Q. Ever since my closest friend in the office blew the whistle, my supervisor has been coming down hard on me. Am I protected against retaliation for someone else's whistleblowing activity?
Posted On: May 03, 2016
A. Federal employees would be far less inclined to blow the whistle if an agency could get away with retaliating against them by punishing someone close to them. That is why "[a]n individual who is the victim of reprisal because of protected disclosures made by a third party, e.g., a friend or relative, is protected by the Whistleblower Protection Act of 1989 (WPA)," the Merit Systems Protection Board said in Richard Di Pompo v. Department of Veterans Affairs (1994).
Di Pompo involved an appellant who claimed the agency falsely denied having any vacant orthotist/prosthetist positions for which he was qualified as retaliation for his brother's prior Equal Employment Opportunity (EEO) activity and the whistleblowing activities of his father. The father had sent letters to the U.S. Attorney General's Office and Office of the Inspector General claiming several agency officials had engaged in wrongdoing. The Board remanded this case so that an MSPB judge could determine whether the appellant's father was an actual whistleblower.
As Di Pompo illustrated, it is crucial to show the third party made a protected disclosure under the WPA. For a disclosure to be protected, it must be made to an appropriate party, including the Office of Special Counsel or an inspector general's office or, under the new Whistleblower Protection Enhancement Act of 2012, a supervisor or any other who may have participated in the wrongdoing being disclosed. Further, the disclosure must concern a reasonably believed or actual violation of law, rule or regulation; a gross mismanagement or waste of funds; abuse of authority; or a "substantial and specific danger to public health or safety."
In Kevin R. Downing v. Department of Labor (2004), the appellant claimed the agency terminated his appointment in an economist position in retaliation for his whistleblowing activities. These activities included, among other things, his service as a liaison to employees in a New Jersey office who similarly sent letters to members of Congress and the staffs requesting they intervene in the planned closing of a New York City office. The Board pointed out that the appellant provided "no specifics on this point that would allow us to conclude that the group of employees was itself made up of whistleblowers," making the Board conclude that he did not deserve the "associational" whistleblower protection described in Di Pompo.
Federal employees who believe they have been subjected to reprisal for their whistleblowing activities or those of someone with whom they are associated should consult with an experienced federal employment law attorney.