Following an investigation, the Department of Justice Inspector General concluded that the Chief Deputy United States Marshal (CDUSM) and a Senior Inspector retaliated against subordinate employees for their cooperation with an OIG investigation. According to the investigative summary, the retaliation included  restricting an employee’s work assignments and threatening retaliation to dissuade employees from cooperating with the OIG’s investigation.

Whistleblower Protection Act Protects Disclosures to Inspectors General and Cooperation with an IG Investigation

The WPA protects cooperating with or disclosing information to an agency IG or OSC (5 U.S.C. § 2302(b)(9)(C)). Section 2302(b)(9)(C) covers disclosures made to an IG or OSC that do not meet the precise terms of a protected disclosure under Section 2302(b)(8).  Even where the employee does not initiate the disclosure to the IG, but makes a disclosure in response to the IG’s inquiries, the disclosure is still protected. If the disclosure fails to qualify as whistleblowing under 5 U.S.C. § 2302(b)(8), then the discloser may rely on 5 U.S.C. § 2302(b)(9)(C) for protection.

For example, in Special Counsel v. Nielson, a temporary employee cooperated with an agency IG investigation of his supervisor. The supervisor then issued the employee a lower performance rating in a manner that violated the agency’s policies on conducting performance reviews. The employee complained to the agency’s personnel office about the way his performance review was conducted and the supervisor terminated him. The MSPB held that the employee engaged in protected activity under Section 2302(b)(9)(C) when he cooperated with the IG’s investigation and announced his intent to complain to the personnel office. Special Counsel v. Nielson, 71 M.S.P.R. 161, 169-70 (1996).

The opinion notes that while “Nielson had ample reason to be disenchanted with [the temporary employee’s] value to his organization” the evidence also demonstrated that Nielson terminated the temporary employee when he “would not back down from his plan to go to the personnel office.” Accordingly, the MSPB suspended Nielson for 90 days.

In another case, Special Counsel v. Harvey, the Board construed Section 2302(b)(9) to protect an individual who drafted a letter to OSC alleging abuse of authority and mismanagement but had not yet sent the letter (Special Counsel v. Harvey, 28 M.S.P.R. 595, 604 (1984), rev’d on other grounds, 802 F.2d 537, 547 (D.C. Cir. 1986).) In finding retaliation, the Board noted Harvey’s treatment of the individual changed following his knowledge of the protected conduct. This retaliation included calling the individual into Harvey’s office on a daily basis to subject him to harsh criticism and threaten the ratings on his next performance appraisal. The Board suspended Harvey for 30 days.