Whistle Blower Finally Allowed His Day in Court

May 31, 2016

whistle blower

A federal employee tried to assert a personnel retaliation claim against his employer after he had blown the whistle on his employing agency. His claim was rebuffed by his agency as frivolous due to lack of specificity in identifying the contributing factor in his charges.  The employee lost on appeal to the Merit Systems Protection Board (MSPB) twice.  Then, he appealed to the United States Court of Appeals for the Federal Circuit who determined that his charges were sufficient and ordered the MSPB to allow him to have his day in court.

Whistle Blower Files Complaint

In Cahill v. MSPB 2015-3152May 10, 2016, Cahill, an employee of the United States Department of Health and Human Services in the Centers for Disease Control and Prevention, filed a complaint with the Office of Special Counsel, alleging that agency officials had violated the whistle blower protections of 5 U.S.C. § 2302(b)(8)(A) by taking personnel actions against him as a result of a disclosure about agency practices.

Cahill’s alleged whistle blowing activity was that he voiced his concerns at a group meeting with the Behavioral and Clinical Surveillance Branch (BCSB), which, among other things, conducts studies for which its field workers use hand-held devices called “Pocket PCs” to collect data. His concerns were that some of the agency’s data-collection instruments and procedures, including the Pocket PCs were outdated, had bad batteries, lost data, presented data-entry problems, and generally did not work properly.

In his complaint, Cahill contended that his supervisors began treating him differently after that meeting; that he was not invited to any more of those meetings, was discouraged from participating in projects to which he was assigned, and was eventually placed on a Performance Action Plan; he also noticed that he began to have problems with his Assistant Branch Chief, who purportedly retaliated against him by changing his telework agreement and providing him with negative feedback; that he received an email asking him not to participate in certain BCSB activities; he also complained that he received a negative Performance Management Appraisal Program review; and that his supervisor treated him poorly.

The matter was referred to the Office of Special Counsel, but they determined his complaints were insufficient for them to pursue a detailed investigation of his claim and so closed its file on the matter. Cahill did not give up, he then filed an individual-right-of-action (IRA) appeal with the MSPB under 5 U.S.C. §§ 1214(a)(3)(A), 1221(a).

Merit Systems Protection Board (MSPB)

The first level MSPB administrative judge agreed with the Office of Special Counsel and concluded that Cahill had not presented enough information to constitute non-frivolous allegations of various elements of a whistle blower claim under 5 U.S.C. § 2302(b)(8)(A), and the judge therefore dismissed the appeal for lack of Board jurisdiction.

Cahill sought MSPB review (a second look by the MSPB) under 5 C.F.R. § 1201.114(c), this time the MSPB modified but ultimately affirmed the administrative judge’s decision. The modification was expressed as their disagreement with the first look MSPB judge because they said Cahill had non-frivolously complained because the disclosures he made at the meeting was of information he reasonably believed caused gross mismanagement and presented a substantial and specific danger to public health and safety. Furthermore, the second look MSPB determined that Cahill had alleged at least one statutorily covered personnel action (placement on a performance plan) and that more such actions may exist, including the alleged performance evaluation and a significant change in duties, responsibilities, or working conditions.

But the bad news was that this second MSPB consideration decided Cahill failed to adequately connect those allegations; he had failed non-frivolously to allege that “his 2012 disclosure was a contributing factor in a personnel action” for one reason: he had failed to state that any of the officials involved in the personnel actions knew of his March 2012 disclosure.  On that sole basis, the MSPB determined that it lacked jurisdiction and dismissed the appeal.

The United States Court of Appeals for the Federal Circuit

Again Cahill appealed, this time to the United States Court of Appeals for the Federal Circuit.  The Federal Circuit determined that the dispute was limited to the simple question of causation; whether Cahill had non-frivolously alleged that his March 2012 disclosure was a contributing factor in at least one such personnel action.

The Federal Circuit court explained that the statute expressly states that the “contributing factor” element of the whistle blower claim can be established “through circumstantial evidence, such as evidence that (A) the official taking the personnel action knew of the disclosure . . . ; and (B) the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure . . . was a contributing factor in the personnel action.”

So the Federal Circuit said the only disputed issue is whether any of the agency officials taking the challenged personnel actions knew of the March 2012 disclosure.  The court concluded that Cahill had sufficiently alleged that such an agency official did have such knowledge. In the key sentence that “[o]n March 22, 2012, there was a group meeting with BCSB management, team leads, project leads, and QSDM management.”

Although Cahill had failed to give the names of the meeting’s attendees; elaborate on how many people fit each of the descriptions “BCSB management,” “team leads,” “project leads,” and

QSDM management.”  Also, he did not expressly state that the particular officials he alleged to have committed the personnel actions at issue knew of the March 2012 disclosure.

Nevertheless, the Federal Circuit court said that when read with an eye on likely inferences appropriate to the context, Cahill’s allegations were sufficiently specific and plausible to constitute non-frivolous assertions that at least one, and perhaps three, of the officials charged with the personnel actions at issue attended the March 2012 meeting or at least knew what Cahill disclosed there.  Accordingly, the Federal Circuit reversed the MSPB’s decision which had dismissed Cahill’s Individual Right of Action.

A Common Sense Precedent

The conclusion?  The highest court said, in effect, when we receive a whistle blower retaliation complaint we only need to use common sense to see if a complaint contains enough information go ahead and provide the complainant with his day in court.

If the lower courts and the employing agency would have taken this common sense view it could have saved Cahill numerous unnecessary delays and costs.  What is the necessary legalese?  Merely consider the likely inferences appropriate to the context.  Wow, what a simple concept.

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