Whistleblower Retaliation (OSC)
The Law Firm of Matthew D. Estes is proud to represent federal employees who are subjected to retaliation in the workplace for blowing this whistle.
It is unlawful for a federal agency to retaliate against an employee for the employee making a protected disclosure. Retaliation can take the form of taking a personnel action, threatening to take a personnel action, or failing to take a personnel action. Protected disclosures include:
- a violation of any law, rule, or regulation
- gross mismanagement
- a gross waste of funds
- an abuse of authority
- a substantial and specific danger to public health or safety.
These disclosures may be made to a supervisor, to another management official in a position to remedy the alleged wrongdoing, to the Agency's Human Resources or Inspector General offices, or even to a member of Congress or the press. However, disclosures that are prohibited
A federal employee who believes they made a protected disclosure and are being retaliated against can file a whistleblower reprisal complaint with the United States Office of Special Counsel (OSC). OSC is an independent federal agency tasked with protecting federal employees who blow the whistle from retaliation by their agencies, in addition to investigating 13 other Prohibited Personnel Practices under 5 U.S.C. § 2302(b). To establish a prima facie violation of this section, an employee must demonstrate that: (1) a protected disclosure of information was made; (2) the proposing or deciding official had knowledge of the protected disclosure; (3) a personnel action was taken or threatened; and (4) the protected disclosure was a contributing factor in the personnel action at issue.
After filing a complaint online, OSC will review the complaint, and in most cases assign an attorney investigator to review the matter. The review may include requesting additional information from the employee and contacting the Agency to get their side of the story. whether OSC believes it can establish whistleblower reprisal. Often, OSC will also attempt to facilitate resolution of the matter between the parties. OSC also has the authority to request that the U.S. Merit Systems Protection Board (MSPB) issue a stay of any pending proposed actions that it believes are retaliatory and would likely cause irreparable harm to the employee if not stayed. Obtaining a stay can be helpful in reaching a resolution of the matter without the need for lengthy litigation. After investigating the complaint, OSC will decide whether it believes it can establish reprisal on the employee's behalf. Whistleblowers may be entitled to reversal of the personnel action, back pay where appropriate, compensatory damages, reimbursement of attorney fees and other relief.
If the matter is not resolved at the OSC investigative stage, and OSC does not elect to represent the employee directly, then the employee is permitted to file an Individual Right of Action (IRA) appeal to the MSPB within 35 days of receiving the OSC's final determination letter. An IRA appeal by a whistleblower proceeds much like a regular MSPB appeal but the burden is on the employee to prove retaliation.
It is important to note that if the personnel action being challenged as whistleblower retaliation is an adverse action (i.e. a suspension of 15 days or greater, a demotion, or a removal), then it is an action that can be appealed directly to the MSPB, and the employee does not need to first file a complaint with OSC. In fact, filing a complaint with OSC may forfeit rights and protections the employee would otherwise have by challenging the adverse action directly through an MSPB appeal. In cases where an adverse action is issued, it is usually best to file an appeal with the MSPB and add a claim of whistleblower retaliation as an affirmative defense.
The Law Firm of Matthew D. Estes has successfully represented federal whistleblowers before the OSC and MSPB. Please contact us today to protect your rights.