Robert MacLean says Neffenger broke law in assigning him to empty office.
Transportation Security Administration whistleblower Robert MacLean—who has his name on a Supreme Court case—has accused his agency head of breaking the law while reinstating him to gainful agency employment.
MacLean, a civil aviation specialist whom TSA fired in 2006 after he spoke to TV reporters about a decision to reduce air marshals on flights—revived his case in September after months of dissatisfaction with his work assignments. He is working through Congress and the Merit Systems Protection Board to accuse TSA Administrator Peter Neffenger of retaliation and damage to his status as a future witness.
TSA rejected his characterizations.
After MacLean’s whistleblower status was validated by the January 2015 Supreme Court ruling, he won reinstatement and back pay and spent much of 2016 on overseas flights as an undercover marshal. But as MacLean said in a declaration in September to the MSPB, his notoriety made him uncomfortable working undercover, so he asked to be reassigned.
He ended up stateside in “an empty room doing nothing for four months,” at a building for TSA’s Visible Intermodal Prevention and Response work, which involves armed TSA teams patrolling airports and train stations. “Although I would have welcomed any opportunity to get out of the building,” MacLean said in his declaration claiming retaliation, "the VIPR team members did not even ask me to wash or gas their vehicles. I felt like a firehouse Dalmatian.”
In comments to Government Executive, MacLean said he had initially been given an equally do-nothing, low-level menial job outside a men's bathroom. So after feeling trapped in the VIPR, “My supervisor sent me a text message specifically stating TSA Headquarters was criminal in making me watch paint dry alone in his building for four months: 'I read 18USC1513(e). That fits.' Five days later he and another supervisor marched with me into our most senior field office manager's office and persuaded him to immediately deploy me on an active Visible Intermodal Prevention and Response team."
Though the new assignment MacLean ended up getting is now satisfactory, he said he was told by an attorney that the earlier assignment meant “TSA was effectively putting me in solitary confinement so that I would later snap. Another air marshal first-line supervisor told me I was the only air marshal he ever heard placed on restricted duty who had a top secret security and medical clearance while allowed to carry a firearm." That’s why MacLean is upset with Neffenger’s comments.
In August, a bipartisan group of six members of the House Oversight and Government Reform Committee, joined by Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, took up MacLean’s case and sent broader policy inquiries to Neffenger. In TSA’s reply, Neffenger questioned MacLean’s credibility, the whistleblower said. MacLean cited a supervisor characterizing his own past performance reviews as “exemplary,” and said Neffenger’s questioning is a violation of law because it damages his future status as a reliable witness with law enforcement.
A TSA spokesman in a statement to Government Executive said, “Mr. MacLean's assertions do not accurately portray his assigned duties. Mr. MacLean is assigned to serve as a Federal Air Marshal on a Visible Intermodal Prevention & Response team. Administrator Neffenger has not retaliated against Mr. MacLean in the assignment of his duties or in any other way.” Due to ongoing litigation and investigations, the spokesman added, the department is unable to comment on further specifics.
CORRECTION: This story was corrected to reflect the chronology of MacLean’s move through three TSA assignments, and to stress that his performance review was called exemplary by a supervisor.
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