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By Matthew D. Estes
The U.S. Merit Systems Protection Board (MSPB) recently found that the Department of the Army illegally retaliated against an employee who blew the whistle on potential ethical violations and security risks posed by a planned medical simulation training event at Fort Carson, Colorado. The MSPB ordered the Army to return the employee to his pre-whistleblowing position, revise low performance review ratings that were issued to the employee as punishment for his whistleblowing and pay the employee back pay he had lost a result of the Agency’s unlawful retaliation.
In, Ingram v. Dept. of the Army, the Board reaffirmed that federal employees who reasonably believe that their manager’s conduct is unlawful, dangerous or against regulation may still be entitled to protection under the Whistleblower Protection Act (WPA), even if no violation actually occurred.
In 2008, Harroll Ingram, a computer/systems engineer, was providing engineering assistance to the Army’s Medical Simulation Training Center (MTSC) at Fort Carson, when a federal contractor sought permission to demonstrate and test a simulated wound product during an upcoming training event. Additionally, the contractor wanted to photograph and videotape student soldiers while they used and received demonstrations on the developmental product as well as products provided by a competitor.
Ingram was concerned that the contractor would improperly use the soldiers’ images to promote its product in the future and voiced his objections to management. Ingram also sought guidance on the issue from the Department of Defense’s legal counsel. Soon after, DoD’s legal department agreed that the contractor’s proposal would violate Joint Ethics Regulations and could also result in the disclosure of trade secrets. Indeed, the legal department recommended that the developmental contractor be prohibited from participating in the training event at all.
Despite the legal department’s, opinions and recommendation, Fort Carson’s MTSC program manager decided to let the event continue. In subsequent communications with his first line supervisor, Ingram continued to oppose the contractor’s participation in the event, stressing that potential ethics violations could result in criminal prosecutions.
Although his supervisors ultimately cancelled the training event, in the months to come, Ingram faced retaliation at the hands of the MTSC program manager. Initially, the program manager stopped communicating with Ingram and reduced his responsibilities. Next, Ingram received a performance rating that was significantly lower than those he had received in the preceding four years. Finally, Ingram was transferred from the MTSC team to a program with far less opportunity for promotion.
In the wake of the Agency’s actions, Ingram filed a whistleblower retaliation complaint with the U.S. Office of the Special Counsel (OSC), but the agency rejected his claim, leaving him to appeal the Agency’s personnel actions to the MSPB. On two occasions, an MSPB Administrative Judge dismissed Ingram’s case, ruling that Ingram’s statements to his supervisors did not qualify as “protected disclosures” under the WPA. The administrative judge relied heavily on the fact that Ingram’s statements did not evidence a reasonable belief that the Agency had engaged in prohibited conduct, since the MTSC project manager did not ultimately allow the proposed videotaping and photography by the contractor. However, on appeal to the full Board, it was decided that Ingram did blow the whistle and that he did suffer retaliation for bringing the Army’s wrongdoing to light. The Board found that Ingram’s disclosures were protected because they were made prior to the manager’s decision to modify his actions.
What Federal Employees Need to Know
- If an employee reasonably believes that his employing agency has violated a law, rule or regulation, or that it has engaged in gross mismanagement or an abuse of authority, his or her disclosures about the same are protected under the WPA.
- Whether an employee’s belief is “reasonable” is determined by assessing whether a “disinterested observer” with knowledge of certain facts known to and readily ascertainable by the employee could “reasonably conclude that the actions of the government evidenced wrongdoing,” as defined by the WPA.
- Proof of an actual violation is not needed to establish that an employee “reasonably believed” his employer had engaged in prohibited wrongdoing.
- An employee’s disclosures concerning disagreements about debatable management decisions are not protected disclosures under the WPA. However, an employee’s reasonable belief that his manager’s conduct would violate agency regulations and his supervisor’s corroborating opinion, amounts to more than a mere “internal disagreement” and will be entitled to protection under the WPA.
- Examples of unlawful retaliation against employees who make protected disclosures may include any significant change in duties or working conditions, transfers, reassignments, poor performance evaluations, demotions and disciplinary actions.
Federal employees have an absolute right to a workplace free of retaliation. The WPA is a complex statute that continues to develop through new case law. Federal employees who believe that they have been or are being subjected to punitive action for exposing their employer’s illegal or wrongful conduct should contact a federal sector employment law attorney who will aggressively defend their right to blow the whistle, without fear of retaliation.
Matthew D. Estes is an associate with Tully Rinckey PLLC working in the firm’s federal employment and labor law group. Matthew can be reached at mestes@fedattorney.com.To schedule a meeting with one of Tully Rinckey PLLC’s experienced employment law attorneys call 202-787-1900.
