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Developments at the OSC: MSPB Stays Bad Performance Evaluations

Developments at the OSC:  On November 29, 2012, the U.S. Office of Special Counsel (OSC) received a stay order from the Merit Systems Protection Board (MSPB), protecting four whistleblowers from threatened reprisal, including negative performance evaluations and bad employment references.  

In Special Counsel ex rel. John Does 1-4 v. Dept. of Commerce, OSC sought a 45-day stay of various threatened personnel actions against four anonymous employees.  The four "John Does" were employees of the Department of Commerce Office of Inspector General (OIG), although all of them were known to be applying for work outside OIG during the relevant time period.  According to OSC's stay request, OIG managers tried to coerce all four John Does into signing nondisclosure agreements which precluded them from whistleblowing, voluntarily cooperating with OSC or reporting wrongdoing to Congress.  Each John Doe was issued a failing performance evaluation inconsistent with his prior performance history.  OIG management then offered to withhold the performance appraisals from the John Does' official personnel folders and to provide neutral references--if the employees agreed to sign a nondisclosure agreement.  This agreement barred the employees from disparaging the Agency--including in communications to Congress and the OSC--with the existence and terms of the agreement confidential.  OIG threatened that John Does who refused to sign or who breached the agreement would have the failing performance evaluations forwarded to their new employers.  

OSC's stay request characterized these alleged actions as potential Prohibited Personnel Practices.  First, OSC characterized OIG's actions as whistleblower reprisal.  Even though the John Does were not necessarily whistleblowers, OSC contended that OIG mangement perceived them as whistleblowers and retaliated based on that perception.  Second, OSC characterized that the OIG's agreement as taking or threatening action against an employee for cooperation in an OSC proceeding or providing information to OSC, in violation of 5 U.S.C. 2302(b)(9).  Finally, OSC claimed that OIG's actions violated 5 U.S.C. 2302(b)(12), which prohibits actions violating laws implementing the Merit Systems Principles.  OSC specifically cited the nondisclosure agreement as violating federal statutes which protect employees' ability to petition Congress and to seek redress for whistleblower reprisal.

OSC stay petitions are adjudicated by a single MSPB member rather than the entire Board.  MSPB Member Robbins granted a 45-day stay, but denied OSC's request to find the nondisclosure agreement void, on the grounds that such relief was not available on a stay action.  Member Robbins noted that a separate OSC request for a protective order against the nondisclosure agreements was docketed separately and would be adjudicated later by the MSPB.   

If you believe that you have been the subject of whistleblower reprisal, please contact our firm to inquire about obtaining representation.  

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