By Harold S. Berman J.D.
Although an employee had not specifically raised a perceived whistleblower claim before the Office of Special Counsel (OSC) or stated that his supervisors “perceived” him to have engaged in protected activity, neither the text nor the legislative history of the Whistleblower Protection Act mandated a strict exhaustion requirement.
In this case of first impression, the First Circuit held that a Department of Homeland Security employee could pursue his claim that management retaliated against him because they perceived he assisted in a colleague’s whistleblower complaint by delivering an email to him. As a result, the appeals court reversed the Merit Systems Protection Board’s dismissal, finding that the employee had exhausted his claim even though he did not expressly state that he was pursuing a perceived assistance claim. The First Circuit held that more lenient exhaustion standards applied, and it was sufficient to make factual allegations that supported the claim. However, the court dismissed the employee’s actual assistance claim because he raised his objections to the MSPB’s dismissal for the first time on appeal (Mount v. U.S. Department of Homeland Security, August 29, 2019, Torruella, J.).
Whistleblower email. The employee was a special agent for the Department of Homeland Security. In December 2014, his supervisor asked him to deliver a hard copy of an email to a colleague who had filed a whistleblower action against another special agent. The supervisor asked the employee to tell the colleague that the email could be useful to his case.
Adverse actions. The employee delivered the email, which the colleague ultimately used in his whistleblower action. The Department then investigated how the colleague had obtained the email. Although an investigator interviewed the employee under oath, the employee was informed in November 2016 that no case had been opened because there was no finding he had improperly disseminated the email. However, over the course of the investigation, the employee was twice passed over for promotion. He also was given a lower annual performance evaluation than he had received previously, because a deputy agent lowered the rating his supervisor had already given him.
OSC complaint. In December 2015, the employee filed a complaint with the Office of Special Counsel (OSC), describing the adverse actions he experienced, and alleging that management retaliated against him for providing information to the colleague that was used in the whistleblower action, or at least, because Homeland Security officials perceived him as having provided the information. The OSC took no action, and so the employee appealed to the MSPB.
The MSPB denied the employee’s claim, finding that his conduct was too minimal to be considered actual assistance, and that he had not exhausted his perceived assistance claim because there was no evidence that he expressly sought to raise that claim to the OSC. The employee appealed to the First Circuit.
Actual assistance claim. The appeals court found that the employee’s objections failed concerning the MSPB’s ruling against his actual assistance claim. The MSPB ruled that the employee’s involvement was too minimal to constitute actual assistance, as he merely followed the directions of his supervisor.
On appeal, the employee argued that Homeland Security’s investigation was retaliatory, and so the MSPB erred in admitting his investigation interview testimony, and relying on that testimony to conclude that he did not assist in the whistleblower action. However, although the employee claimed he raised these same objections to the evidence before the MSPB, there were no references to his objections anywhere in the record.
Rather, the employee himself had relied on the interview testimony in his opening brief to the MSPB. Because the employee did not challenge the admissibility of the interview testimony before the MSPB, he prevented the MSPB from addressing and making determinations about his arguments concerning the retaliatory nature of the interview. Consequently, he could not bring his challenge for the first time before the appeals court.
Perceived assistance claim. In this matter of first impression, the First Circuit reversed the MSPB’s dismissal of the employee’s perceived assistance claim, holding that the employee did not need to correctly label the specific cause of action or legal theory underlying his claim to fulfill the Whistleblower Protection Act’s exhaustion requirement. The employee only needed to provide a “sufficient [factual] basis” for the MSPB to investigate the claim. Consequently, the appeals court granted his petition for review, and remanded his claim for further proceedings.
Under the standards articulated in the appeals court’s holding, the employee had sufficiently exhausted his claim under the requirements of the Whistleblower Protection Act. Although he had not specifically raised a perceived whistleblower claim before the OSC, or stated that his supervisors “perceived” him to have engaged in protected activity, neither the text nor the legislative history of the Whistleblower Protection Act mandated such a strict exhaustion requirement. Absent explicit language in the statute, the court was unwilling to make it harder for whistleblowers to obtain relief based on the rights the statute sought to protect.
Rather, the correct approach was to interpret the Whistleblower Protection Act’s exhaustion requirement leniently, consistent with the requirements of other statutes, such as the Federal Tort Claims Act and Title VII. The court also noted the MSPB had interpreted the Whistleblower Protection Act’s exhaustion requirement more leniently in some previous cases.
The employee’s allegations could be construed as making a perceived assistance claim. He repeatedly alleged his supervisors took actions “to retaliate against [him] for providing information” to the colleague that was then used in the OSC’s whistleblower investigation. He also alleged his supervisor told him that senior management “was not happy about the email” and that the supervisor had told senior management that it was the employee’s decision to give the email to the colleague. He also claimed a senior manager directly challenged him about handing over the email, and that he was told he was being investigated for handing over the email without authorization and was not interviewed for an open position because of the incident.
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