Government Executive Magazine - 9/8/00 Legal Briefs: Reassignment retaliation

klunney@govexec.com

Every Friday on GovExec.com, Legal Briefs reviews cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.

Two agents working for the Justice Department's Drug Enforcement Administration (DEA) alleged the agency retaliated against them when it became known that certain employees in one of DEA's foreign offices were misusing government funds.

One complainant, a DEA supervisor, sent the agency's Office of Professional Responsibility (OPR) an anonymous letter alleging that two other supervisors in one of DEA's foreign offices and their agents were misusing government money and were involved in other illegal activities.

An inspection by DEA's Office of International Operations concluded that most office employees had low morale and recommended that the office's supervisors-including the complainant-be relocated to offices in the United States.

Another DEA agent in the same office claimed he was subjected to a hostile work environment because his coworkers believed he was the person who had informed OPR of the nefarious activities. When the employee requested a reassignment, DEA transferred him to an undesirable location, and then refused to cancel the reassignment.

The Office of Special Counsel determined that DEA's reassignments violated the Whistleblower Protection Act. The supervisor relocated involuntarily to the U.S. received a settlement, and in the other case, the DEA revoked the agent's reassignment, restored his leave and paid his legal fees.

The two complainants, who wish to remain anonymous, still work for the DEA.

Office of Special Counsel case, Sept. 6, 2000.

All or Nothing

From 1980 to 1989, Albert Bivings worked for the Interior Department's Fish and Wildlife Service and the Agriculture Department. During that time, he was appointed to a position with the University of Arkansas Cooperative Extension Service, keeping his federal job title and benefits, but not receiving federal pay.

Bivings received a paycheck from the University of Arkansas, and his job with the school was contingent upon his federal appointment. In 1992, the university laid off Bivings because of downsizing, and Bivings subsequently lost his job with the government.

Bivings appealed to the Merit Systems Protection Board, but MSPB dismissed his claim, saying that it could not restore his position with the university. The board also ruled that since Bivings was not receiving pay from his federal employer, it was meaningless to restore him to his original position with the government.

The Federal Circuit Court of Appeals upheld the board's decision, noting that when Bivings was laid off by the university, he was no longer eligible for the federal position, and therefore was not entitled to further federal benefits.

Albert E. Bivings v. U.S. Department of Agriculture, Merit Systems Protection Board (00-3185), Aug. 29, 2000

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