Finding Novel Methods for Federal Employees Fighting Retaliation

The system of anti-retaliation protection for federal employees who report misconduct or speak out about their agency’s conduct is notoriously weak. Often, whistleblowers face significant risks and challenges, including potential job loss, social isolation, and legal battles.

Under the Whistleblower Protection Act (WPA) and other laws, federal employees seeking relief for an adverse action taken against them for whistleblowing must rely on the Merit Systems Protection Board (MSPB). The MSPB is a quasi-judicial entity that plays a crucial role in the process, but it is plagued by delays and threatened by politicization.

However, there are several potentially effective but underutilized legal precedents that empower federal employees facing retaliation to obtain relief in federal court and not rely solely on the WPA. These precedents, established by the U.S. courts in the District of Columbia, offer novel ways to have cases heard in federal court or otherwise bolster their retaliation complaints. Understanding and leveraging these rights can be a powerful tool in the fight against retaliation.

KKC has proudly represented federal employees in several groundbreaking cases, helping them leverage these alternative legal avenues to fight retaliation.

Sanjour v EPA: First Amendment Rights for Federal Employees

In Sanjour v. EPA (1995), our firm represented William Sanjour, a federal employee at the GS-15 level who challenged rules restricting EPA workers’ rights to speak to environmental community groups. This landmark case upheld the First Amendment rights of federal employees to criticize the government in activities outside their employment.

The precedent established allows federal employees to seek pre-enforcement injunctive relief if a rule or regulation has an improper chilling effect on First Amendment protected speech. This case created a strong shield for federal employees to make First Amendment challenges to agency regulations that stifle whistleblowing.

“The regulations challenged here throttle a great deal of speech in the name of curbing government employees’ improper enrichment from their public office. Upon careful review, however, we do not think that the government has carried its burden to demonstrate that the regulations advance that interest in a manner justifying the significant burden imposed on First Amendment rights.” – S. Court of Appeals for the District of Columbia Circuit

Bonds v Leavitt and Ikossi v. Department of Navy:

Mixed Cases Combining Title VII Discrimination with Whistleblower Retaliation

KKC also played a key role in establishing a precedent for “mixed cases” involving retaliation and Title VII discrimination. These cases recognize the joint nature of these claims, particularly when an employee is a member of a protected class. A ‘mixed case’ is a legal strategy that combines claims of retaliation for whistleblowing with claims of discrimination under Title VII of the Civil Rights Act. These cases often involve complex fact-based scenarios where it is difficult to determine whether the adverse employment action was motivated by discrimination, protected whistleblowing activity, or both.

In Bonds v. Leavitt, KKC represented Dr. Duane Bonds, a top researcher at the National Institutes of Health (NIH) on sickle cell disease. Dr. Bonds blew the whistle on the unauthorized cloning of participants’ cells. Subsequently, she faced a series of adverse actions, including sex discrimination, harassment in the workplace, and eventual termination. Her case became a crucial battleground in defining the rights of federal employees facing both discrimination and retaliation for whistleblowing.

The Fourth Circuit’s 2011 ruling in Bonds v. Leavitt was a landmark victory. The court determined that Dr. Bonds’ complaint, encompassing both retaliation for whistleblowing and sex discrimination, constituted a “mixed case” and, under the Civil Service Reform Act, could be pursued in federal court. This meant Dr. Bonds was not required to exhaust his administrative remedies solely through the MSPB, a process often criticized for its delays and potential for bias. This decision was critical in establishing a pathway for federal employees to have their “mixed cases” heard in a federal court of law.

In another precedent-setting case, Ikossi v. Department of Navy, KKC represented a female whistleblower facing retaliation after reporting gender discrimination. The rulings in these cases established that federal employees facing discrimination and retaliation may combine their complaints and pursue their case in federal court if the MSPB delays a ruling.

Our work in these cases significantly expanded the procedural and substantive rights of federal employees facing retaliation, particularly those from protected classes, by allowing them to bypass the often-protracted MSPB process and seek redress in federal court.

Our firm’s commitment to protecting whistleblowers extends to utilizing the Privacy Act. While not a traditional whistleblower statute, the Privacy Act offers crucial protection against the improper disclosure of personal information.

In a case like Tripp v. Department of Defense, the Privacy Act allowed an employee to challenge the illegal release of confidential information, offering an alternative avenue for relief outside the WPA’s limitations.

We recognize the importance of the Privacy Act in protecting whistleblowers from retaliatory disclosures and stand ready to assist clients, pro bono, in leveraging its provisions.

Overview of Laws Used

The three legal avenues highlighted in the text and utilized by our firm pro bono on behalf of whistleblowers are:

• First Amendment Rights: This protects federal employees’ right to speak out on matters of public concern, even criticizing the government, outside of their official duties. The Sanjour v. EPA case established that employees, particularly at the GS-15 level and below, can seek pre-enforcement injunctive relief in federal court if a government rule or regulation chills their First Amendment rights.
• Title VII of the Civil Rights Act (in conjunction with the Civil Service Reform Act): This prohibits discrimination based on race, religion, sex, national origin, and other protected categories. When retaliation for whistleblowing is intertwined with discrimination, it creates a “mixed case.” Bonds v. Leavitt and Ikossi v. Department of Navy established that these “mixed cases” can be pursued in federal court if the MSPB fails to issue a final decision within 120 days. This allows employees to bypass the MSPB process and have their discrimination and retaliation claims heard in a federal court.
• Privacy Act: This protects individuals from the unauthorized disclosure of personal information held by the government. While not strictly a whistleblower protection law, it can be a powerful tool when the government retaliates against whistleblowers by leaking or improperly disclosing their personal information. As in the Tripp case, it allows individuals to sue in federal court for damages and other relief.

If you are a federal employee who has been retaliated against and would like to discuss your legal options, contact KKC for a free case review. Seeking legal counsel as early as possible is not just essential for protecting your rights, but it can also be a proactive step toward maximizing your chances of success.

Government Webpages:

• Overview Of Federal Sector EEO Complaint Process
• S. Office of Special Counsel
• S. Merit Systems Protection Board
• Privacy Act of 1974