Legal Briefs: Suicidal whistleblowing

Every Friday on GovExec.com, Legal Briefs reviews several cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.

Richard Herman, a psychologist at a federal prison camp, filed a complaint with the Merit Systems Protection Board when he was reassigned, alleging that the action was taken in retaliation for whistleblowing. Herman had accused his agency of not following procedures to protect suicidal inmates. He also alleged that the confidentiality of Employee Assistance Program counseling records may have been violated when his department's telephone log was copied during an investigation into his conduct by prison officials.

MSPB and, on appeal, a federal circuit court ruled that the whistleblower disclosures Herman reported were not protected. The "health and public safety" criteria for whistleblowing says disclosures must include "substantial and specific dangers." But the possibility of any harm as a result of the agency's suicide watch procedures was not enough to warrant whistleblowing because it was too speculative, the court ruled. Plus, the telephone log is not the kind of counseling information that is required to be kept confidential, the court said. So Herman's complaint was dismissed.

Lesson: Don't assume that just any kind of whistleblowing is protected.

Richard Herman v. Department of Justice, Merit Systems Protection Board (99-3117), October 25, 1999.

Firing Freeze

The Office of Special Counsel has at least temporarily fended off the firing of Roger L. Hoyt, a computer specialist at the Department of Veterans Affairs Medical Center in Alexandria, La.

The Merit Systems Protection Board has granted Hoyt a reprieve while the OSC investigates his firing. According to the OSC, Hoyt's dismissal is suspicious because it came directly after he filed a union grievance against the agency.

The agency cited 11 incidents as the basis for Hoyt's firing, five of which stem from grievances, OSC pointed out. Also, the VA hospital fired Hoyt seven weeks after the primary alleged misconduct, but only two weeks after Hoyt filed a second grievance with the union.

The timeline of events tipped OSC off that illegal personnel practices might be taking place. Hoyt's stay of termination has been granted for 45 days, after which OSC may petition the MSPB for formal corrective action.

Lesson: If you fire an employee after he or she files a grievance, expect your actions to be scrutinized.

Roger L. Hoyt v. Dept. of Veterans Affairs, U.S. Office of Special Counsel, November 11, 1999.

Discrimination U-Turn

Mary Taylor alleged she was discriminated against on the basis of her sex and age when she was fired instead of reappointed to a third term as a temporary letter carrier. Equal Employment Opportunity Commission officials looked into the case, but the only misconduct they found was on Taylor's part.

Taylor's customer services manager pointed out 10 instances of unsatisfactory performance, including misdelivery of mail, failing to complete assigned duties, leaving the driver door open while making a U-turn, speeding, and leaving a vehicle containing mail unlocked and unattended.

Taylor didn't deny the charges, so the EEOC found no evidence that discrimination occurred.

Lesson: Sometimes, poor performance is just poor performance.

Mary R. Taylor v. USPS, Equal Employment Opportunity Commission (01973851), September 21, 1999.