Signs of Life at the Office of Special Counsel? The OSC recently obtained a stay from the MSPB in order to keep an employee of the Department of Homeland Security from being fired before his claim of reprisal for whistleblowing could be investigated. Perhaps this is a sign that new Special Counsel, Carolyn Lerner, is serious about trying to protect federal whistleblowers.
On July 6, 2011, the U.S. Office of Special Counsel (OSC) announced that it had successfully received a stay order from the Merit Systems Protection Board (MSPB), protecting a whistleblower from termination while his whistleblower reprisal claim is pending. The whistleblower was an air pilot working for the Department of Homeland Security (DHS). The employee had blown the whistle by reporting a senior manager to his agency’s Office of Inspector General for leaking information regarding an ongoing internal affairs investigation. At the time he blew the whistle, the employee was working under a ‘last chance agreement’ — a settlement agreement which allowed him to continue working despite a prior disciplinary infraction, on condition that he could be summarily removed if he violates any of the terms of the agreement.
After the employee reported this leak to DHS’ OIG, management began retaliating against him, stripping him of his service firearm and sending him for fitness-for-duty examinations. As a result, the employee was effectively grounded for over two years and was unable to perform his pilot duties, even though his ‘last chance agreement’ was supposed to permit him to continue working.
Earler this month, DHS fired the employee, allegedly under the terms of the ‘last chance agreement’. OSC filed a request with the MSPB to stay this firing for 45 days to let OSC investigate. In its motion, OSC raised the novel argument that DHS has breached the ‘last chance agreement’ by retaliating against the employee for blowing the whistle. OSC argued that under that ‘last chance agreement’ DHS was to permit the employee to continue working. By preventing him from performing his pilot duties, DHS was not holding up its end of the deal, and thus ought not to be permitted to remove the employee under an agreement that it had already apparently broken.
The MSPB granted OSC’s request, and issued an order staying the employee’s removal, permitting him to continue working while OSC conducts its investigation.
If you believe that you have been the subject of whistleblower reprisal, contact our firm to inquire about obtaining representation. All employees should be free from a retaliatory work environment.