Our customer provided more details, including a hypothetical situation in which a subordinate claimed that his male supervisor was “hitting on” female customers.

The problem the supervisor would have in this situation is that he might be dealing with whistleblowing. A whistleblower is an employee who makes a disclosure of managerial misconduct that falls into one of four very specific categories. One of the categories is a supervisor’s “abuse of authority.” An abuse of authority is an arbitrary or capricious exercise of power by a federal official that adversely affects the rights of any person or that results in personal gain or advantage to himself or to preferred other persons. D’Elia v. Treasury, 60 MSPR 226 (1993). There is no de minimis standard or threshold applied to disclosures of abuses of authority.Wheeler v. DVA, 88 MSPR 236 (2001), Ramos v. Treasury, 72 MSPR 235 (1996).

Here are some examples from MSPB case law:

·     Disqualification of candidates for failing to submit college transcripts when not required

·     Playing games on a government computer

·     Falsifying time sheets

·     False statements to an IG investigator

·     Preferential treatment of a co-worker based on an intimate relationship

·     Promotion based on non-merit factors

·     Belittling and swearing at subordinates

Someone who reports to upper management that a supervisor is hitting on a customer has most likely disclosed an abuse of authority within the definition of whistleblowing. We cannot discipline an employee for whistleblowing.

Let’s say the report of the hitting on the customer is false. If that is so, then you can discipline the employee based on a charge of ”Making False Statements.” Employees who lie when making disclosures are NOT whistleblowers. However, be careful. Even if the employee is wrong about the incident, he is still a protected whistleblower if he had a good faith belief in the truth of what he reported. The good-faith test is this: Could a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee reasonably conclude that the actions of the government evidences an abuse of authority?  See LaChance v. White, 174 F.3d 1378 (Fed. Cir. 1999).

We certainly discipline whistleblowers all the time. We just have to be extremely careful not to discipline them for blowing the whistle.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

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