Supervisor Was Once Left Off Emails, Now She’s Getting Back Pay
By Dan Gephart, February 12, 2025
Quick facts:
- An assistant specialist failed to carbon copy her first-line supervisor on emails to agency leadership.
- A commander ordered the supervisor to reveal how she found out she was being left off emails, but she refused.
- The agency suspended the appellant but the MSPB overturned the suspension, finding the agency’s misconduct investigation of the appellant was motivated by whistleblower retaliation.
As if there weren’t already more than enough topics that divide us, I found another one recently. When scrolling through a social media site, I found a passionate debate about the “carbon copy” field on emails.
We are being overrun with emails, one poster claimed, and it’s because too many people are unnecessarily getting carbon copied on emails. Another poster called the claim “nonsense” and argued that “cc” is a great tool for keeping colleagues up to date.
I don’t know where the special assistant in Young v. Department of Homeland Security, 2024 MSPB 19 (Dec. 10, 2024) stands on the giant email debate, but we do know one thing: She communicated regularly with her supervisor’s boss without cc:ing said supervisor.
And that eventually led to a huge mess, including claims of reprisal and whistleblowing. We’re going to focus on the appellant in Young, but it’s so complicated we need to start with a cast of characters:
- The appellant. This person was a GS-15 supervisory field operation specialist and served as chief of staff to the commander.
- The special assistant. This individual reported directly to the appellant. She was the one who left the appellant off email communications.
- The mission support specialist. This person also reported directly to the appellant.
- The commander. This person supervised the appellant.
At some point, the appellant became aware she was being left off emails between the special assistant and agency leadership, despite previous directives to include her in all such communications. The appellant admonished the special assistant and directed her to draft a memorandum to explain how she would remedy the issue.
Instead, the special assistant told the commander what happened.
The commander reprimanded the appellant and ordered her to identify the individual who “provided the information to her concerning the special assistant’s communications.” The appellant refused, contending that the individual was a whistleblower.
In a separate action, the Commander reassigned the mission support specialist from the appellant’s supervision. Per footnotes in the decision, the record suggestions the mission support specialist is the person who told the appellant she was being left off emails.
Cue the complaints.
The appellant filed two complaints with the Office of Special Counsel (OSC), one related to the commander’s “verbal admonishment for insubordination for failing to obey his order to disclose the name of the employee who informed the appellant of the communication issues with the special assistant” and the other an allegation of improper favoritism toward the special assistant by reassigning her to another supervisor.
The appellant took her allegations to the agency’s Office of Inspector General (OIG). The appellant informed the commander, via a memorandum, that she felt he had committed prohibited personnel practices.
In a completely separate action, the mission support specialist filed an EEO complaint, alleging the commander improperly temporarily reassigned her and denied her training.
And now, the weaving of the web gets further tangled.
The appellant served as a management official in the mediation of the mission support specialist’s EEO complaint, which resulted in a settlement agreement. All it needed was the approval of a higher-level official. That never came, as the commander informed the EEO office that the settlement agreement was not approved.
You still following?
The commander contacted the OIG, alleging the appellant did not inform him of the EEO complaint or discuss with him, as previously instructed, whether it was OK to engage in mediation. The commander further alleged the mission support specialist was a friend of the appellant and used the EEO process to “obtain training and a promotion for the mission support specialist in circumvention of agency rules.”
The commander’s action led to an investigation by the Office of Professional Responsibility (OPR). Soon after, the agency discipline review board proposed the appellant’s removal based on the charges of an appearance of a conflict of interest, failure to follow supervisory instructions, and lack of candor. The deciding official issued a decision sustaining the appearance of a conflict of interest and failure to follow supervisory instructions charges, but not the lack of candor charge. The official mitigated the penalty to a 15-day suspension. During this time, the commander was replaced, and the new commander reassigned the appellant.
All this led to the MSPB, where the appellant alleged the agency’s decision to suspend her for 15 days and reassign her constituted reprisal for her protected disclosures and protected activity. The administrative judge found the appellant met her burden of proving by preponderant evidence she made a protected disclosure and engaged in protected activity that was a contributing factor in the agency’s decisions to suspend and reassign her. However, the AJ also found the agency proved by clear and convincing evidence that it would have suspended and reassigned her absent her protected disclosure.
After considering the Carr factors, the Board was “not left with the firm belief that the agency would have initiated an investigation into the appellant absent her protected whistleblowing activity.” It continued:
Although the Commander had some sound reasons to request an investigation, his motive to retaliate was strong, and the agency failed to present evidence showing that it reported and initiated investigations into non-whistleblower employees for similar conduct. Therefore, we find that the agency failed to prove by clear and convincing evidence that it would have reported and initiated an investigation into the appellant’s conduct absent her whistleblowing. Accordingly, we grant the appellant’s request for corrective action with respect to her claim of a retaliatory investigation and her subsequent suspension.
The Board ordered the agency to cancel the appellant’s 15-day suspension and pay back pay, interest on back pay, and other benefits.
You’ve undoubtedly heard the phrase: This meeting could’ve been an email. Well, this case could’ve ended at an email, if only the appellant was carbon copied. [email protected]
Related training:
- Handling Insubordination and Failure to Follow Instructions, March 6
- MSPB Law Week, April 7-11