Whistleblower Protection for Screener

In a recent decision, the Merit System Protection Board (MSPB/Board) held that the Whistleblower Protection Act (WPA) protects disclosures of concerns with screening procedure changes implemented by the Transportation Security Administration (TSA/agency). See Miller v. U.S. Department of Homeland Security, 2009 MSPB 75 (05/04/09). The employee, a Transportation Security Specialist with TSA, was responsible for testing baggage for explosives and passenger security systems at U.S. airports. The agency was intending to change some of its standard operating procedures (SOPs) relating to the employee's position. However, the employee believed that some of the proposed changes would have catastrophic results by making it easier for an explosive device to be placed on board an aircraft. Consequently, on two separate occasions, the employee disclosed these concerns to people outside of his chain of command. Subsequently, the agency proposed disciplinary action against the employee.

The employee filed an appeal at the Board alleging that the agency violated the WPA when it proposed to suspend him for 14 days and remove some of his leadership duties. Specifically, he asserted that the agency's actions were in retaliation for his protected disclosures, including criticism of proposed changes in the agency's SOPs. At the employee's hearing, the administrative judge determined that he did not prove that he made protected disclosures because he did not show he had a reasonable belief that implementation of the SOPs would pose a substantial and specific danger to public health or safety. Additionally, the AJ concluded that the employee did not have the education, training or expertise to support his claims. Therefore, the employee's request for corrective action under the WPA was denied. The employee filed a petition with the full Board for review of the initial decision.

The Board reversed, finding that the employee reasonably believed that the changes he identified in the agency's SOPs constituted disclosure of substantial and specific dangers to public safety. The reasonableness of the employee's belief is based on facts known to and readily ascertainable by him. One of the his primary job duties, for the four years prior to the implementation of the new SOPs, was to attempt to pass bags tainted with explosive contaminants through screening. Thus, the Board concluded the employee's experience in conducting these tests was more than sufficient to support a reasonable belief in the fallibility of the machines. Additionally, the Board noted that an employee is not required to prove the truth of his assertion regarding a safety issue. Instead, he is only required to prove that a reasonable person in his position would believe there was such an issue.

The Board concluded the employee's disclosure was concerning a specific danger to the public as the potential consequences, i.e. placement of an explosive device on a commercial airliner, would have been catastrophic. Also, the Board pointed to the significant amount of money the federal government has spent on extensive screening measures as further evidence that the potential for the harm was likely and imminent. Accordingly, the Board remanded the matter back to the administrative judge to determine whether the employee's protected disclosure was a contributing factor in the adverse personnel action taken against him by the agency. If such a determination is made, the Board will order corrective action, unless the agency establishes by clear and convincing evidence that it would have taken the same personnel actions in the absence of the disclosure.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to https://www.passmanandkaplan.com/.

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