A Collection of Odds and Ends

By William Wiley

Every now and then a case comes along that contains a bunch of good learning points, but does not actually cut much new grass on the lawn of federal employment law jurisprudence. Here are some things we learn and are reminded of in the judge’s decision in Carter v. DoI, AT-1221-13-2153-W-1 (December 3, 2014):

• A Letter of Counseling is a “personnel action” and can be the basis for a claim of whistleblower reprisal IF AND ONLY IF it contains a threat of future discipline. No threat of future discipline, no personnel action, and therefore no viable whistleblower reprisal claim.
  • Of course, if you issue a Letter of Counseling without a threat of future discipline, even though there is no viable claim of reprisal, that does not stop an angry employee from forcing you to defend yourself all the way through discovery, a hearing before an administrative judge, and an appeal to the three Board members. SO DON’T USE THEM! THEY ARE WORTHLESS AND HAVE TO BE DEFENDED!
• Ordering an employee to direct all complaints through the chain of command is a form of whistleblower reprisal and the agency is automatically liable. Therefore, to avoid a reprisal finding, IT’S ok TO order the employee to use the chain of command, but specifically tell the employee that he is still free to take any concerns he has regarding wrongdoing to the Office of Special Counsel, the Office of Inspector General, the EEO office, Congress, or to any law enforcement organization.
• An inappropriate touching by a coworker is not a “personal action” for the purpose of claiming whistleblower reprisal. However, a reprisal claim can be made regarding an agency’s failure to discipline the whistleblower toucher.
• If a supervisor has shown a lack of candor (e.g., fails to tell the truth) during an OIG investigation, a judge is likely to disbelieve any future statement that the supervisor makes in a related appeal before the Board.
• Arguing to a judge that a putative whistleblower could not have had a good-faith belief in the facts underlying her disclosure will cause the judge to say nasty things about you if the agency’s own IG found those facts to be true (see article above).
• Knowing that an employee is giving statements to an IG investigator suffices to establish that the supervisor had knowledge that the employee is a whistleblower even if the employee never says to the supervisor, “Hey, boss; I’m a gosh-darned whistleblower.”
• If a supervisor gives a whistleblower a lower performance rating than the employee received the previous year before the whistleblowing, the supervisor will have to give a good reason for the lowered rating or else be found to be a whistleblower repriser.
• If an agency has a five-level performance rating program, and it defines the Fully Acceptable level, but not the Minimal level of performance for an employee, it cannot rate the employee Minimal if the employee is a whistleblower or it will be guilty of whistleblower reprisal.
  • Hint: Go to a Pass-Fail system and you will have one less problem with claims of discrimination and reprisal. Unless, of course, you can articulate a reason why you think five levels is better. Hint: You cannot.
• If a critical element has several subparts, the agency should state how an overall element rating is derived based on the independent evaluation of each of the parts. For example, after the several components of the element are listed, the performance plan should say something like, “A rating of Minimal on any two or more of the subparts of this element warrants an overall rating on this element of no better that Minimal.”
• The supervisor’s testimony at hearing as to the appellant’s performance should be consistent with, and certainly no lower than, the appellant’s most recent official performance evaluation.
• If on several occasions you grant a whistleblower administrative leave for something, and then you decide to stop, you’d better have a darned good reason (otherwise known as proof at the clear and convincing level).

The facts in this case are not nearly as interesting to a practitioner as are the above learning points, but here they are anyway. The appellant was upset because she had been reporting agency violations of regulations to an IG, and in response the agency had been (allegedly) mistreating her. Specifically, she claimed that the agency did the following to her because she is a whistleblower:

1. Oral counseling
2. Written counseling
3. A physical assault
4. Failure to remedy a physical assault
5. Delay in approving her leave share request
6. Denial of administrative leave to seek EAP counseling
7. Lowered performance rating, from Superior to Fully Acceptable
8. Harassment in the form of:
   1. Anti-whistleblowing emails from coworkers
   2. Whistling at her by coworkers
   3. Coworker declining to talk to her

When she took her claims to the Office of Special Counsel, that office dismissed her complaint, finding no basis for her allegations. Then she and her attorney took the case to the Board’s administrative judge. In a 20-page decision, including 17 footnotes, the judge found that two of the ten alleged acts of reprisal occurred. As a remedy, the judge ordered that the agency grant her in the future all the medically necessary administrative leave required to remedy her assault, and provide her all the benefits she should have received if properly given a Superior performance rating.

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