Whistle-blowers: Beware of ruling in recent case

A court decision last November strikes a serious blow at the protection afforded federal employees by the Whistleblower Protection Act (WPA). The case involved Mel Gores director of the Department of Veterans Affairs' Medical Center in Bath N.Y. Gores supervised David Goblet the chief personnel off

A court decision last November strikes a serious blow at the protection afforded federal employees by the Whistleblower Protection Act (WPA).

The case involved Mel Gores director of the Department of Veterans Affairs' Medical Center in Bath N.Y. Gores supervised David Goblet the chief personnel officer at the Bath facility.

Gores rated Goblet's job performance as "minimally successful " following a "fully successful" rating the previous year. He transferred Goblet to a detail in the library because of an alleged blackmail attempt by Goblet. Goblet cried "foul" and appealed to VA authorities that he was the victim of retaliation for whistle-blowing.

The WPA prohibits an official from taking or failing to take a personnel action because of any disclosure of information by an employee that the employee reasonably believes proves a violation of any law rule or regulation gross mismanagement a gr oss waste of funds an abuse of authority or a substantial and specific danger to public health or safety.

Goblet had sent an anonymous letter to his congressman asserting that certain improper practices had occurred in the personnel office in the past. He contended that Gores somehow got wind of the letter. The VA investigated the accusations and substantiated several of the violations referenced in Goblet's letter.

The VA determined that Gores' actions were in retaliation for the disclosures that Goblet had made and it suspended Gores for 30 days. Gores appealed the VA's determination to the Merit Systems Protection Board. In the initial decision the MSPB administrative law judge reversed the VA's suspension. The full board however granted the VA's petition for review of the initial decision and affirmed the decision to suspend Gores but reduced the punishment to a 15-day suspension. Gores took the case to the U.S. Court of Appeals which said the government must prove two things to establish a violation of the WPA: (1) that the acting official had authority to take recommend or approve a personnel action and (2) that the aggrieved employee made a disclosure that was protected under the WPA.

As to the second requirement the court said the whistle-blower must reasonably believe that his disclosure reveals legal violations gross mismanagement or substantial and specific danger to public health or safety. This is a new twist. The court was saying that it does not matter what the whistle-blower does it is what he believes that counts.

According to Gores there was no evidence that Goblet reasonably believed his disclosures were protected by the WPA. Gores argued that the VA's failure to produce Goblet for deposition precludes any determination of his reasonable belief. Moreover Gores contended that "the trivial nature of the violations involved and Goblet's authority to remedy these problems without disclosure to his congressman" undermine the reasonableness of such a "belief."

The V A argued that the reasonableness of Goblet's belief could not be challenged because many of the disclosures made by Goblet were sustained after investigation.

The court sided with Gores. It ruled that the VA had failed to demonstrate what Goblet believed. Because of his position within the VA the court ruled that Goblet was in a position to remedy the alleged problems in his disclosures. Goblet did not need to disclose the problems because he could have corrected the problems internally.

The court did not buy the VA's argument that substantiation of some of Goblet's allegations proved that his disclosures were protected under the WPA. Although the court said substantiation that a rule has been broken "is strong evidence of a protected disclosure " it rejected the idea that it proves the whistle-blower's belief. Instead the court ruled that "substantial evidence does not support the conclusion that Goblet reasonably believed that he was disclosing violations of law under the WPA notwithstanding the subsequent substantiation of these allegations."

I find the decision troubling. In my opinion the WPA has nothing to do with what a person believes. How are you ever going to figure out what is in someone's head? Besides why should you have to? Suppose you blow the whistle on your boss for taking bribes and he retaliates. Why should your right to protection under the WPA depend on what you believe?

This decision is a travesty of justice. If it is not challenged all whistle-blowers had better be careful in the future. Visit a shrink before you blow the whistle to ensure you have documentation of your state of mind at the time.

-- Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.