What is the difference between merit principles and prohibited practices

An affirmative defense is an assertion by the employee that, if proven, constitutes a defense to the charged action even when the charged action is proven. Thus, if an agency removes, suspends or demotes a tenured employee as defined by 5 U. In order to establish a prima facie case of retaliation in the context of an otherwise appealable action, the appellant must show by preponderant evidence that he or she made a protected disclosure and that the disclosure was a contributing factor in a personnel action against him or her.

Department of the Air Force , M. Prima facie means that a party produces evidence that — unless rebutted — is sufficient to prove a particular proposition or fact. Preponderant evidence means that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.

The term protected disclosure means a disclosure of information an employee reasonably believes evidences a violation of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety.

Significantly, however, vague or conclusory allegations of wrongdoing are generally not protected disclosures. Davis v. Contributing factor means any disclosure that affects an agency's decision to threaten, propose, take, or not take a personnel action with respect to the individual making the disclosure.

A personnel action means: 1 an appointment; 2 a promotion; 3 an adverse action as defined by section or other disciplinary or corrective action; 4 a detail, transfer, or reassignment; 5 a reinstatement; 6 a restoration; 7 a reemployment; 8 a performance evaluation; 9 a decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other personnel action; 10 an order for psychiatric testing or examination; and 11 any other significant change in duties, responsibilities, or working conditions.

See also www. If I establish a prima facie case of retaliation under section b 8 in an otherwise appealable action, will I prevail? No, not necessarily. Once the appellant establishes a prima facie case, the agency is given an opportunity to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure. Department of Agriculture , F.

Department of the Army , M. Clear and convincing evidence is that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established; it is a higher standard than preponderant evidence. If the agency fails to demonstrate that it would have taken this action in the absence of the disclosure, then the employee prevails. The Board has jurisdiction over an IRA appeal when an employee , former employee , or applicant for Federal employment demonstrates that he or she has exhausted administrative remedies before the Office of Special Counsel OSC and makes nonfrivolous allegations that: 1 he or she engaged in whistleblowing activity by making a protected disclosure under 5 U.

Yunus v. Department of Veterans Affairs , F. How do I exhaust my administrative remedies before OSC? To meet the exhaustion requirement, the appellant must prove by preponderant evidence that he or she filed a complaint with OSC and provided OSC with a sufficient basis to pursue an investigation which might have led to corrective action. Briley v. Merit Systems Protection Board , 7 F. The Board will only consider the actual claims the appellant made to OSC in the complaint and not the individual's later characterization of those statements before the Board.

Covarrubias v. Social Security Administration , M. Are there any time limits for filing a section b 8 claim with MSPB? When the appellant raises a whistleblower retaliation claim affirmative defense in the context of an otherwise appealable action , he or she must file an MSPB appeal no later than 30 days after the effective date of the agency's action, or 30 days after the date of the appellant's receipt of the agency's decision from the action, whichever is later.

In contrast, when the appellant raises a whistleblower claim in the context of an IRA appeal , the appeal must be filed within 65 days after the date OSC notifies the appellant in writing that it is terminating its investigation into the appellant's allegations or, if no action is taken by OSC within days of the date the individual filed their complaint with OSC, at any time after days have passed.

Once an employee, former employee or applicant for Federal employment demonstrates that the Board has jurisdiction over his or her IRA appeal, the appellant will prevail if: 1 he or she proves by preponderant evidence that he or she made a protected disclosure that was a contributing factor in a personnel action at issue; and 2 the agency fails to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure.

An appellant is not required to prove the merits of their protected disclosure. Rather, the appellant must establish only that he or she had a reasonable belief that he or she was disclosing gross mismanagement, a gross waste of funds, an abuse of authority, a violation of law, rule, or regulation, or a substantial and specific danger to public health or safety.

See Downing v. Department of Labor , 98 M. If I prevail on a claim that an agency violated section b 8 , what type of corrective action may MSPB order? If an appellant prevails on a b 8 whistleblower claim, MSPB may, depending on the circumstances, order: 1 that the agency place the individual in the position the individual would have been in had the prohibited personnel practice not occurred; 2 back pay and related benefits; 3 medical costs incurred; 4 travel expenses; 5 any other reasonable and foreseeable consequential damages; and 6 attorney fees and costs.

There are too many to discuss in this brief article, but here are two examples. Wadhwa v. Department of Veterans Affairs , M. Department of the Air Force , F. In effect, a policy disagreement can serve as the basis for a protected disclosure only if the legitimacy of a particular policy is not debatable among reasonable people.

Nevertheless, the U. Court of Appeals for the Federal Circuit has refined and clarified this legal principle to the effect that the WPA's protection now covers disclosures about policy, even where reasonable people might disagree on the merits of that policy, when the policy concerns a substantial and specific danger to public health or safety.

Chambers v. Department of the Interior , F. This report discusses results from MSPB's Merit Principles Survey regarding perceptions related to whistleblowing and provides a comparison to the results of a similar survey MSPB conducted in Data from these surveys indicate that since , the percentage of employees who perceive any wrongdoing has decreased.

However, perceptions of retaliation against those who blow the whistle remain a serious concern. In both and , approximately one-third of the individuals who felt they had been identified as a source of a report of wrongdoing also perceived either threats or acts of reprisal, or both. Our survey data indicate that the most important factor for employees when deciding whether to report wrongdoing is not about the personal consequences employees may experience.

Saving lives was more important to survey respondents than whether they would experience punishment or a reward. In addition, whether the agency would act on a report of wrongdoing mattered more than any fear of an unpleasant consequence for the employee making the report. This means that agencies have the power to influence employees' decisions about reporting wrongdoing.

The most important step that agencies can take to prevent wrongdoing may be the creation of a culture that supports whistleblowing.

What is the ninth prohibited personnel practice? Under the law, any employee who has the authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority — 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; B testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph A ; 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.

What is the purpose of the ninth prohibited personnel practice? Simply put, this PPP protects Federal employees and applicants for employment from retaliation when they exercise certain legal rights, when they cooperate with an Inspector General or Office of Special Counsel OSC investigation, or when they refuse to obey an order requiring them to violate a law.

The guarantee of freedom from reprisal extends to any person who seeks the assistance of a remedial administrative process, and the law is designed to ensure the integrity of the process. As an example, in Matter of Frazier , 1 M. Frazier ending his collateral duties as an EEO counselor.

Soon after, Mr. Frazier resigned from those duties, and the agency rescinded the proposed letter of reprimand. Frazier's protected activities and constituted the commission of a PPP. How do Federal employees show that they were retaliated against in violation of the ninth PPP? To establish a prima facie case of retaliation under s ection b 9 , the employee must show that: he or she engaged in a statutorily-protected activity; he or she was subsequently treated adversely by the agency; the deciding official the person authorized to make the final decision on a disciplinary action had actual or constructive knowledge that the employee engaged in the protected activity; and a causal connection exists between the protected activity and the personnel action.

Crump v. Once a prima facie case is established, the agency must demonstrate that the action would have been taken even in the absence of any protected activity. Gerlach v. Federal Trade Commission , 9 M. Doyle , U. What is the difference between section b 9 and section b 8 whistleblowing? Therefore, allegations of reprisal based upon EEO or grievance disclosures are not considered whistleblowing within the meaning of the Whistleblower Protection Act , and thus they are outside MSPB's individual right of action appeal jurisdiction.

Postal Service , 53 M. An affirmative defense occurs when an employee claims that an action should not be sustained because: 1 there was a harmful error in the agency's procedures for taking the action; 2 the decision was based on a PPP; or 3 the decision was otherwise not in accordance with the law. While an agency has the burden to prove that its action is supported by a preponderance of the evidence, the appellant asserting an affirmative defense bears the burden to prove the affirmative defense by a preponderance of the evidence.

King v. Jerome , 42 F. The OSC can investigate allegations of PPPs, secure corrective action, and bring action against employees who commit such acts. To establish a violation of this section, OSC must show: 1 the employee engaged in an activity protected by the statute; 2 the employee was subsequently treated adversely; 3 agency officials knew or had constructive knowledge that the employee engaged in protected activity; 4 there was a causal connection between the protected activity and the personnel action; and 5 the protected activity was a significant factor in the taking of the action.

Harvey v. Nielson , 71 M. Hathaway , 49 M. As stated above, retaliation for exercising appeal, grievance, or complaint rights is generally covered by 5 U. In addition, MSPB recognizes a claim of retaliation for filing a discrimination complaint, as opposed to, for example, retaliation for filing a grievance, as equivalent to prohibited discrimination under 5 U.

See Mahaffey v. Significantly, this categorization of retaliation for filing a discrimination complaint can lead to situations where MSPB will review an agency action that might otherwise have been barred from review under a collective bargaining agreement. Are compensatory damages available for violations of the ninth PPP? If an appellant prevails on a b 1 and 9 EEO claim, he or she may be eligible to receive compensatory damages.

See Edwards v. Postal Service , M. For instance, if an appellant proves that an agency discriminated against him or her, MSPB could order the agency to pay for expenses related to moving, looking for another job, or medical treatment if those expenses were incurred because of the retaliatory action. In the case of Simonton v. Postal Service , 85 M. The Board also determined, though, that such damages would not be available for Mr.

Simonton's claims of age discrimination or retaliation for pursuing workers' compensation benefits. In its report, Prohibited Personnel Practices: Employee Perceptions , MSPB reported that perceived violations of this provision have decreased steadily in the last 15 years.

In , 3. This provision supports the second and the eighth Merit System Principles that all employees and applicants for Federal employment should on the merits receive fair and equitable treatment in all aspects of personnel management with proper regard for their privacy and constitutional rights and should be protected against arbitrary action and personal favoritism. Department of Justice, 6 M. Department of Justice, 32 M. I think it is clear to prohibit discrimination against activities that have no bearing on one's job.

The Board has held that section b 10 is designed to prohibit personnel practices that are taken in response to an employee's off-duty conduct or interests that are unrelated to job performance. Thompson v. Farm Credit Administration, 51 M. Gramm , F. The Board has not established the precise elements for proving a violation of 5 U. MacLean v. Department of Homeland Security, M. Depending on the specific facts and circumstances, the proscription of section b 10 may be analogous to either 1 the prohibition against retaliation for exercising appeal rights, filing grievances, etc.

Initially, this PPP was addressed by the Board shortly after the Reform Act on the question of whether the agency could rely on a rebuttable presumption of nexus or a connection to the efficiency of the service for certain off-duty or criminal misconduct. See Johnson v. More recently, this PPP has been addressed by the Board on the question of whether the agency's otherwise appealable action constituted discrimination on the basis of sexual orientation, political beliefs, or participation in certain organizations.

The OSC receives and investigates claims of prohibited personnel practices, including this provision. The Special Counsel also may petition the Board for corrective action on behalf of a person who has been or is about to be subjected to a prohibited personnel practice under section b In both types of proceedings, the case will be heard by an administrative law judge who will make an initial decision that can be appealed to the full Board.

An individual employee also could raise this provision as an affirmative defense to an agency's adverse personnel action that is within MSPB's jurisdiction, such as a removal. Absent an otherwise appealable matter, MSPB as opposed to OSC does not have jurisdiction to hear a claim by an individual that this provision has been violated. See Wren v. Are there exceptions to this practice? An additional 5. Also, 1. Department of the Navy, M. What is the purpose of 5 U.

The VEOA strengthened and broadened the applicability of veterans' preference, Government-wide, in order to improve redress for preference eligibles. Subsection b 11 reinforces the Government's commitment to protecting and preserving the rights of veterans by making it a PPP to knowingly violate certain veterans' preference laws, rules, and regulations. As indicated in footnote 1, it includes only those requirements that are specified in e 1.

For example, 5 U. Therefore, neither this statute nor its implementing regulations at 5 C. Part examining system may form the basis for a claim that b 11 has been violated.

Ramsey v. Office of Personnel Management, 87 M. Does a statute's exclusion from e 1 preclude a VEOA claim based on that statute?

These are two separate provisions of law. For example, an individual who believes that he or she was denied the right to compete for a vacancy under 5 U. Department of the Army, M. May MSPB order corrective action based on a violation of b 11? Interestingly, along with b 11 , VEOA also added subsection e 2 , which states that: Notwithstanding any other provision of this title, no authority to order corrective action shall be available in connection with a prohibited personnel practice described in subsection b Nothing in this paragraph shall be considered to affect any authority under section relating to disciplinary action.

Therefore, unlike other PPPs, the Board may not order corrective action under b Legislative history does not specifically address why Congress enacted subsection e 2.

Therefore additional authority to do so under b 11 might have been viewed as unnecessary or confusing. The Board's authority to order a VEOA remedy based upon a violation of b 11 remains an open question. See Villamarzo, 92 M. May MSPB bring action against an employee who violates b 11?

Is an inadvertent violation of veterans' preference laws, rules, or regulations a PPP under b 11? There is no case law on this question at present. We must await future case law to know the answer to this question.

B Section c 2 and c of title D Section c of the Foreign Service Act of E Section f , e , and 5 of title F Section a of title G Any other provision of law that the Director of the Office of Personnel Management designates in regulations as being a veterans' preference requirement for the purpose of this subsection.

H Any regulation prescribed under subsection b or c of section and any other regulation that implements a provision of law referred to in any of the preceding subparagraphs. See Villamarzo v. Environmental Protection Agency, 92 M. Preference eligibles are entitled to have 5 or 10 points added to their earned score on a civil service examination see 5 U. They are also accorded a higher retention standing in the event of a reduction in force see 5 U.

Preference does not apply, however, to in-service placement actions such as promotions. See Lynch v. Office of Personnel Management, M.

When the bill that became the CSRA was introduced, it did not include a PPP that addressed the merit system principles , and the House of Representatives did not add one. Conference Report No. As is true of most other PPPs, MSPB lacks the authority to consider an employee's claim of an alleged violation under section b 12 except when it is raised as an affirmative defense in a matter over which MSPB otherwise has appellate jurisdiction.

A claimed violation does not form an independent basis for MSPB to exercise its appellate jurisdiction. See Merzweiler v. Office of Personnel Management , M. Are there other ways in which the Board may consider a claim under section b 12? In addition to corrective and disciplinary action complaints brought by the Special Counsel, 5 U. Many of the cases in which it is claimed that an employee has committed a PPP under section b 12 involve MSPB's regulation review authority.

See Wells v. Harris , 1 M. There, the Board noted that most of the PPPs are defined by section b with a degree of specificity and are derived from previously existing law or regulation, but that section b 11 as it was then numbered is an exception.

Lacking such guidance, therefore, the Board relied on the wording of the provision to hold that a PPP is not established under this section merely by showing that an action violates the merit system principles. That was particularly necessary, it found, because those terms were also not defined in the CSRA.

The issue to be decided in Wells was whether OPM regulations that provided for "unacceptable performance" actions against employees under 5 U. The Board then looked to the next question posed by then section b 11 , i.

Although there were several merit system principles that might apply, the Board found that the most pertinent principle was section b 6 , providing that " It is interesting to note that Wells v. Has the Board considered 5 U. Yes, it has done so many times. However, because of the limitations imposed by the statute and regulations allowing for regulation review, few such requests are granted. See, for example, Vergara v.

There, the Board found that the appellant failed to prove that the OPM regulation that denies retirement service credit for time spent in an indefinite appointment causes the commission of the PPP at b 12 because the regulation violates 5 U. In doing so, the Board noted that its regulation at 5 C.

In the most recent example, National Treasury Employees Union v. Although the Board ultimately denied review, it found these contentions constitute nonfrivolous allegations establishing a claim under 5 U.

Are there any important appellate jurisdiction cases involving 5 U. One notable example is Lovshin v. Department of the Navy , F. As is true of Wells v. Harris , discussed above, this case addressed the requirements for taking performance-based actions. It arose from a Board ruling that agencies are required to follow the procedures of 5 U.

Chapter 43 in order to take an action based on unacceptable performance and could not rely instead on the adverse action procedures at 5 U. Chapter It directed the use of performance appraisals as the basis for actions both rewarding and removing employees, among other things. In its analysis, the court stated that, under section b 11 now 12 , it is a PPP to violate the merit principles set out in section a.

Two merit principles in section are particularly relevant: 6 Employees should be retained on the basis of the adequacy of their performance, inadequate performance should be corrected, and employees should be separated who cannot or will not improve their performance to meet required standards; and 7 Employees should be provided effective education and training in cases in which such education and training would result in better organizational and individual performance.

Based on these authorities, the court held that, under 5 U. What violations of 5 U. These are a few examples of other situations that have been found to violate b Byrd , 59 M. Considering all the circumstances showing pre-selection, and because TLA authority is limited to temporary positions, but the position at issue was permanent, the Board agreed that the action violated the regulations concerning such authority.

Further, it violated the merit system principle at 5 U. Suzal v. He claimed that his contract with VOA had not been renewed because of his failure to submit certain articles he wrote in his other job for prepublication clearance by VOA, and that VOA's alleged insistence that he do so violated the First Amendment.

National Treasury Employees Union v. Egger , F. The appellants asserted a violation of a law codified in title 5 of the United States Code, and the court held that the claim was cognizable by the Special Counsel under b 11 as it was then numbered. These merit system principles would trigger OSC's jurisdiction over appellants' claims. Hayden , F. In the same vein, in its August report entitled " Prohibited Personnel Practices: Employee Perceptions ," when the Board examined section b 12 , it noted that: The commission of this PPP can overlap with any of the other PPPs because the PPPs as a whole tend to mirror the merit system principles [ MSP ], and this PPP covers violations of laws, rules, and regulations implementing merit system principles.

They noted that, even though they cannot issue new recommendations, it is unlikely these recommendations would change. Listen Live Schedule Sports. Artificial Intelligence. Ask the CIO.

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Federal Newscast. Federal Tech Talk. For Your Benefit. Innovation in Government. Modern Government. On DoD Podcasts. Platform for the Mission. Search for Accountability. Security Clearance Insecurity. The Civil Service Reform Act of requires the Office of Personnel Management OPM to "hold[] managers and human resources officials accountable for efficient and effective human resources management in support of agency missions in accordance with Merit System Principles. The Office of Special Counsel OSC investigates allegations that an agency has committed a prohibited personnel practice , and may seek disciplinary or corrective action for a prohibited personnel practice before the MSPB.

It is a prohibited personnel practice to take a personnel action in violation of the Merit System Principles. As stated above, other Merit System Principles are mirrored in the list of prohibited personnel practices within OSC's jurisdiction.

The Equal Employment Opportunity Commission makes the final administrative decision on claims that an agency has committed unlawful employment discrimination. Part Such discrimination is inconsistent with the first and second Merit System Principles. Can agency managers contact the Merit Systems Protection Board for advice on whether a particular planned action is consistent with the Merit System Principles or could be a prohibited personnel practice?

What is the first Merit System Principle? What is the second Merit System Principle? What is the third Merit System Principle?