Federal officials who make allegations of discrimination by their agency, whether against themselves or others, have no right to defend those who report irregularities and cannot seek redress in the same ways as others who shed light on illegal actions, decided the Board of Appeal.

Council for the Protection of Merit Systems, recently restored after more than five years without a quorum in its central committee, it repealed part of its own precedent in the decision, with new members claiming that its predecessors had made a mistake by expanding the agency’s powers to include cases involving discrimination. The board is still making its way through unprecedented backlogs and prioritizing important cases.

John Edwards, deputy director of the labor department, “revealed and protested” to his superiors that black employees had been unfairly overlooked for certain vacancies because of their competition and complained to the agency’s equal employment service. A few months later, Edwards was reassigned to an unsupervised position in the same class, and the agency published his previous position.

Edwards filed a complaint with the Office of the Special Prosecutor, claiming that he had remunerated himself for speaking out on alleged discrimination, and then appealed to the MSPB. An administrative judge said Edwards had no grounds before the independent agency, which he then appealed to the central council. The board agreed with the judge, reversing part of its own precedent, deciding that Edwards’ allegation was based on allegations of discrimination and he could therefore only challenge the issue before the Equal Employment Opportunity Commission.

“While the complainant appears to have been admirably motivated to seek to eliminate the alleged discrimination in his agency, we find that he has not complied with his jurisdiction and that the EEOC is the appropriate forum for his claim for revenge for the EEE complaint.” said the board.

They wrote that Edwards had no right to protect whistleblowers, despite his argument that he was appealing against potential repression against his disclosure, not discrimination itself. While the board made the exact opposite conclusion in a 2001 decision in which an employee appealed against an unfavorable action after notifying his agency that he was holding back the capabilities of black employees, the board said the decision was wrong and ignored the previous precedent. In the case of 2007, the board ruled that an employee who lodged an EEE complaint on behalf of another person was in fact a whistleblower. This Council stated that it could not reconcile these decisions with previous decisions and repealed them.

All issues related to gender, race, color religion or national origin are excluded from the protection of whistleblowers, the board said. He added that his new precedent restores one previously held by the board and various federal courts. The claims fall entirely under Title Seven of the Civil Rights Act and must therefore be heard before the EEOC in the future. The opposite is also true, the board said, which means that the right whistleblowers cannot make demands to the commission.

“It is clear that there are separate remedies for redressing discrimination and repression claims to report irregularities, and that claims must be brought under the relevant legal scheme,” the board said. “This further supports the conclusion that allegations of discrimination cannot be made under the laws on the protection of whistleblowers.”

Although Congress intends to broaden and expand whistleblower protection laws in recent years, the board said “the scope is not unlimited.” The new members of the MSPB said they “strongly condemn” managers who discriminate against employees and that these workers are not “without protection”.

Peter Broyda, Edwards’ lawyer, said not all remedies were equivalent. EEE cases take “years and years” to develop, he said, while whistleblowers can get at least an initial decision from an MSPB administrative judge fairly quickly. In addition, he said, staff usually face a higher burden of proof before the EEOC, while the burden is shifted to the agency in MSPB cases where the complainant proves that the agency was aware of secure disclosure.

The board is trying to make a “clear distinction” between the allegations of whistleblowers and EEE, and “they are obviously having difficulty doing so,” Broida said. “This really creates uncertainty for employees who think they are victims of repression. Not everyone is a lawyer. ”

The board, which currently consists of only Tristan Lewitt and Raymond Lehman, after being confirmed earlier this year, has previously taken a more generous approach to whistleblowers. In one of its first decisions, after the Senate restored its quorum, the board signaled that it would take a “broader view of the motives for revenge” in the case of whistleblowers. Even managers who are not directly involved in the disclosure of whistleblowers could be blamed for repression due to concerns about the welfare of their agency, the board said.



https://www.govexec.com/workforce/2022/05/appeals-board-rules-feds-disclosing-discrimination-no-whistleblower-protections/366818/

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