Background
Jennifer Carroll-Harris, a Navy veteran employed by the Department of Veterans Affairs, alleged she was fired and denied promotions in retaliation for protected whistleblowing. She filed complaints with the Office of Special Counsel and the Merit Systems Protection Board regarding disclosures made between two thousand and four and two thousand and five, as well as complaints filed in two thousand and twelve and two thousand and fourteen. An administrative judge and the Board denied her appeal, finding her later complaints were not protected disclosures and that her earlier disclosures were not a contributing factor to her adverse actions.
The court’s reasoning
The court reviewed the Board’s decision under the arbitrary and capricious standard. It held that the petitioner’s two thousand and twelve Department of Labor complaint and two thousand and fourteen Equal Employment Opportunity complaint were not protected disclosures under Section two thousand three hundred two, subsection B, paragraph eight of Title five of the United States Code because they were exercises of grievance rights rather than disclosures of information. The court further found substantial evidence supported the Board’s conclusion that the petitioner’s two thousand and four to two thousand and five disclosures were not a contributing factor in her two thousand and twelve nonselection or two thousand and fifteen removal. This was based on findings that the officials involved did not know of the disclosures and that the agency had strong, non-retaliatory reasons for its actions.
What it means going forward
Federal employees seeking whistleblower relief must distinguish between protected disclosures of information and protected exercises of grievance rights. Claims based solely on retaliation for filing complaints or grievances may not be actionable under the individual right of action to the Merit Systems Protection Board.