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Developments at the MSPB: Reprisal for Whistleblower Settlement

Developments at the MSPB:  On November 22, 2016, the Merit Systems Protection Board (Board) issued its decision in Elder v. Department of the Air Force,  2016 MPSB 41.  The Board reversed the removal of Mr. Elder, finding retaliation for Mr. Elder's efforts to enforce his whistleblower complaint settlement agreement.

Mr. Elder appealed a prior removal from his electrician position to the Board, alleging whistleblower reprisal, resulting in a settlement agreement under which the removal was mitigated to a 90-day suspension and Mr. Elder was reinstated with back pay.  

The Defense Finance and Accounting Service (DFAS) incorrectly assessed a debt against Mr. Elder for retroactive health insurance premiums and began garnishing Mr. Elder's salary to pay this debt.  Mr. Elder filed two petitions for enforcement of the settlement agreement with the Board.  With approval, Mr. Elder visited to the Agency's legal office in connection with enforcement proceedings, returned briefly to his desk (continuing discussions telephonically with the Legal Department), and then returned to the legal department.  Mr. Elder's supervisor issued incident reports regarding these multiple visits.  Mr. Elder informed his team lead that he would be working on responses to the incident reports.  The Agency then removed Mr. Elder for unauthorized absence and inappropriate conduct.  Mr. Elder appealed to the Board.

At the Board, the Agency failed to timely file its Agency File and was barred by the Administrative Judge from submitting additional evidence without proof that the evidence was not available earlier.  The day before the record closed, the Agency submitted evidence with no proof of unavailability.  The Administrative Judge considered this evidence, but found the removal charges unsubstantiated and further found retaliation for Mr. Elder's whistleblower retaliation appeal and enforcement of the related settlement, in violation of 5 U.S.C. 2302(b)(9)(a)(i).  The Agency then petitioned for review.

The Board affirmed, modifying the administrative judge's analysis.  The administrative judge erred by not applying the (b)(9)(a)(i) legal framework.  The Board found that retaliation was a contributing factor in the removal.  The Board held that the Agency failed to show that it would have removed Mr. Elder even absent protected activity, noting that the removal charge was unsubstantiated and that the removing managers had a strong motive to retaliate.  The Agency failed to present any comparator evidence because it failed to state whether or not the comparators had engaged in protected activity.  

Accordingly, the Board reinstated Mr. Elder again with back pay, as well as the opportunity to move for attorneys' fees and costs and compensatory damages.

If you are a federal employee and believe you have suffered whistleblower reprisal or retaliation for filing a whistleblower appeal, please feel free to contact Passman & Kaplan to request an initial consultation

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