Whistleblower Protection Act Liability Based on Perceived Whistleblowing
The Whistleblower Protection Act protects an individual perceived as a whistleblower, regardless of whether the individual actually made a disclosure. “The perceived whistleblower doctrine prevents a supervisor from taking retaliatory action against an employee, even if the employee’s disclosure is later found unprotected, so long as the retaliation was taken in response to the disclosure.” Montgomery v. M.S.P.B., 382 Fed.Appx. 942 (2010). See also Schaeffer v. Dep’t of the Navy, 86 M.S.P.R. 606, 617 (2000) (“One who is perceived as a whistleblower is entitled to the protections of the WPA, even if he has not actually made protected disclosures.”).
In analyzing perceived whistleblower cases, the MSPB focuses on whether the agency officials involved in the retaliatory personnel actions believed that the employee made or intended to make a disclosure evidencing the type of wrongdoing listed under Section 2302(b)(8). Whether the employee actually made a protected disclosure is irrelevant. The employee must prove that the agency’s perception (not the employee’s protected conduct) was a contributing factor in the personnel action. King v. Dep’t of the Army, 116 M.S.P.R. 689 (2011).
In an August 2019 decision in Mount v. DHS, the First Circuit extended the perceived whistleblowing theory to a perceived assistance WPA retaliation claim brought under 5 USC § 2302(b)(9)(B) (prohibiting retaliation for testifying for or otherwise lawfully assisting any individual in the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation).
Liability for Retaliation Against a Perceived Whistleblower Under State Whistleblower Protection Laws
OSHA Whistleblower Protection Law Protects Perceived Whistleblowers
In order to engage in a protected activity, the employee does not have to directly institute the proceedings and it is sufficient if he sets into motion the actions of others which result in perceived — an OSHA [proceeding]. Additionally, termination can be found to be retaliatory where the terminated employee did not himself engage in a protected activity, but had a close relationship with the individual who did. Finally, retaliation can be found based upon the mistaken belief or perception that the employee had engaged in a protected activity.
Mine Safety and Health Act Bars Retaliation Against Perceived Whistleblowers
In Moses v. Whitley Dev. Corp., 4 FMSHRC 1475 (Aug. 1982), aff’d, 770 F.2d 168 (6th Cir. 1985), the Federal Mine Safety and Health Review Commission construed the Mine Safety and Health Act as barring retaliation against perceived whistleblowers. Moses was fired, and the Judge below found that the discharge occurred “because the operator thought the complainant had engaged in protected activity, even though he had not.” 4 FMSHRC at 1480. We acknowledged that “a literal interpretation … might require the actual or attempted exercise of a right before the protection of section 105 comes into play,” but we nevertheless found a violation. Emphasizing the effect of the employer’s action on the willingness of miners to exercise their rights, the FMSHRC pointed out that:
Miners would be less likely to exercise their rights if no remedy existed for discriminatory action based on an operator’s mistaken belief that a miner had exercised a protected right …. [E]mployees could reasonably fear that they might be treated adversely on the basis of suspicion alone, and thus would seek to avoid even the appearance of asserting their rights.