Federal Employees’ Remedies for Reprisal

Do federal employees have any recourse for retaliation for filing a grievance, appeal or any claim, e.g., a claim for workers’ compensation, a travel reimbursement claim, or prior appeal to the Merit Systems Protection Board?

It is a prohibited personnel practice for an Agency to:

(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);
(C) cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law; or
(D) for refusing to obey an order that would require the individual to violate a law.

Paragraph 8 protects whistleblowers who disclose a violation of a law, rule, or regulation or gross mismanagement, gross waste of funds, an abuse of authority or a substantial and specific danger to public health or safety.

Whistleblowers invoking rights under 5 U.S.C. §2302(b)(8), employees who appeal, complain or grieve reprisal for whistleblowing, and employees who suffer retaliation for activity protected by paragraphs 9 (B), ( C ) or ( D ) have a right to file an appeal with the Merit Systems Protection Board after exhausting administrative remedies with the Office of Special Counsel (OSC). If OSC closes the investigation, the employee may file with the MSPB within 60 days of the close out letter from OSC or after the lapse of 120 days of filing the complaint if OSC takes no action. 5 C.F.R. § 1209.2(a).

Employees who file an appeal, complaint or grievance may complain to the OSC about retaliation. The OSC may investigate and seek corrective action to rectify the effect of retaliation. If the OSC does not find merit to the complaint of a (b)(9)(A)(ii) violation, the individual employee has no individual remedy, unless the Agency subjects the employee to an adverse action otherwise appealable to the MSPB. Appealable adverse actions consist of removal, suspension for more than 14 days, a reduction in pay or grade, an improper reduction in force, a denial of within-grade salary increases, or a furlough of a maximum of 30 days. An employee may raise any prohibited personnel practice, including a violation of (b)(9)(A)(ii), as an affirmative defense in an appeal of an adverse action to the MSPB. The MSPB does not have jurisdiction over appeals of less drastic disciplinary action, denials of appointments, promotions, details, transfers, reassignments, performance evaluations, pay, benefits, awards, training, ordering psychiatric testing, harassment, or any other change in duties, responsibilities or working conditions that do not rise to the level of an adverse action.

Employees experiencing retaliation for filing an appeal, compliant or grievance, e.g., a workers’ compensation claim or a MSPB appeal, have limited independent recourse. However, if the employee can prove that testimony, assisting employees or making a protected disclosure triggered the retaliation, the employee may have an individual right of action.

The employee subject to an otherwise appealable action must elect between remedies of; request for corrective action or a direct appeal of an adverse action. 5 C.F.R. §1209.2(b)(2). If the prohibited personnel practice violates a collective bargaining agreement, employees covered by the bargaining agreement also have the option to file a union grievance.

Bargaining unit employees must elect among the three possible options: 1) appeal to the MSPB under 5 U.S.C. §7701, 2) exercise the employee’s individual right of action to seek corrective action at the MSPB or 3) file a grievance under 5 U.S.C. §7121(d). Legal counsel familiar with the laws applicable to federal employment can help an employee to decide among the options.