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What Does OSC’s Amicus Curiae with the MSPB mean for Federal Employees and Whistleblower Retaliation?

The Office of Special Counsel (OSC) recently filed an amicus curiae brief with the Merit Systems Protection Board (MSPB) in Salazar v. Dept. of Veterans Affairs, a whistleblower retaliation case. This is the second brief OSC has filed in support of Salazar, with the first brief filed in 2016. In this most recent brief to the MSPB, OSC advocates for the removal of barriers that may hinder federal employee’s ability to show a causal connection between an employee’s whistleblower activity and a prohibited personnel action. Specifically, in Salazar, OSC argued that the Administrative Judge erred when ruling that Salazar could not receive lost wages upon his termination because Agency officials were unaware of his protected disclosures. OSC also contended that the Administrative Judge erred in finding that Salazar could not satisfy the constructive knowledge requirements. OSC further argued that knowledge by management was not a requirement to receiving lost wages because the timing of the prohibited personnel action close enough to Salazar’s protected disclosures to satisfy the “contributing factor” element of his whistleblower claim.

OSC serves as an independent federal investigative agency with the primary goal of helping whistleblowers. They strive to protect federal employees from several different prohibited personnel practices that are defined by statute at 5 U.S.C. § 2302. One of these protections surrounds whistleblower retaliation. Federal employees are often thrust into the precarious position of having to report agency wrongdoings with the fear of reprisal for disclosing such actions.

In Salazar v. VA, OSC submitted its investigation to the MSPB in their most recent amicus curiae brief on February 12, 2021. In the brief, OSC challenged whether the MSPB Judge erred “by relying solely on the knowledge-timing test and ignoring other record evidence of causation to assess the contributing factor element in whistleblower retaliation claim[s].”

The knowledge-timing test is a well-known method of showing causation in whistleblower retaliation cases. In this instance, OSC argued that the MSPB did not consider all the recorded evidence, and should not have relied on the Agency’s knowledge, or lack thereof, when before reaching a judgement in regards to whether or not Salazar’s protected activity lead to a prohibited personnel action against him. In the case of Salazar, after filing a whistleblower retaliation claim with the OSC, and OSC requested a stay, which was agreed to by the Department of Veterans’ Affairs, the VA immediately placed a hold on Salazar’s FEHB Withholding. OSC argues that these facts “plainly demonstrates a causal link between Salazar’s OSC complaint and the FEHB Withholding” and that “nothing more is required to shift the burden to the VA.” With this, OSC urges the MSPB to reconsider their original decision.

Diving deeper, the OSC argues that the MSPB’s failure to consider the connection between OSC’s actions, and the subsequent FEHB withholding is critical. They argue that the MSPB needs to consider this evidence, not just the facts of the underlying whistleblowing incident.

One of the biggest indicators that points towards Salazar being able to prove his case as retaliation is the temporal proximity between his reporting of the case versus when he was suspended from work and ultimately fired. While the proximity between the two events are still relatively ambiguous since the agency did not have any direct evidence proving they had knowledge of Salazar’s activity, there was still the possibility of circumstantial evidence proving knowledge of the protected activity. Evidence such as a witness testimony could suffice in proving that the agency was in fact aware of Salazar’s activity.

OSC’s brief on behalf of Salazar’s could be a major win for Federal Employee’s. If Salazar prevails, it could open the door for arguments that timing, with other circumstantial evidence, be deemed sufficient to satisfy the “causation” element of a prima facie case of whistleblower retaliation.

The decision to blow the whistle on agency misconduct can be intimidating. The fear of retaliation, and the subsequent fear of having to prove such retaliation can be daunting. If you are considering disclosing agency misconduct or have received a personnel action as the result of your disclosure, you should contact an experienced federal employment law attorney immediately to discuss your options.

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