You Be the Judge: Army nurse practitioner wins hearing in whistleblower appeal

A Department of the Army Nurse Practitioner appeals the denial of her whistleblower protection case.

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This week in “You Be The Judge,” a Department of the Army Nurse Practitioner appeals the denial of her whistleblower protection case—a case in which she argues that whistleblower disclosures led to very real and harsh damage to her career, including the department’s failure to select her for a different, related job. The appellant, whom we will call Jane Doe,* later resigned. Doe says the law clearly supports her claim that her disclosures played a role in the collapse of her career at her Army workplace.

Should Doe’s whistleblower disclosures have resulted in whistleblower protection for her? Or should the department’s argument that her disclosures cannot be seen as relating to her career difficulties prevail? Read the details of the case, and weigh them as you consider the law and the precedents. Then you be the judge.

FACTS: Doe worked as a Nurse Practitioner at the department’s Fort Bragg, N.C., Clark Clinic facility, beginning in 1999. Just over five years later—after a series of career setbacks she says were inflicted on her in retaliation for disclosures of managerial wrongdoing she had made—Doe tendered her resignation.

Perhaps chief among her disclosures came in 2004, when Doe began leveling allegations that clinic management had failed to follow “federal labor laws to ensure just compensation” for clinic employees. The appellant brought the allegations to the attention of the department’s inspector general, the local civilian personnel advisory center, and union officials. In 2006, Doe testified to a medical board about uncompensated work time (including her own) and other alleged improper managerial practices.

Doe later tried to get a different position. In May 2010, she applied for the post of GS-13 Supervisory Nurse Practitioner with a nearby community-based primary care clinic. In August, she was offered the job. Later the offer was withdrawn, however, allegedly because a clinic administrator moved to interfere with Doe’s selection, having “made negative statements about the appellant to the selecting official.” Later still, Doe claims, the same clinic administrator allegedly interfered once again with Doe’s efforts to improve her situation, having “declined to accept [her] resume” as part of Doe’s application to other posts at the Clark Clinic.

On Sept. 10, 2010, Doe took her allegations to the Office of Special Counsel. But OSC closed her file some time later without taking further action. Doe next filed an appeal with the Merit Systems Protection Board. The administrative judge in the case accepted that the administrator’s recommendation against Doe’s selection had played a role in that event. But the AJ found that the appellant “had failed to non-frivolously allege that her purportedly protected activity was a contributing factor to her non-selection.” The AJ insisted that to demonstrate that non-frivolous allegation, Doe must show “that a person with actual knowledge of the appellant’s allegedly protected activity influenced the action-taking official.” The AJ added that the appellant’s disclosures occurred at least four years before the non-selection occurred—and were therefore “outside the time period that a reasonable person could conclude that the disclosure was a contributing factor.”

The AJ noted that Doe’s appeal, to fall under MSPB jurisdiction, must “clearly implicate” that there had been “a violation of law, rule, or regulation, abuse of authority, a gross waste of funds, gross mismanagement, or a substantial and specific danger.” The AJ found, however, that none of those conditions were met in the present case.

Doe appealed again, to the full MSPB.

Did Doe’s whistleblower disclosures meet the legal standard necessary to be protected?

DECISION: The full MSPB reexamined the AJ’s findings. The full panel came to very different conclusions than did the AJ. The board noted that the board has jurisdiction to review Doe’s appeal on whistleblower protection grounds if two conditions are met. First, she must have “engaged in whistleblowing activity by making a protected disclosure under 5 U.S.C. § 2302(b)(8),” a law that specifies the requirements for non-frivolous disclosure. Second, at least one of the disclosures must be “a contributing factor in the agency's decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a).” In short, under the law, if Doe made a non-frivolous disclosure and a non-frivolous case for MSPB jurisdiction, the board must hear the case, the board noted.

Reconsidering the facts and the law in the case, the board supported many of the AJ’s findings—but not the key one of jurisdiction. “The administrative judge … erred in holding that the appellant failed to make a non-frivolous allegation of a protected disclosure,” the board wrote. “We find instead that the appellant’s assertions must be addressed further.” The board also found the AJ failed to consider the possibly improper actions by the department—including the clinic administrator’s failure to review Doe’s resume and a potentially improper reprimand of Doe. The board, therefore, remanded Doe’s case to the AJ for a hearing and re-adjudication.

(MSPB, Docket No. DC-1221-11-0556-W-1, 3/6/12 )

*Names are changed but facts are from an actual case.

 

 

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