MSPB Attorney-Whistleblower Officially Wins IRA Appeal

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By Deborah Hopkins

You may have been following the articles I’ve been writing since late 2014 about the Korb case, which detailed the journey of a 25-year employee at MSPB who filed an Individual Right of Action (IRA) appeal alleging whistleblower reprisal. It presented a unique situation because the MSPB is the agency which, according to its website, is the guardian of merit principles, yet with Korb it reprised against him in direct violation of one of those principles.

Well, big news a few days ago: the initial decision has arrived. Korb v. MSPB, MB-1221-14-0002-W-1 (March 2, 2016). In the first paragraph of decision, the judge writes, “[T]he Appellant made a protected disclosure and engaged in protected activity. While these were not the sole factors in the Agency’s decision to take personnel actions against him, they were nevertheless contributing factors and the Agency did not prove by clear and convincing evidence that it would have taken the same personnel action in the absence of any protected activity or disclosure.”

Before we get into the facts of a case, let’s do a quick review of the whistleblower process for federal employees under the Whistleblower Protection Act (WPA).

FIRST: Agency employee “blows the whistle” and makes a disclosure about a violation he sees. If the violation fits in to one of these four categories below, it is considered a protected disclosure and the agency may not retaliate against the employee for blowing the whistle.

    1. Violation of law, rule, or regulation
    2. Gross mismanagement or gross waste of funds
    3. Substantial and specific danger to public health or safety
    4. Abuse of authority
  • A protected disclosure is generally made to a supervisor, the OIG, law enforcement, the Office of Special Counsel, Congress or the media. (Note: a disclosure to a co-worker is not protected under the WPA.)
  • In general, employees of certain agencies – most within the intelligence community – do not have whistleblower protections.

NEXT: If the agency takes an adverse action or a performance-based action against the employee, it must prove by clear and convincing evidence that it would have taken the same action even absent the whistleblowing. This standard of proof is high and is intended to protect whistleblowers from retaliation by the agency.

Now that we have a crash course on whistleblower reprisal (covered in detail during the Friday of MSPB Law Week, next held in San Francisco June 13-17), let’s do a quick review of what exactly Korb, a GS-14 Attorney-Advisor at MSPB, did:

  • Made a protected disclosure when he submitted a document containing evidence of significant delays in the processing of MSPB appeals. There was no valid reason for the delays and MSPB had no internal tracking system to ensure the appeals were moved in a timely manner. Korb independently gathered information to track the cases that had been sitting in the office, and provided the information to his supervisors in the Office of Appeals Counsel (OAC). This information was not well-known outside of his office so the judge determined that Korb’s disclosure was more than just a policy disagreement, so it was protected as whistleblowing activity (under the category of gross mismanagement).
  • Korb also engaged in protected activity when he assisted a co-worker in filing a grievance.

Here’s what MSPB did to Korb in response:

  • Charged him with misconduct for altering boilerplate language in a case writing template, and proposed a 21-day suspension for the alleged misconduct.
  • Reassigned one of Korb’s significant job duties (writing the MSPB Case Report) to another office.
  • Did not select Korb for a promotion.

In the decision, the judge found that the disclosures Korb made to his OAC supervisors and the MSPB Chairman about the delay in case processing times reflected poorly on higher management at MSPB found that MSPB leadership was motivated to take a personnel action because Korb had engaged in protected activity, and that they would not have done so had the appellant not engaged in that protected activity. The agency did show by clear and convincing evidence that it would not have selected Korb for the promotion, so on that allegation MSPB prevailed.

The damages issue has not been decided and there will be a hearing on that issue, but a few corrective actions have been ordered and acted upon:

  • The duty of writing the MSPB Case Reports has been returned to Korb, and his performance standards have been adjusted to reflect what they would have been prior to the reassignment of that duty to another department
  • The Notice of Proposed Suspension has been removed from Korb’s OPF

Interestingly enough, this case is non-precedential but I guarantee, we don’t see cases like this every day. Each party has until April 6 to decide if it will file a Petition for Review (PFR) of the judge’s decision. If either side does, it will be interesting because PFRs generally go to the Board members for review. Because the Board Chairman was named in this complaint and because the Board is a party to this litigation, there is an apparent conflict of interest. We will have to wait to see what the Board members do if a PFR is filed. None of the options are particularly attractive. Stay tuned. [email protected]

Korb v. MSPB decision full text.

Sorry, but Your Illegal Agency Accommodation Policy Doesn’t Supersede the Law

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By Deborah Hopkins

Can an agency policy overwrite existing law, if it’s specialized to a very small group of employees? In a word, nope. This article provides a review of reasonable accommodation requirements, courtesy of TSA. Two issues are central to this case: (1) reasonable accommodation requirements for individuals with disabilities, and (2) internal agency policies that conflict with the law.

In 2011, TSA subjected an employee to discrimination based on disability because it missed a crucial step in the required accommodation process under the Rehabilitation Act. Here’s a quick recap of the facts in Marielle L. v. TSA, EEOC No. 0720140024 (October 22, 2015):

  • A Transportation Security Officer (TSO) had a medical condition and made the agency aware of the condition
  • The medical condition meant that she could not lift 70 lbs, which was a requirement for the position as per the Aviation and Transportation Security Act (ATSA)
  • TSA declared that the employee was not qualified to do the job and no accommodation would allow her to lift 70 lbs; the employee agreed
  • Rather than consider reassignment, TSA gave the employee an application for retirement
  • The employee didn’t want to retire; leadership told her to request LWOP or else she’d be placed on AWOL
  • Employee was eventually terminated for physical inability to perform

The agency missed an important, legally-required step in the accommodation process when they did not consider available reassignments. Let’s review the requirements.

When making an accommodation request, an employee must show that (1) She is an individual with a disability, (2) She is a qualified individual with a disability, and (3) The Agency failed to provide a reasonable accommodation. From there, the agency is required to accommodate the employee unless doing so would cause an undue hardship, or no accommodation is available.

But, it doesn’t stop there. If the agency cannot provide a reasonable accommodation or no accommodation is available for that job, the agency must next consider reassignment as an accommodation – and this is where TSA messed up. The agency must look for a vacant, funded position for which the employee is qualified, and not just within the agency but all the way up to the Department level, which in this case would mean DHS-wide. If no vacant, funded position is available at the employee’s grade level the agency must look for lower-graded positions for which the employee is qualified. Once these options have been exhausted and no position is available, only then may the agency remove the employee for inability to perform.

Here’s where issue 1 (consider reassignment) meets issue 2 (internal policy that violates the law). The agency argued that they could remove the employee because the ATSA specifies that if an employee does not meet the requirements of the TSO position, that employee may be removed. The ATSA also specified that the TSO who cannot perform is not eligible for accommodation, including reassignment. The AJ told the agency that internal policy did not supersede the Rehabilitation Act requirement of considering reassignment as an accommodation and that the policy be modified to reflect the law. The agency argued that the AJ’s authority did not include a requirement that TSA change a national policy, but the EEOC disagreed, because changing the policy would simply reflect “the obligation [TSA] already has – to offer a reasonable accommodation in the form of reassignment, when appropriate, to TSOs.”

There you have it. Internal policies cannot override the law. Therefore, the agency had to pay out compensatory damages, attorney fees and costs for discriminating against the employee.

This stuff is important and even though it may seem basic, it’s clear from the case above that agencies get it wrong because they don’t know the law. We teach a whole day on Reasonable Accommodation Under the ADA and Rehabilitation Act during Absence & Medical Issues Week, next held February 1-5 in Washington, DC. Or, bring FELTG onsite and we’ll teach you all about it on your home field. You can’t afford to make a mistake like this! [email protected]