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Whistle-Blowers must first pursue claims administratively

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in Discrimination and Harassment,Employment Law,Human Resources

Federal employees who report alleged wrongdoing by the agencies they work for are entitled to special protections for their whistle-blowing actions. The federal Whistleblower Protection Act (WPA) says agencies cannot retaliate against employees for making whistle-blowing allegations. But employees also have obligations—if they believe they have suffered retaliation, they must bring an administrative claim before the U.S. Merit Systems Protection Board (MSPB) before filing a lawsuit in federal court.

Recent case: Back in 2000, Dr. Edward Sperber claimed he told his supervisor at a Veterans Affairs (VA) hospital that he suspected the facility had an ongoing narcotics theft problem. The supervisor apparently reported the claim to the VA’s inspector general, but nothing further happened.

Four years later, however, the VA discharged Sperber from his job after he refused to accept a demotion and a transfer. He then filed an internal complaint alleging age discrimination; he did not pursue an internal WPA retaliation claim. Instead, he filed a federal age discrimination lawsuit—later adding on the WPA claim.

The court tossed out the case. It reasoned that the law clearly states that as soon as Sperber suspected he had been retaliated against, he should have done two things: (1) filed the internal age discrimination complaint within 45 days (which he did) and (2) pursued the WPA claim with the MSPB (which he did not do). (Sperber, MD v. Nicholson, et al., No. 0-05-363, SD OH, 2007)

Final note: This case is very good news for public-sector employers. Often, an employee doesn’t realize he may have a possible WPA claim until his attorney plants the idea in his head. By then, it may be too late to pursue the matter before the MSPB. (In this case, that appears to be what happened, given the four-year lag between the alleged whistle-blowing and the alleged punishment and retaliation.)

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