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NEWS AND CASE ALERT
March 9th, 2023 | Issue #15-02
TABLE OF CONTENTS
MSPB CONTINUES WHISTLEBLOWER CONSTRAINTS
We offer legal reference books and audiovisual training on federal civil service, equal employment, and labor law, for attorneys, unions, arbitrators, managers, and agency personnel offices.
A small business for over 39 years.
Read the full archive of over 100+ News and Case Alerts online at: deweypub.com/email
New Dewey Books In 2023
The MSPB Guide is a complete research tool for Board cases, laws, procedure, and litigation practice and is the seminal text on this complex area of the law. (more details)
Prehearing and post-hearing motions, as well as rules of motion practice are studied in this newly updated practical and helpful guidebook. The authors examine motions presented to the Board and the Commission separately, paying special consideration to how to most effectively use motions for the desired result. (more details)
In two volumes, Updated annually, the FLRA Guide is a complete research tool on unit determinations, negotiability and the collective bargaining process, unfair labor practices, and constraints on arbitration. The Guide includes discussion of cases, laws, and litigation practice before the FLRA and its reviewing courts. (more details)
Updated annually, the EEO Guide, written by Natania Davis with Ernie Hadley, Founding Author, offers the most comprehensive analysis of federal sector EEO decisions, litigation practice, statutes, regulations, policies, guidance, and practical advice available to practitioners. (more details)
MSPB CONTINUES WHISTLEBLOWER CONSTRAINTS
Congress seems to encourage whistleblowing (especially to Congress), but the statutory protections can be attenuated for those whose whistleblowing does not follow conventional complaints about waste, fraud, mismanagement, or threats to public health and safety, or the conventional IG complaint or letter to a congressman.

Consider the appeal of Jessie McCray, an Army HR specialist who filed administrative grievances (an HR employee would not have access to the grievance procedure of a labor contract).

One grievance asserted that McCray’s supervisor discriminated against a coworker with disabilities. Another grievance involved McCray’s concerns about his own performance record and denial of a performance-based award.


A short suspension followed, based McCray’s alleged misuse of agency information concerning other employees in pursuit of his grievance. That led to an IRA appeal.

Did filing a grievance, with consequential reprisal, support an IRA?

The Board considered 5 USC 2302(b)(9):
Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority—

. . .
(9) take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of—
(A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation—
(I) with regard to remedying a violation of paragraph (8); or
(ii) other than with regard to remedying a violation of paragraph (8);
(B) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)(I) or (ii);

© cooperating with or disclosing information to the Inspector General (or any other component responsible for internal investigation or review) of an agency, or the Special Counsel, in accordance with applicable provisions of law; . . .
What the Board did not appear to explain is that an IRA appeal has its genesis in 5 USC 1221:
(a) Subject to the provisions of subsection (b) of this section and subsection 1214(a)(3), an employee, former employee, or applicant for employment may, with respect to any personnel action taken, or proposed to be taken, against such employee, former employee, or applicant for employment, as a result of a prohibited personnel practice described in section 2302(b)(8) or section 2302(b)(9)(A)(I), (B), ©, or (D), seek corrective action from the Merit Systems Protection Board.
Starting with the grievance alleging discrimination against a disabled worker, the Board determined it did not seek to remedy a violation of Section 2302(b)(8), as required by 5 USC 2302(b)(9), to meet the statutory requirement of 5 USC 1221(a). The alleged reprisal was beyond the Board’s IRA jurisdiction based on the Board’s decision in Edwards v. Dept. of Labor, 2022 MSPB ( (2022), to the effect that EEO reprisal allegations must go the EEO route, irrespective of the format of the disclosure, that is, EEO allegations do not constitute whistleblowing under the WPA or WPEA or amendments to those statutes.

Moving along, next considered was whether the grievance(s) fell within another subsection of 5 USC 2302(b)(9):
(B) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)(I) or (ii); . . .
Mr. McCray did not allege he was assisting in the grievance of the coworker who McCray said was subject to discrimination. Nor was McCray’s grievance equated to testimony or other lawful assistance in connection with an appeal, complaint, or grievance right.

And, finally, the grievance process used by Mr. McCray did not constitute cooperation with an agency component responsible for internal investigation of the agency under 5 USC 2302(b)(9)©. The Board’s reasoning, whatever the definition of an internal investigation might be, was that characterizing the grievance as part of an internal investigation would negate the protected nature of only those grievances alleging violations of 5 USC 2302(b) under Section 2302(b)(9)(A).

Back to basics: the question decided in Edwards, on which McCray in part depends—whether or not EEO-related disclosures can qualify for IRA protection, is in the Federal Circuit on appeal. Readers are advised to stay tuned (and buy Dewey books to keep this newsletter in circulation).

McCray v. Dept. of Army, 2023 MSPB 10 (March 7, 2023) (precedential)
New Dewey Books In 2023
This encyclopedic text features summaries of federal sector arbitration awards addressing significant issues and major arbitration principles from 1999 through 2022. Awards are arranged by topic. Principles includes a table cross-referencing arbitrators to the awards they have issued. (more details)
Updated annually, this encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2023 into concise, usable summaries. Cases are arranged by subject matter areas and further categorized alphabetically. The MSPB Reference Materials free download and an index and table of cases rounds out this research tool. (more details)
Designed for all who work on conduct and performance issues and those who litigate cases, this book serves as a quick reference to federal employment litigation questions. Answers are provided in an easy to read and thorough manner. (more details)
An authoritative examination of the FMLA, this book includes citations and analysis of governing statutes, regulations and case law. (more details)
The Dewey Publications Podcast
Monthly Peter Broida will discuss new decisions from the MSPB, FLRA, their reviewing courts, and occasionally EEOC.

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