Background
Richard Walter Coleman, Jr., a Supervisory Explosives Specialist, was informed in January two thousand fifteen that his hazardous duty pay supplement was erroneously granted and would be discontinued. Beginning in February two thousand fifteen, Coleman made eleven protected disclosures challenging this decision and filed a complaint with the Office of Special Counsel in October two thousand seventeen. After the Office of Special Counsel declined to seek corrective action, Coleman filed an individual right of action appeal with the Merit Systems Protection Board in December two thousand twenty-one, alleging reprisal for his disclosures.
The court’s reasoning
The court reviewed the Board’s decision de novo regarding jurisdiction. Under the Whistleblower Protection Enhancement Act, an appellant must make non-frivolous allegations that a protected disclosure was a contributing factor in a personnel action. The court found that all of Coleman’s protected disclosures occurred after the January two thousand fifteen decision to discontinue his hazardous duty pay. Consequently, the disclosures could not have been a contributing factor to that discrete personnel action. The court also rejected the argument that the continued denial of pay constituted a continuing reprisal, citing precedent that subsequent consequences of a discrete act do not transform it into a continuing violation.
What it means going forward
This decision reinforces that whistleblowers must establish a temporal link between their protected disclosures and the adverse personnel action to maintain jurisdiction in the Merit Systems Protection Board. It clarifies that the ongoing effects of a single discrete adverse action do not create a new cause of action for each subsequent paycheck or period of denial.