Whistle-blowers not immune from firing

If you think that whistle-blowers cannot be fired, think again. A recent case decided by the U.S. Court of Appeals (Karen L. Kewley v. Department of Health and Human Services, U.S. Court of Appeals for the Federal Circuit, Sept. 3, 1998) points out that federal workers who blow the whistle should make sure there are no outstanding performance issues that their agency can subsequently use against them.

The case involved Karen Kewley, a probationary employee with HHS, who was fired after she made a "protected disclosure" covered by the Whistleblower Protection Act of 1989.

In November 1993, Kewley was appointed to a GS-11 position of clinical psychologist and assigned to the agency's Fort Peck Service Unit, Poplar, Mont. Her job was subject to completion of a one-year probationary period. She was expected to provide psychological evaluations, consultations and therapy for schoolchildren; develop school-based mental health programs; and act as a liaison for outreach services.

In late January 1994, the agency initiated an investigation into Kewley's work performance as a probationary employee. A few days later, on Feb. 4, 1994, Kewley sent a memo to her supervisor, Susan Fifer, director of behavioral health. The message, delivered to Fifer by clinical director Bob Camper and service unit director Kenny Smoker, relayed Kewley's concern that the agency's practice of allowing noncrisis counseling with minors without first obtaining consent from their legal guardians was a violation of specific ethical and legal requirements.

In a staff meeting weeks later, the agency addressed Kewley's memorandum by handing out new informed-consent forms and requiring their use, just as Kewley had suggested.

The ax fell on March 16, 1994. Kewley got a letter signed by Camper on Fifer's behalf which said Kewley's employment was to be terminated in three days because of unsatisfactory performance.

The letter gave four reasons for the termination: Kewley's inability to work effectively in a cross-cultural setting; her failure to establish effective working relationships with community agencies or schools; her inability, in the majority of cases, to establish an ongoing therapeutic relationship with clients; and her continued resistance and refusal to participate in active child abuse cases.

Kewley claimed that she was fired because of her disclosure, and she appealed the action to the Merit Systems Protection Board (MSPB). Arguing that her disclosure was a contributing factor to her removal, she told the board that the removal decision was made within six weeks of her protected disclosure by someone who knew about the disclosure.

The MSPB found that Kewley failed to show that the protected whistle-blowing disclosure was a contributing factor in her removal. The board added that even if the disclosure had been a factor, the agency demonstrated by clear and convincing evidence that it would have removed Kewley anyway.

The board said the agency's timely and favorable response to the disclosure and the lack of evidence of any animosity by Fifer toward Kewley outweighed any indications that the action was related to the disclosure. The MSPB specifically reasoned that "the appellant has failed to show how the agency on the one hand reacted affirmatively to her disclosure but then on the other hand retaliated against her for that disclosure."

No Luck on Appeal

Kewley then took her case to the court of appeals. The court concurred with the MSPB findings and went on to say that if an employee establishes that a protected disclosure was a contributing factor in her removal, the agency must prove that it would have taken the action to remove the employee even in the absence of the protected disclosure. In this case, the agency was able to prove this.

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


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