICE ● PROHIBITED PERSONNEL PRACTICES ADMONITIONS AGAINST SPECIFIC PRACTICES THAT CONFLICT WITH MERIT SYSTEMS PRINCIPLES

7 PROHIBITED PERSONNEL PRACTICES: OVERVIEW 12 PROHIBITED PERSONNEL PRACTICES — FALL UNDER ONE OF FOUR GENERAL CATEGORIES: ● DISCRIMINATION ● HIRING PRACTICES THAT OFFEND MERIT SYSTEM ● RETALIATION FOR ENGAGING IN PROTECTED ACTIVITY (INCLUDING WHISTLEBLOWING) ● THE CATCH-ALL: VIOLATION OF LAWS, RULES OR REGULATIONS THAT IMPLEMENT MERIT SYSTEMS PRINCIPLES (INCLUDING VIOLATIONS OF CONSTITUTIONAL RIGHTS)

8 DISCRIMINATION PROHIBITED PERSONNEL PRACTICE TO DISCRIMINATE AGAINST AN EMPLOYEE: ● BASED ON RACE, COLOR, NATIONALITY, RELIGION, GENDER, HANDICAPPING CONDITION, AGE, MARITAL STATUS, OR POLITICAL AFFILIATION ● BASED ON “CONDUCT WHICH DOES NOT ADVERSELY AFFECT THE PERFORMANCE OF THE EMPLOYEE OR APPLICANT, OR THE PERFORMANCE OF OTHERS” 5 U.S.C. §§ 2302(b)(1) and (b)(10)

PROHIBITED PERSONNEL PRACTICES 5 U.S.C. § 2302(b)(1) (OSC DEFERRAL POLICY) 5 C.F.R. § l ALTHOUGH THEY ARE INCLUDED AMONG THE PROHIBITED PERSONNEL PRACTICES, OSC DEFERS THE FOLLOWING ALLEGATIONS OF DISCRIMINATION TO AGENCY AND EEOC DISCRIMINATION COMPLAINT PROCESSES: w RACE w COLOR w RELIGION w SEX w NATIONAL ORIGIN w AGE w HANDICAP

PROHIBITED PERSONNEL PRACTICES 5 U.S.C. § 2302(b)(1) DISCRIMINATING FOR OR AGANST ANY EMPLOYEE OR APPLICANT ON A PROHIBITED BASIS (INCLUDING ON THE BASIS OF MARITAL STATUS OR POLITICAL AFFILIATION) EXAMPLE: SUPERVISOR JOE DECLINES TO RENEW EMPLOYEE JANE’S TEMPORARY APPOINTMENT BECAUSE HE DOES NOT APPROVE OF HER MEMBERSHIP IN THE SOCIALIST WORKERS PARTY

PROHIBITED PERSONNEL PRACTICES 5 U.S.C. § 2302(b)(10) DISCRIMINATION BASED ON CONDUCT NOT ADVERSE TO JOB PERFORMANCE EXAMPLE: Jack's employment is terminated because he attended a "Gay Pride" march; or he attended a "Pro-Life" event; or he attended an animal rights rally; or he attended a gun- owners' rights meeting. 11

12 POLITICAL ACTIVITY PROHIBITED PERSONNEL PRACTICE TO: COERCE THE POLITICAL ACTIVITY OF ANY PERSON (INCLUDING PROVIDING OF ANY POLITICAL CONTRIBUTION OR SERVICE) TAKE ANY ACTION AGAINST AN EMPLOYEE OR APPLICANT FOR EMPLOYMENT AS A REPRISAL FOR THE REFUSAL OF ANY PERSON TO ENGAGE IN SUCH POLITICAL ACTIVITY 5 U.S.C. § 2302(b)(3)

PROHIBITED PERSONNEL PRACTICES 5 U.S.C. § 2302(b)(3) COERCING POLITICAL ACTIVITY, OR TAKING REPRISAL FOR REFUSAL TO ENGAGE IN POLITICAL ACTIVITY EXAMPLE: SUPERVISOR JANE THREATENS TO TAKES AWAY SIGNIFICANT JOB DUTIES FROM EMPLOYEE JACK IF HE DOES NOT AGREE TO ATTEND A POLITICAL RALLY BEING ORGANIZED BY THE HEAD OF THE AGENCY 13

14 ● OBSTRUCTING THE RIGHT TO COMPETE ● INFLUENCING WITHDRAWAL FROM COMPETITION ● UNAUTHORIZED PREFERENCES ● NEPOTISM ● CONSIDERING IMPROPER JOB REFERENCES ● KNOWINGLY VIOLATING VETERANS’ PREFERENCE 5 U.S.C. §§ 2302(b)(2); (b)(4); (b)(5); (b)(6);(b)(7); (b)(11) HIRING OFFENSES

PROHIBITED PERSONNEL PRACTICES 5 U.S.C. § 2302(b)(2) SOLICITING OR CONSIDERING IMPROPER EMPLOYMENT RECOMMENDATIONS OR STATEMENTS (Recommendations or statements that are not based upon job qualifications, character, performance or other relevant matters). EXAMPLE: SELECTING OFFICIAL JOE HIRES APPLICANT JACK BASED ON THE RECOMMENDATION OF SENATOR SMITH, WHO DOES NOT KNOW ANYTHING ABOUT EMPLOYEE JACK’S QUALIFICATIONS 15

16 MOST COMMON VIOLATIONS: ● DECEIVING OR WILFULLY OBSTRUCTING RIGHT TO COMPETE FOR EMPLOYMENT — 5 U.S.C. § 2302(b)(4) ● INFLUENCING WITHDRAWAL FROM COMPETITION IN ORDER TO IMPROVE OR INJURE EMPLOYMENT PROSPECTS OF ANOTHER — 5 U.S.C. § 2302(b)(5) ● GIVING AN UNAUTHORIZED PREFERENCE OR ADVANTAGE TO IMPROVE OR INJURE THE PROSPECTS OF ANY PARTICULAR PERSON FOR EMPLOYMENT — 5 U.S.C. § 2302(b)(6) HIRING OFFENSES

17 EXAMPLES OF HIRING OFFENSES ● MANAGER DELIBERATELY FAILS TO HAVE VACANCY ANNOUNCEMENT POSTED, TO PREVENT A PARTICULAR CANDIDATE FROM APPLYING FOR A VACANCY ● MANAGER DELIBERATELY MISCATEGORIZES THE POSITION’S REQUIREMENTS IN A JOB INTERVIEW (SPECIAL COUNSEL V. BROWN AND NELSON) ● APPLICATION RECEIVED IS DELIBERATELY MISPLACED OR DESTROYED ● SUPERVISOR GIVES AN EMPLOYEE A DISHONEST RECOMMENDATION OR APPRAISAL TO KEEP VALUABLE EMPLOYEE OR TO HELP ANOTHER CANDIDATE

18 ● SUPERVISOR ENCOURAGES A SUBORDINATE NOT TO COMPETE, OR TO WITHDRAW HIS OR HER APPLICATION, BY MAKING PROMISES OF FUTURE BENEFITS THAT SUPERVISOR DOES NOT INTEND TO KEEP ● CLOSED VACANCY ANNOUNCEMENT IS RE-OPENED TO PERMIT A FAVORED CANDIDATE TO APPLY ● POSITION IS REANNOUNCED AT A LOWER GRADE LEVEL SO THAT A FAVORED CANDIDATE CAN QUALIFY AND BE SELECTED (SPECIAL COUNSEL V. BEATREZ AND LEE) EXAMPLES OF HIRING OFFENSES

19 ● JOB QUALIFICATIONS ARE MANIPULATED TO FAVOR A PARTICULAR APPLICANT (Special Counsel v. Brown and Nelson) ● A SUPERVISOR ADVISES A QUALIFIED EMPLOYEE NOT TO APPLY FOR A JOB IN ORDER TO IMPROVE ANOTHER EMPLOYEE’S CHANCES TO BE SELECTED EXAMPLES OF HIRING OFFENSES

PROHIBITED PERSONNEL PRACTICES 5 U.S.C. § 2302(b)(7) ENGAGING IN NEPOTISM (AGENCY OFFICIAL APPOINTS, PROMOTES, OR ADVOCATES THE APPOINTMENT OR PROMOTION OF A RELATIVE WITHIN THE SAME AGENCY) EXAMPLE: SECOND-LEVEL SUPERVISOR JANE RECOMMENDS THAT FIRST-LEVEL SUPERVISOR JOE HIRE HER FIRST COUSIN, MARY, WHO HAS APPLIED FOR A VACANCY 20

PROHIBITED PERSONNEL PRACTICES 5 U.S.C. § 2302(b)(11) TAKING OR FAILING TO TAKE, RECOMMEND, OR APPROVE A PERSONNEL ACTION IN VIOLATION OF A VETERANS’ PREFERENCE REQUIREMENT EXAMPLE: SUPERVISOR JANE HIRED EMPLOYEE JACK WITHOUT CONSIDERING VETERAN JENNIFER, WHO WAS INCLUDED ON THE LIST OF ELIGIBLE EMPLOYEES 21

22 COMMON MISCONCEPTION: IT IS NOT A PROHIBITED PERSONNEL PRACTICE TO ACT UPON ONE’S EXISTING EXPECTATION THAT ONE PERSON MAY BE THE BEST SELECTEE FOR A PARTICULAR POSITION (“ PRESELECTION ”). TO VIOLATE THE LAW THERE MUST BE — THE GRANT OF SOME ILLEGAL ADVANTAGE AN INTENTIONAL AND PURPOSEFUL MANIPULATION OF THE SYSTEM TO INSURE THAT ONE PERSON IS FAVORED AND ANOTHER PERSON IS DISADVANTAGED HIRING OFFENSES

23 CAVEATS: WHILE HIRING OFFENSES USUALLY REQUIRE INTENT TO DECEIVE OR MANIPULATE THE SYSTEM, IF A LAW, RULE, OR REGULATION IMPLEMENTING A MERIT SYSTEM PRINCIPLE IS VIOLATED IN THE PROCESS, THAT WOULD ALSO BE A PROHIBITED PERSONNEL PRACTICE. NEGLIGENCE OR IMPRUDENT ACTIONS CAN CREATE THE APPEARANCE OF A HIRING OFFENSE AND RESULT IN COMPLAINTS AND INVESTIGATIONS — E.G., BROADCASTING ONE’S CHOICE BEFORE COMPETITION IS HELD. HIRING OFFENSES

24 CATCH ALL PROHIBITED PERSONNEL PRACTICE TAKING OR FAILING TO TAKE PERSONNEL ACTION, IN VIOLATION OF A LAW, RULE, OR REGULATION THAT IMPLEMENTS OR DIRECTLY CONCERNS A MERIT SYSTEM PRINCIPLE 5 U.S.C. § 2302(b)(12)

25 MERIT SYSTEM PRINCIPLES 5 U.S.C. § 2301(b) 1.RECRUIT, SELECT, AND ADVANCE ON THE BASIS OF MERIT AFTER FAIR AND OPEN COMPETITION 2.TREAT EMPLOYEES AND APPLICANTS FAIRLY AND EQUITABLY 3.PROVIDE EQUAL PAY FOR EQUAL WORK AND REWARD EXCELLENT PERFORMANCE 4.MAINTAIN HIGH STANDARDS OF INTEGRITY, CONDUCT, AND CONCERN FOR THE PUBLIC INTEREST

26 5.MANAGE EMPLOYEES EFFECTIVELY AND EFFICIENTLY 6.RETAIN OR SEPARATE EMPLOYEES ON THE BASIS OF THEIR PERFORMANCE 7.PROVIDE EMPLOYEES WITH EFFECTIVE TRAINING AND EDUCATION 8.PROTECT EMPLOYEES FROM IMPROPER POLITICAL INFLUENCE 9.PROTECT EMPLOYEES FROM REPRISAL FOR LAWFUL DISCLOSURES MERIT SYSTEM PRINCIPLES 5 U.S.C. § 2301(b)

(b)(12) EXAMPLE Forest Service Example: Special Counsel v. Lynn and Chiarella (November 1985) Forest Service, Petersburg, Alaska District Ranger and his supervisor removed a temporary employee (Istvan Toth) for writing a letter to the editor of a local newspaper criticizing certain personnel practices by the Forest Service. Dual prosecution policy: Subjects already suspended for 30 and 14 days respectively. 5 U.S.C. 1214(f) waivers SPECIAL COUNSEL V. BROWN AND NELSON (another example) 27

28 l Appointment, promotion, action under chapter 75 of title 5 or other disciplinary or corrective action l Detail, transfer, reassignment, reinstatement, restoration, reemployment, or performance evaluation under chapter 43 l Decision concerning pay, benefits or awards l Education or training if reasonably expected to lead to a personnel action as described above WHAT IS A PERSONNEL ACTION? 5 U.S.C. § 2302(b)(2)(A)

29 l Decision to order psychiatric testing or examination l Any other significant change in duties, responsibilities or working conditions FAILURE TO RENEW A TEMPORARY APPOINTMENT IS A PERSONNEL ACTION (KERN V. USDA, 48 M.S.P.R. 137, 140 (1991) –APPELLANT WAS A GS-5 FOREST SERVICE HYDROLOGIC TECHNICIAN [OSC INTERVENED] WHAT IS A PERSONNEL ACTION? (cont.) 5 U.S.C. § 2302(b)(2)(A)

30 RETALIATION 5 U.S.C. §§ 2302(b)(8); (b)(9) TAKING, FAILING TO TAKE, OR THREATENING TO TAKE OR FAIL TO TAKE PERSONNEL ACTION FOR ― ● PROTECTED WHISTLEBLOWING ● EXERCISE OF APPEAL, COMPLAINT, OR GRIEVANCE RIGHTS ● TESTIMONY OR OTHER ASSISTANCE TO PERSON EXERCISING SUCH RIGHTS ● COOPERATION WITH OR DISCLOSURES TO THE SPECIAL COUNSEL OR AN INSPECTOR GENERAL ● REFUSAL TO OBEY AN ORDER THAT WOULD REQUIRE VIOLATION OF LAW

“ Because they serve the public interest by eliminating fraud, waste, and unnecessary government expenditures” Protecting whistleblowers leads to a more effective civil service.” Marren v. Dept. of Justice, 51 M.S.P.R. 632, 636 (1991) citing the Whistleblower Protection Act, Public Law , 103 Stat. 16 (April 10, 1989) WHY PROTECT WHISTLEBLOWERS? 31

PROTECTED DISCLOSURE DISCLOSE MEANS TO— l EXPOSE, MAKE KNOWN, REVEAL [Horton v. Dept. of Navy, 60 M.S.P.R. 397, 402 (1994), affirmed 66 F.3d 279 (Fed. Cir. 1995), citing “Black’s Law Dictionary,” 417 (5 th Ed. 1979) l THUS, CRITICISM DIRECTED TO THE WRONGDOER NOT NORMALLY VIEWED AS WHISTLEBLOWING [Coufal v. Dept. of Justice, 98 M.S.P.R. 31, 39 (2004) citing Huffman v. O.P.M., 263 F.3d 1341, 1350 (Fed. Cir. 2001)]. 32

33 ELEMENTS OF PROOF: REPRISAL FOR WHISTLEBLOWING 5 U.S.C. §§ 1214(b)(4)(A)-(B), 1221(e) MUST SHOW — PROTECTED DISCLOSURE OF INFORMATION UNDER 5 U.S.C. § 2302(b)(8) PERSONNEL ACTION TAKEN NOT TAKEN, OR THREATENED ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE PROTECTED DISCLOSURE PROTECTED DISCLOSURE WAS A CONTRIBUTING FACTOR IN THE PERSONNEL ACTION

34 PROTECTED WHISTLEBLOWER DISCLOSURES 5 U.S.C. §§ 2302(b)(8), 1213 CATEGORIES OF DISCLOSURES A VIOLATION OF ANY LAW, RULE OR REGULATION GROSS MISMANAGEMENT MORE THAN DE MINIMIS GROSS WASTE OF FUNDS MORE THAN A DEBATABLE EXPENDITURE ABUSE OF AUTHORITY SUBSTANTIAL AND SPECIFIC DANGER TO PUBLIC HEALTH AND/OR SAFETY

PROTECTED WHISTLEBLOWER DISCLOSURES 5 U.S.C. § 2302(b)(8) VIOLATION OF LAW, RULE OR REGULATION no De Minimis exception? GROSS MISMANAGEMENT MORE THAN DE MINIMIS WRONGDOING OR NEGLIGENCE — AN ACTION THAT CREATES A RISK OF SIGNIFICANT ADVERSE IMPACT ON THE ACCOMPLISHMENT OF AN AGENCY’S MISSION [Nafus v. Dept. of Army, 57 M.S.P.R. 386, 395 (1993)]. 35

PROTECTED WHISTLEBLOWER DISCLOSURES 5 U.S.C. § 2302(b)(8) GROSS WASTE OF FUNDS MORE THAN A DEBATABLE EXPENDITURE THAT IS SIGNFICANTLY OUT OF PROPRORTION TO THE BENEFIT REASONABLY EXPECTED TO ACCRUE TO THE GOVERNMENT. Nafus at 393. ABUSE OF AUTHORITY AN ARBITRARY OR CAPRICIOUS EXERCISE OF POWER THAT INJURES ANOTHER, OR BENEFITS THE ABUSER OR OTHERS. McCollum v. Dept. of Veterans Affairs, 75 M.S.P.R. 449, (1997) SUBSTANTIAL AND SPECIFIC DANGER TO PUBLIC HEALTH OR SAFETY INCLUDES DANGERS TO SPECIFIC CLASS OF PERSONS AS WELL AS TO THE PUBLIC AT LARGE 36

PROTECTED DISCLOSURE “ DE MINIMIS” STANDARD l Yes, for “gross” waste of funds (more than debatable expenditure that is significantly out of proportion to the benefit reasonably expected to accrue to the gov’t). l Yes, for “gross" mismanagement (more than wrongdoing or negligence: management action or inaction which creates a substantial risk of significant adverse impact upon the agency’s ability to accomplish its mission). 37

PROTECTED DISCLOSURE De Minimis Standard (continued): - No, for abuse of authority disclosures. Wheeler v. Dept. of Veterans Affairs, 88 MSPR 236 (2001) - No, for violation of law, rule or regulation disclosures. Mogyorossy v. Dept. of Air Force, 96 M.S.P.R. 652, 661 (2004) citing Berkely v. Dept. of Army, 72 M.S.P.R. 341, 352, but beware of Special Counsel v. Spears [75 MSPR 639 (1997)], Frederick v. Dept. of Justice, 73 F.3d 349 (Fed. Cir. 1996) and Herman v. Dept. of Justice, 193 F.3d 1375 (Fed. Cir. 1999) 38 -Yes, for disclosures of public health or safety dangers. Herman at 1379.

39 GENERALLY PROTECTED WHEN MADE TO ANY PERSON (EXCEPT THE WRONGDOER) NEED NOT BE ACCURATE TO BE PROTECTED PROTECTED IF EMPLOYEE HAS A REASONABLE BELIEF THAT IT IS TRUE — TEST IS BOTH OBJECTIVE AND SUBJECTIVE PROTECTED WHISTLEBLOWER DISCLOSURES ( cont’d) 5 U.S.C. §§ 2302(b)(8), 1213

40 l NO REQUIREMENT THAT EMPLOYEE GO THROUGH CHAIN OF COMMAND l WHISTLEBLOWER’S PERSONAL MOTIVATION DOES NOT AFFECT REASONABLENESS OF A DISCLOSURE l EMPLOYEE OR APPLICANT IS PROTECTED IF EMPLOYER MISTAKENLY BELIEVES HE OR SHE IS A WHISTLEBLOWER PROTECTED WHISTLEBLOWER DISCLOSURES ( cont’d) 5 U.S.C. §§ 2302(b)(8), 1213

41 l DISCLOSURES MUST BE SPECIFIC AND DETAILED, NOT VAGUE ALLEGATIONS OF WRONGDOING REGARDING BROAD OR IMPRECISE MATTERS, BUT THEY DO NOT HAVE TO BE SO SPECIFIC AS TO ENABLE THE RECIPIENT TO CONDUCT AN INVESTIGATION WITHOUT GOING BACK TO THE DISCLOSER FOR ADDITIONAL INFORMATION (KEEFER VS. USDA, 82 M.S.P.R 687, 693 (1999) PROTECTED WHISTLEBLOWER DISCLOSURES ( cont’d) 5 U.S.C. § 2302(b)(8)

Protected Disclosure Subjective Test – Discloser has to personally believe what he or she is reporting meets one of the categories of the statute: VIOLATION OF ANY LAW, RULE OR REGULATION; GROSS MISMANAGEMENT; A GROSS WASTE OF FUNDS; AN ABUSE OF AUTHORITY; OR A SUBSTANTIAL AND SPECIFIC DANGER TO PUBLIC HEALTH AND SAFETY.

PROTECTED DISCLOSURE OBJECTIVE TEST— GIVEN THE INFORMATION AVAILABLE l COULD A PERSON STANDING IN THE DISCLOSER’S SHOES REASONABLY BELIEVE THAT THE DISCLOSED INFORMATION EVIDENCES ONE OF THE IDENTIFIED CONDITIONS IN THE STATUTE? l NAMELY A VIOLATION OF LAW, RULE OR REGULATION; GROSS MISMANAGEMENT; GROSS WASTE OF FUNDS; ABUSE OF AUTHORITY; OR SUBSTANTIAL DANGER TO PUBLIC HEALTH OR SAFETY 43

PROHIBITED PERSONNEL PRACTICES 5 U.S.C. § 2302(b)(8) TAKING, FAILING TO TAKE, OR THREATENING TO TAKE OR FAIL TO TAKE PERSONNEL ACTION BECAUSE OF WHISTLEBLOWER DISCLOSURES EXAMPLE: SUPERVISOR JOE DIRECTS THE GEOGRAPHIC REASSIGNMENT OF EMPLOYEE JACK BECAUSE JACK REPORTED SAFETY VIOLATIONS TO THE AGENCY’S INSPECTOR GENERAL 44

45 DISCLOSURE NOT PROTECTED (UNLESS MADE TO THE SPECIAL COUNSEL OR INSPECTORS GENERAL), WHERE DISCLOSURE IS — PROHIBITED BY LAW, [Kent v. G.S.A., 56 M.S.P.R. 536 (1993)]. OR l REQUIRED BY EXECUTIVE ORDER TO BE SECRET FOR NATIONAL SECURITY OR FOREIGN AFFAIRS REASONS PROTECTED WHISTLEBLOWER DISCLOSURES ( cont’d) 5 U.S.C. §§ 2302(b)(8), 1213

46 CONTRIBUTING FACTOR ANY FACTOR WHICH ALONE OR IN CONNECTION WITH OTHERS TENDS TO AFFECT IN ANY WAY THE OUTCOME OF THE PERSONNEL ACTION AT ISSUE l CAN BE ESTABLISHED BY KNOWLEDGE / TIMING ALONE l OFTEN ESTABLISHED BY CIRCUMSTANTIAL EVIDENCE

47 CLEAR AND CONVINCING EVIDENCE (AGENCY DEFENSE) AGENCY DEFENDS PERSONNEL ACTION BY SHOWING — BY CLEAR AND CONVINCING EVIDENCE — THAT IT WOULD HAVE TAKEN THE SAME ACTION WITHOUT THE DISCLOSURE. [ Brewer v. Dept. of Interior, 76 M.S.P.R. 363, 370 (1997) citing Caddell v. Dept. of Justice, 66 M.S.P.R. 347, 351 (1995), aff’d, 96 F.3d 1367 (Fed. Cir. 1996)] FACTORS:  STRENGTH OF THE EVIDENCE IN SUPPORT OF THE PERSONNEL ACTION  EXISTENCE AND STRENGTH OF MOTIVE TO RETALIATE  TREATMENT OF SIMILAR EMPLOYEES WHO ARE NOT WHISTLEBLOWERS

PROHIBITED PERSONNEL PRACTICES 5 U.S.C. § 2302(b)(9) (cont’d) EXAMPLE: SUPERVISOR JANE DENIES A CAREER PROMOTION TO EMPLOYEE JACK BECAUSE EMPLOYEE JACK FILED AN ADMINISTRATIVE GRIEVANCE ABOUT HIS PERFORMANCE RATING 48

49 RETALIATION Differences between U.S.C. § 2302(b)(8) and (b)(9) REPRISAL BASED ON DISCLOSURES OF INFORMATION VS. REPRISAL BASESD ON THE EXERCISE OF A RIGHT TO COMPLAIN ● CONTRIBUTING FACTOR VS. SIGNIFICANT FACTOR ● AGENCY DEFENSE BY CLEAR AND CONVINCING EVIDENCE VS. PREPONDERANT EVIDENCE ● FOR (B)(9) REPRISAL THERE MUST BE A GENUINE NEXUS BETWEEN THE ALLEGED RETALIATION AND THE PERSONNEL ACTION (WARREN TEST) ● NO INDIVIDUAL RIGHT OF ACTION APPEAL UNDER (B)(9) ● EVIDENCE OF RETALIATORY MOTIVE REQUIRED UNDER (B)(9): SAME FOR (B)(8) DISCIPLINARY CASE

INDIVIDUAL RIGHT OF ACTION (IRA) APPEALS Provides for de novo proceeding before the Board for all whistleblowers who do not obtain corrective action from the OSC. This extends the scope of Board review to previously non-appealable personnel actions. Must exhaust OSC remedy first: 60 days from date OSC closes case, or 120 days after the date corrective action was first sought. 50

IRAs (continued) Three jurisdictional elements [Lozada v. E.E.O.C., 45 M.S.P.R. 310, (1990)]: (1) appellant must have made a protected disclosure (2) appellant must have been subjected to a covered personnel action (3) appellant must have raised issue before to OSC and exhausted those proceedings. 51

STAYS OF PERSONNEL ACTIONS 5 U.S.C. § 1214(b)(1)(A) l OSC CAN SEEK DELAY OF PERSONNEL ACTION (“STAY”) THROUGH — w NEGOTIATION WITH AGENCY (INFORMAL) w PETITION TO MERIT SYSTEMS PROTECTION BOARD(FORMAL) Y BOARD MEMBER CAN STAY PERSONNEL ACTION (UP TO 45 DAYS) IF ACTION WAS TAKEN, OR IS TO BE TAKEN, AS RESULT OF PROHIBITED PERSONNEL PRACTICE Y BOARD MAY EXTEND STAY (AFTER AGENCY COMMENT ) 52

ELECTION OF REMEDIES: PROHIBITED PERSONNEL PRACTICES 5 U.S.C. § 7121(g)(2) l EMPLOYEES COVERED BY COLLECTIVE BARGAINING AGREEMENTS MUST CHOOSE BETWEEN REMEDIES FOR PROHIBITED PERSONNEL PRACTICES l OPTIONS: w NEGOTIATED GRIEVANCE PROCEDURE w OSC w MERIT SYSTEMS PROTECTION BOARD l NOT APPLICABLE TO ALLEGATIONS OF DISCRIMINATION 53

54 CORRECTIVE ACTION: 5 U.S.C. § 1214 IF OSC FINDS THAT A PROHIBITED PERSONNEL PRACTICE HAS OCCURRED, A LETTER WILL BE SENT TO THE HEAD OF THE AGENCY INVOLVED TO REQUEST CORRECTIVE ACTION EXAMPLE ― IF THE CASE INVOLVES A 30-DAY SUSPENSION, OSC MIGHT REQUEST THAT THE SUSPENSION BE RESCINDED, AND THAT THE EMPLOYEE RECEIVE BACK PAY IN MOST CASES, AGENCIES AGREE TO TAKE THE CORRECTIVE ACTION REQUESTED AND A SETTLEMENT AGREEMENT RESOLVES THE MATTER

55 CORRECTIVE ACTION ( cont’d) 5 U.S.C. § 1214 IF THE AGENCY DOES NOT TAKE THE CORRECTIVE ACTION REQUESTED WITHIN A REASONABLE PERIOD OF TIME, OSC MAY FILE A PETITION FOR CORRECTIVE ACTION WITH THE MERIT SYSTEMS PROTECTION BOARD

56 MAY BE SOUGHT BY OSC FOR — l PROHIBITED PERSONNEL PRACTICES l HATCH ACT VIOLATIONS l OTHER VIOLATIONS OF CIVIL SERVICE LAW, RULE, OR REGULATION DISCIPLINARY ACTION 5 U.S.C. § 1215

57 MAY BE SOUGHT BY OSC FROM — l THE MERIT SYSTEMS PROTECTION BOARD l AGENCY HEADS (FOR UNIFORMED SERVICE MEMBERS AND CONTRACTORS) l THE PRESIDENT (FOR MOST PRESIDENTIAL APPOINTEES) DISCIPLINARY ACTION ( cont’d) 5 U.S.C. § 1215

58 POSSIBLE PENALTIES — l REMOVAL, REDUCTION IN GRADE, SUSPENSION, OR REPRIMAND l DEBARMENT FROM FEDERAL EMPLOYMENT (UP TO FIVE YEARS) l CIVIL PENALTY (UP TO $1,000) DISCIPLINARY ACTION ( cont’d) 5 U.S.C. § 1215

59 DISCIPLINARY ACTION ( cont’d) 5 U.S.C. § 1215 RIGHTS OF CHARGED EMPLOYEE INCLUDE — l OPPORTUNITY TO RESPOND l LEGAL OR OTHER REPRESENTATION l HEARING BEFORE A MERIT SYSTEMS PROTECTION BOARD ADMINISTRATIVE LAW JUDGE l WRITTEN DECISION

60 HOW THE OSC PROCESSES A COMPLAINT COMPLAINTS EXAMINING UNIT (CEU): l REVIEWS ALL INCOMING COMPLAINTS (PROHIBITED PERSONNEL PRACTICE COMPLAINTS MUST BE SUBMITTED ON FORM OSC-11) l MAKES JURISDICTIONAL DETERMINATION l SCREENS TO DETERMINE WHETHER TO — w REFER CASE FOR FULL FIELD INVESTIGATION, OR w CLOSE (REVIEW COMMITTEE) — Y PRELIMINARY DETERMINATION LETTER SENT TO COMPLAINANT Y OPPORTUNITY TO RESPOND

61 HOW THE OSC PROCESSES A COMPLAINT HOW THE OSC PROCESSES A COMPLAINT (cont’d) INVESTIGATION AND PROSECUTION DIVISION (one of four field offices): l CONDUCTS ON-SITE OR OTHER INQUIRIES (e.g. by telephone l INTERVIEWS WITNESSES AND GATHERS DOCUMENTS l WORKS IN TEAMS WITH ATTORNEYS l USES AGENCY LIAISON PROGRAM l CONDUCTS SETTLEMENT NEGOTIATIONS ISSUES REPORTS OF INVESTIGATION

62 OSC PHONE / CONTACTS COMPLAINTS EXAMINING UNIT: (202) (800) DISCLOSURE HOTLINE: (202) (800) HATCH ACT UNIT: (800) 85-HATCH (202) OSC SPEAKERS/ OUTREACH REQUESTS: (202) Shirine Moazed

63 OSC WEB SITE ( )

64 OSC MAIL CONTACTS U.S. OFFICE OF SPECIAL COUNSEL 1730 M STREET, N.W. (SUITE 218) WASHINGTON, DC

QUESTIONS ? 65