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Appeals Board Rules That Feds Disclosing Discrimination Will Get No Whistleblower Protections

Those employees must pursue a different path, though it is one that presents unique difficulties.

Federal employees making allegations of discrimination by their agency, whether against themselves or others, are not entitled to whistleblower protections and cannot seek remedies through the same paths as others who shed a light on wrongdoing, an appeals board has ruled. 

The Merit Systems Protection Board, recently reconstituted after more than five years without a quorum on its central panel, overruled some of its own precedent in the decision, with its new members arguing its predecessors had erred in broadening the agency’s purview to include cases involving discrimination. The board is still working its way through an unprecedented backlog and prioritizing cases of significance. 

John Stuart Edwards, a deputy director at the Labor Department, "disclosed and protested" to his supervisors that Black employees were being unfairly passed over for certain vacancies because of their race and filed complaints with the agency's Equal Employment Opportunity office. A few months later, Edwards was reassigned to a non-supervisory position at the same grade and the agency posted his former position. 

Edwards filed a complaint with the Office of Special Counsel, alleging reprisal for speaking out on the alleged discrimination, and then appealed to the MSPB. An administrative judge said Edwards did not have grounds before the independent agency, which he then appealed to the central board. The board agreed with the judge, overturning some of its own precedent in deciding that Edwards' claim was based in allegations of discrimination and therefore he can only challenge the issue before the Equal Employment Opportunity Commission. 

“While the appellant appears to have been admirably motivated in seeking to remedy perceived discrimination in his agency, we find that he failed to meet his jurisdictional burden, and that the proper forum for his allegation of retaliation for filing an EEO complaint is with the EEOC,” the board said. 

Edwards was not entitled to whistleblower protections, they wrote, despite his argument that he was appealing potential reprisal against his disclosure and not the discrimination itself. While the board made the exact opposite finding in a 2001 decision in which an employee appealed an adverse action after notifying his agency was withholding opportunities from Black staffers, the board said that decision was erroneous and ignored its prior precedent. In a 2007 case, the board ruled that an employee filing an EEO complaint on another person's behalf was in fact a whistleblower. The current board said it could not reconcile those decisions with prior rulings and overruled them. 

Any matters related to sex, race, color religion or national origin are excluded from whistleblower protections, the board said. It added its new precedent reestablishes one previously held by the board and various federal courts. The claims fall squarely under Title Seven of the Civil Rights Act and therefore, going forward, must be heard before EEOC. The opposite is also true, the board said, meaning proper whistleblowers cannot bring their claims before the commission. 

“It is clear that separate remedies exist for redress of claims of discrimination and claims of reprisal for whistleblowing, and that claims must be brought under the appropriate statutory scheme,” the board said. “This further supports the conclusion that allegations of discrimination may not be brought under the whistleblower protection statutes.”

While Congress intended for whistleblower protection statutes to be broad and has expanded them in recent years, the board said, "the coverage is not boundless." The new MSPB members said they "strongly condemn" managers discriminating against employees and those workers are not "without recourse." 

Peter Broida, Edwards’ attorney, said that not all recourse is equivalent. EEO cases take “years and years” to play out, he said, while whistleblowers can receive at least an initial decision from an MSPB administrative judge fairly quickly. Additionally, he said, employees typically face a higher burden of proof before the EEOC, whereas the burden shifts to the agency in MSPB cases in which the appellant demonstrates an agency was aware of a protected disclosure. 

The board is trying to make a “clear delineation” between whistleblower and EEO allegations and “they’re clearly having a hard time doing it,” Broida said. “It does create uncertainty for employees who feel they are victims of reprisal. They’re not all lawyers.” 

The board, currently made up of just Tristan Leavitt and Raymond Limon after they were confirmed earlier this year, previously took a more generous approach with whistleblowers. In one of its first decisions after the Senate reinstated its quorum, the board signaled it would take a "broader view of retaliatory motive" in whistleblower cases. Even managers not directly implicated in a whistleblower's disclosures could be guilty of reprisal out of concern for the well-being of their agency, the board said.