Category Archives: Retaliation

EEOC Retaliation Claims and Security Clearances

Plaintiff, the FBI’s Legal Attaché in Saudi Arabia, filed race and national origin-based discrimination charges against his supervisors with the  United States Equal Employment Opportunity Commission(“EEOC”). After the charges were filed, one of Plaintiff’s supervisors referred him for a security investigation, maintaining that his connection with Saudi officials had put Plaintiff “inappropriately under the influence of his Saudi counterparts.”  An investigation concluded that the claims underlying his supervisor’s referral were baseless. Plaintiff filed suit under Title VII, claiming that the security referral was made in retaliation for his EEOC complaint. The government filed a motion to dismiss on the grounds that the retaliation claim was non-justiciable under Department of Navy v. Egan, 484 U.S. 518 (1988), which held that “employment actions based on denial of security clearance are not subject to judicial review, including under Title VII.”

In its initial decision, the United States Court of Appeals for the District of Columbia Circuit held that precedent “shields from review only those security decisions made by the FBI’s Security Division” and “not the actions of thousands of other FBI employees…like [Plaintiff].” The Court of Appeals remanded due to erroneous jury instructions, and particularly permitted the Title VII action against Planitff’s supervisors to go forward to the degree that the referral was premised on factually incorrect or misrepresentative information.

Upon rehearing, the Court of Appeals again held that Egan applies only to employees who routinely handle security clearances. In response to the government’s argument that allowing a Title VII action would end security reports that executive employees are required to make under Executive Order 12,968, the Court of Appeals narrowed its prior decision. The Court of Appeals held that Title VII allegations based on “knowingly false” information could advance consistent with Egan. Since some of the claims underlying the supervisor’s referral were false, the Court of Appeals remanded so that the district court could determine whether adequate evidence of knowingly false information existed to allow Plaintiff’s claims to go before a jury.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.

District of Columbia Whistleblowers Protection Act

Plaintiffs brought their complaint in the Superior Court against Defendants based on alleged violations of the District of Columbia Whistleblowers Protection Act (“WPA”). This lawsuit arose out of events surrounding the Metropolitan Police Department’s (hereinafter “MPD”) discontinuation of its use of “Intoxilyzer” devices to measure the blood-alcohol level of suspected drunk drivers. Plaintiffs were MPD officers who had been involved in hundreds of drunk driving arrests that involved the Intoxilyzer devices.  In February of 2010, the MPD removed Intoxilyzer devices from use.

After learning of the issues surrounding usage of the Intoxilyzer devices, Plaintiffs asserted that they “were instructed by attorneys working for the District of Columbia to limit their testimony regarding the problems with the Intoxilyzer devices and told not to answer questions about when they became aware of the problems with the devices.  However, according to Plaintiffs, they  “refused to alter their testimony” and made their second alleged protected disclosure when they “informed attorneys of the District of Columbia that they would testify truthfully regarding their knowledge of the Intoxilyzer and Intoximeter devices.”

Later, a District of Columbia government attorney sent a memorandum to the MPD Internal Affairs Division alleging that Plaintiffs had acted improperly during a certain arrest. Plaintiffs alleged, also, that this memorandum was retaliatory in nature.

Still later, Plaintiffs were informed that they had been selected to attend a training in preparation for taking over MPD’s enforcement program for driving under the influence (hereinafter “DUI”) offenses. However, when attorneys for the District of Columbia were informed that Plaintiffs were to be in charge of the DUI enforcement program, they objected and claimed that Plaintiffs were under investigation.  Plaintiffs alleged that the loss of the promotion and training opportunities constituted retaliation for their alleged disclosures.

Plaintiffs also alleged that an Internal Affairs investigation was retaliatory in nature.  Last, Plaintiffs alleged that investigatory actions, the filing of the Motion to Correct the Record, and their placement on the Lewis list constituted further retaliation.

According to the Complaint,  Plaintiffs were later cleared of all charges of
misconduct.

The WPA provides that “[a] supervisor shall not take, or threaten to take, a prohibited personnel action or otherwise retaliate against an employee because of the employee’s protected disclosure or because of an employee’s refusal to comply with an illegal order.”

The WPA further defines “retaliating” as including “conducting or causing to be conducted an investigation of an employee or applicant for employment because of a protected disclosure made by the employee or applicant who is a whistleblower.” Under this paragraph, “‘[i]nvestigation’ includes an examination of fitness for duty and excludes any ministerial or non-discretionary fact finding activity necessary to perform the agency’s mission.”

In sum, these provisions of the WPA contemplate retaliation as taking the form of an adverse action by a supervisor that is motivated by retaliatory intent.  Retaliatory investigations are explicitly prohibited by the WPA.

WPA specifically prohibits two categories of actions:

“(a) A supervisor shall not take, or threaten to take, a prohibited personnel action or otherwise retaliate against an employee because of the employee’s protected disclosure or because of an employee’s refusal to comply with an illegal order.

(b) Except in cases where the communication would be unlawful, a person shall not interfere with or deny the right of employees, individually or collectively, to furnish information to the council, a Council committee, or a Councilmember.”

The WPA defines a “supervisor” as:

“An individual employed by the District government who meets the definition of a ‘supervisor’ in [D.C. Code] § 1-617.01(d) or who has the authority to effectively recommend or take remedial or corrective action for the violation of a law, rule, regulation or contract term, or the misuse of government resources that an employee may allege or report pursuant to this section, including without limitation an agency head, department director, or manager.”

In addition, D.C. Code §1-615.53(b) provides that “a person shall not interfere with or deny the right of employees, individually or collectively, to furnish information to the Council, a Council committee, or a Councilmember.”

Last, a “protected disclosure” is defined as:

“Any disclosure of information, not specifically prohibited by statute, without restriction to time, place, form, motive, context, forum, or prior disclosure made to any person by an employee or applicant, including a disclosure made in the ordinary course of an employee’s duties, by an employee to a supervisor or a public body that the employee reasonably believes evidences

(A) Gross mismanagement;

(B) Gross misuse or waste of public resources or funds;

(C) Abuse of authority in connection with the administration of a public program or the execution of a public contract;

(D) A violation of a federal, state, or local law, rule or regulation, or of a term of a contract between the District government and a District government contractor which is not of a merely technical or minimal nature; or

(E) A substantial and specific danger to the public health and safety.”

As set forth above, Plaintiffs alleged certain protected disclosures under the WPA.  Therefore, the Superior Court, upon largely denying Defendants’ Motion to Dismiss concluded that the Plaintiffs’ complaint sufficiently asserted claims under the WPA.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.