The Whistleblower Protection Act protects an individual perceived as a whistleblower, regardless of whether the individual actually made a disclosure. 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 prevails if the agency perceived the employee as a whistleblower. King v. Dep’t of the Army, 116 M.S.P.R. 689 (2011).
The perceived whistleblower theory of liability has also been applied in private sector whistleblower protection cases, such as a decision from a South Carolina district judge holding that the discharge of three employees because the employer could not figure out which of the three employees had filed an OSHA complaint violates anti-retaliation provisions of OSHA as to all three. Donovan v. Peter Zimmer, Inc., 557 F.Supp. 642, 652 (D.S.C. 1982). See also Reich v. Hoy Shoe Company, Inc., 32 F.3d 361, 368 (8th Cir. 1994) (“employer that retaliates against employee because of employer’s suspicion or belief that the employee filed an OSHA complaint has as surely committed a violation . . . “). In 2015, a whistleblower was awarded $1 million at trial in a case brought under the Washington State Employee Whistleblower Protection Act where management retaliated against him because they assumed that he blew the whistle on timecard fraud.
In action brought under the FLSA’s anti-retaliation provision, the Eight Circuit held that
employees had a retaliatory discharge claim where the employer retaliated against them based on the employer’s mistaken belief that the employees had reported FLSA violations. Saffels v. Rice, 40 F.3d 1546, 1549 (8th Cir. 1994). See also Brock v. Richardson, 812 F.2d 121 (3d Cir. 1987).