Whistleblower Reprisal Found, Relief Ordered

On July 25, 2011, the Merit Systems Protection Board (MSPB) issued its decision in Ingram v. Dept. of the Army, 2011 MSPB 71. Reversing the administrative judge, the MSPB found the Army to have engaged in whistleblower reprisal, and ordered relief.

Ingram was a civilian computer engineer working for the Army in Orlando. In June 2008, an Army contractor requested to videotape and to photograph a demonstration of its products at an Army facility alongside those of a competitor, recordings which Ingram suspected would later be used by contractor for future promotional purposes. Ingram objected to this request as contrary to Department of Defense ethics regulations, and sought an opinion from the Army's legal department. The legal department agreed with Ingram, and advised that the proposed demonstration was contrary to regulations.

While Ingram's managers initially praised Ingram's initiative in seeking this legal opinion, in the months that followed these managers still continued to push to authorize the contractor's demonstration. Ingram continued to raise concerns about this possible violation of regulations, however, and ultimately the demonstration was cancelled. Following its cancellation, management took several actions against Ingram: stripping some duties, denying a requested transfer, issuing Ingram an uncharacteristically low performance evaluation and finally transferring Ingram to a post with lesser responsibilities which Ingram considered tantamount to a demotion.

Ingram filed a whistleblower retaliation complaint with the Office of Special Counsel (OSC), which opted not to proceed with Ingram's claim. Ingram then appealed to the MSPB. The MSPB administrative judge dismissed Ingram's claim for lack of jurisdiction, finding that Ingram had not made a protected disclosure. On petition for review, the full Board reversed, finding that Ingram had made a protected whistleblowing disclosure and had met his burden of making a 'nonfrivolous allegation' of whistleblower reprisal sufficient to give the MSPB jurisdiction over his case. See Ingram v. Dept. of the Army, 114 M.S.P.R. 43 (2010). The Board remanded Ingram's case to the administrative judge for further proceedings.

On remand, Ingram waived a hearing. Adjudicating on the written record, the administrative judge found that Ingram had failed to prove that he had made a protected disclosure by the preponderance of the evidence. Specifically, the administrative judge found that Ingram could not have formed a 'reasonable belief' that the proposed demonstration was illegal, on the grounds that changes had been made to the program in response to the legal department opinion, that Ingram had advocated for the event, and that any discussions between Ingram and his managers were merely internal disagreements and did not rise to the level of whistleblowing. Ingram again petitioned the full Board for review.

On this second petition for review, the Board again reversed the administrative judge, found whistleblower reprisal and ordered relief for Ingram. The Board noted that any changes to the program were made prior to receipt of the legal department's opinion letter and that no proposed change to the demonstration clearly precluded videotaping or photographing the demonstration. The Board found that Ingram had in fact never advocated for the demonstration after the legal department had issued its opinion letter. The Board also held that the existence of the legal department's opinion letter and Ingram's attempts to stop the demonstration due to its violations of Army regulations transcended a mere internal disagreement.

Turning to the issue of the specific personnel actions allegedly taken against Ingram, the Board found that duty-stripping, unfavorable transfer and performance evaluation constituted actionable harms. The Board reasoned that the reassignment was actionable due to loss of promotion potential in the new position. For the performance evaluation, the Board found the rating to be an outlier without an explanation, with Ingram going from many years of outstanding ratings to a statistically below average rating in a single year. In reaching this conclusion, the Board was not dissuaded by the agency's argument that the ratings could not be compared given that Ingram's 'below average' rating was the sole rating Ingram received under the NSPS personnel system and was thus structured differently than the other ratings. However, the Board held that the denied request for transfer was not an actionable harm, as the evidence did not show any involuntary actions taken against Ingram because he had agreed to temporarily remain on his prior assignment for a transition period.

As the Army did not attempt to show that it would have taken the same actions against Ingram, even absent Ingram's protected whistleblowing, the Board found that Army liable for whistleblower reprisal. As relief, the MSPB ordered Ingram reinstated to his position and duties and directed that Ingram's negative performance evaluation be rescinded (with any applicable back pay).

* 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.