The little federal agency charged with protecting whistleblowers just got slapped for retaliating against its own, in-house whistleblower.
The Merit Systems Protection Board is a personnel court of last resort for federal employees who believe they were unjustly fired, demoted, discriminated against or punished for revealing corruption and other truths agencies don’t want to hear. It’s a guardian of the merit system, a white knight for thousands of people each year when judges rule in their favor and rule against the government, which they often do.
But after Timothy Korb presented data at a staff meeting in 2013 that revealed the agency’s lengthy backlog of pending cases and a longer-than-necessary time it was taking to adjudicate them, his boss moved to suspend him without pay for 21 days and take some of his most important duties away.
Then Korb, an outspoken attorney and active union member, became a plaintiff in Timothy L. Korb v. Merit Systems Protections Board, appealing to his own agency to decide, impartially, whether his supervisors retaliated against him for blowing the whistle.
Last week, he won. An administrative judge —brought in from the U.S. Coast Guard to hear his case to avoid a conflict of interest —ruled that the merit systems board had moved improperly to suspend Korb and reduce his job duties in retaliation for whistleblowing, an activity protected by federal law.
“The Agency was required to prove by clear and convincing evidence that it would have taken the same personnel action in the absence of any protected activity or disclosure,” Administrative Law Judge George Jordan wrote in a 47-page opinion on Sept. 25.
“It has not done so.”
Korb, who works in the office that reviews appeals of administrative judges’ rulings, is entitled to damages and to fullly resume his duties, about 20 percent of which involved compiling weekly summaries of recent board decisions.
Korb’s attorney said the fault in the case lies with the merit board’s leadership.
“There’s going to be a rush to condemn the agency ,when in fact the condemnation is more appropriately placed on the leadership of the agency, not the agency itself,” said Stu Miller, who is Of Counsel to Kitchens New Cleghorn LLC of Atlanta, Georgia.
“No one stepped in to tell the mid-level managers, ‘What you’re doing [by retaliating] is wrong,” said Miller, who was an administrative judge for the merit board for 20 years.
Bryan Polisuk, the agency’s general counsel, said in a statement that the board “is reviewing the Administrative Law Judge’s findings and working on next steps in this matter.”
Polisuk declined to say whether the agency will appeal the ruling to the three-member board that votes on appeals. That could pose all kinds of conflicts, because the board members are Korb’s bosses.
Korb was never suspended; his supervisor withdrew that threat before long.The trigger for the proposed suspension was that Korb had moved to change the standard of review for appeals of administrative judges’ decisions. The boss said the change was not his to make.
But the judge found the boss’s “decision to immediately propose a lengthy suspension…harsh and retaliatory on its face.”
Jordan noted in his ruling that Korb is a “consistently outspoken” attorney who has had “numerous policy disputes” with the board’s management. His union activity “necessarily places him at odds with management at times…Antipathy between the Appellant and some members of MSPB management appears to have built for some time…” he wrote.
But Jordan made it clear that just because Korb was a thorn in their side did not give the agency’s managers the right to break the rules they uphold every year for thousands of other federal employees.