Developments at the OSC: On August 11, 2011, the U.S. Office of Special Counsel (OSC) announced another case where OSC intervention resulted in a stay of an adverse action against an employee. OSC’s action in the matter not only ultimately resulted in reversal of the adverse action for the employer, but further resulted in the employing agency–the U.S. Department of Energy (DOE)–changing its suspension policy across the board.
DOE employee Stephen Patrick worked as a nuclear materials courier. Due to allegations of misuse of government vehicle infraction, Mr. Patrick received a 30 day suspension, which he then appealed to the Merit Systems Protection Board (MSPB). A few months later, DOE managers revoked Mr. Patrick’s certification to work with nuclear materials under DOE’s Human Reliability Program (HRP). Under DOE policy, loss of a HRP certification resulted in a mandatory indefinite suspension. During this timeframe, Mr. Patrick contacted DOE’s Office of Inspector General (IG) regarding his case. Mr. Patrick appealed the HRP certification loss within DOE, resulting in the decision by a DOE Deputy Secretary to reinstate Mr. Patrick’s HRP certification 13 months later. However, lower-level DOE management implementing the Deputy Secretary’s opinion decided that Mr. Patrick’s HRP certification would not be automatically renewed, and instead required Mr. Patrick to reapply for HRP certification anew–resulting in Mr. Patrick yet again being placed on mandatory indefinite suspension. Under the DOE policy, employees suspended for loss of HRP certification were placed on unpaid leave and not entitled to back pay if the HRP certification was later restored.
Mr. Patrick then filed a complaint with OSC, alleging that DOE’s second suspension was retaliation for Mr. Patrick’s MSPB appeal and for his contacts with the IG, which would be protected whistleblowing. At the end of its investigation, OSC advised DOE Secretary Chu that DOE’s mandatory suspension policy violated basic due process protections and recommended that Mr. Patrick be awarded back pay and that DOE revise its policies. On August 2, 2011, DOE announced that it was rescinding its mandatory suspension policy, so that henceforth DOE employees losing HRP certification would be placed on paid administrative leave. DOE further promised to revise its internal processes so that HRP certification appeals would be much faster than the 13-month delay that Mr. Patrick endured.
All employees should be free from a retaliatory work environment. Federal employees who believe they have been retaliated against for contacting an IG or invoking their MSPB appeal rights, or who otherwise have suffered from other prohibited personnel practices, should consult with attorneys experienced in handling these cases.
