Both federal employment law and its subdiscipline of whistleblower protection have undergone quiet yet significant change in the last decade, regardless of which political party controls Congress and the White House. From a highwater mark of concern for civil liberties and civil rights beginning in the Lyndon Johnson Administration and ending at 9/11, the team running Washington, D.C., has slowly retreated to norms more protective of the status quo. “Change” is not something promoted to the extent it was previously.
Whistleblower laws, which borrow heavily from Title VII, have been in retreat, with some notable counterattacks, since Secretary Hazel O’Leary’s great moment in supporting Energy Department whistleblowing in the early 1990s. The 1990s experience taught both political parties that whistleblowers could and would be weaponized. The bipartisan consensus supporting transparency and candor so prevalent on Capitol Hill, in particular, during the 1980s, morphed into disinformation campaigns, “fake news,” and social media vectoring. The coverage of Benghazi was an important turning point, being raised as an issue in both the 2016 and 2020 presidential campaigns.
The Merit Systems Protection Board (“MSPB” or “Board”), too, is modifying previous Board decision-making to restrain whistleblower laws. It is not a popular opinion; however, it is undeniable that “social order” and “control” are what the Washington elite now promote. The now infamous “January 6th” simply compounded the retreat. Former Chair Beth Slavet will go down in history much like Hazel O’Leary, the captain of a ship on high water.
The MSPB has lacked quorum since 2017. Having regained quorum in May 2022, the MPSB began processing through its massive case backlog. One of the most impactful decisions to result from this is Singh v. U.S.P.S., SF-0752-15-0155-I-1 (May 31, 2022). Singh v. U.S.P.S. reverses former MSPB decisions regarding whom the MSPB will consider as a comparator employee under Douglas factor 6. This change impacts the whistleblower reprisal analysis under Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), which reviews the following elements: (1) whether the agency had legitimate reasons for the personnel action; (2) the existence and strength of any motive to retaliate on the part of the agency officials who were involved in the decision to take the personnel action; and (3) any evidence that the agency takes similar personnel actions against employees who are not whistleblowers but who are otherwise similarly situated.
The third prong, specifically, requires the court to review similarly situated employees in a comparator analysis. When the MSPB was created in 1978, the Board required a high degree of similarity between infractions, and typically, comparator employees had to work in the same unit and report to the same supervisors. Anything outside of this scope of employment was too dissimilar for the agency to reasonably consider. This was a critical line of defense for agency lawyers trying to save the reputations of executives alleged to have been retaliators.
However, after a series of cases in 2010—Woebcke v. DHS, 2010 MSPB 85; Lewis v. VA, 2010 MSPB 98; and Villada v. USPS, 2010 MSPB 232—the Board changed the comparator framework, expanding it to include almost anyone within the agency who committed misconduct that was broadly comparable to the appellant’s misconduct. This came at the end of a long period of whistleblower reform which even touched upon the Intelligence Community, which President Barak Obama subjected to the discipline of whistleblower protection after 2012.
Woebcke and its siblings could have been game changers. But agency attorneys found the work more than they could handle. The burden in the analysis rested with the agency, given the manner in which evidence production is allocated under the various statutory rubrics. Identifying which employees had been disciplined for misconduct and then applying a uniform penalty to all employees who engaged in somewhat similar behavior, regardless of their location, their job duties, or their supervisors was taxing on federal agencies with internally siloed personnel systems. A specific category of cases—employees taking actions but receiving no disciplinary action at all—left a large part of the data set unmapped. On the Federal employment law front, the arguments for consistency in punishments became more important than other Douglas factors, becoming somewhat of the sole outcome determining factor.
So instead of the Office of Personnel Management (“OPM”) stepping up and crafting an information technology (IT) solution that would allow agency attorneys to plead the federal government’s burden of proof for tests like Carr’s third prong of the test determining reprisal’s fourth element, other institutions have come to the agency attorney’s aid.
Presently, under Singh v. U.S.P.S., to prove the punishments are unfair, an appellant must demonstrate that the charges and the circumstances surrounding the charged behavior are remarkably comparable to those of a similarly situated employee. The universe into which the similarly situated employee is drawn has been restricted to those employees within the sphere of the supervisor issuing the adverse action. In issuing Singh v. U.S.P.S., the MSPB brings back the knowledge requirement it formerly deviated from in 2010.
An appellant can make a preliminary showing that the charges and the circumstances leading up to the charged behavior are substantially similar by providing evidence that the proffered comparator was in the same work unit as them, had the same supervisor, and was subject to the same standards governing discipline. These are, however, elements to consider rather than hard-and-fast qualifiers. An employee from another work unit or supervisory chain may be used as a comparator for punishment purposes in exceptional situations, but only if there is an unusually close link between the type of wrongdoing and the individual in question.
This does not mean that agencies are bound to what officials have decided upon for these misconducts in the past. The Board has stated that “the nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibility are the most important factors in assessing the reasonableness of a penalty.” E.g., Batara v. Department of the Navy, 123 M.S.P.R. 278 (2016); Spencer v. U.S. Postal Service, 112 M.S.P.R. 132 (2009).
Further, they have also clarified that an agency may apply tougher sanctions going forward than it did previously, provided that it informs its staff of the policy change. In these situations, rather than differences in the employees or the offenses, the main difference between the new offenders and the comparative cases would be a change in agency policy. If the agency determines that its actions are justified by the particulars of each case and officials are prepared to explain why new scenarios have different circumstances, policy adjustments may not even be necessary.
Regardless, agency communications are critical to managing disparities in penalties, whether it is introducing new policies to the workforce or explaining why specific circumstances differ.
Dan Meyer, Managing Partner of Tully Rinckey PLLC’s Washington, D.C. office, has dedicated more than 25 years of service to the field of Federal Employment and National Security law as both a practicing attorney and federal investigator and senior executive. Before the Merit Systems Protection Board, he has successfully represented special agents and law enforcement personnel.
Jennifer Wlodarczyk is an attorney with the Washington, D.C. office of Tully Rinckey, PLLC. Jennifer focuses her practice within the federal employment law section.
Dan and Jennifer can be reached at email@example.com or at (888)-529-4543.