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The Employment Law Group® Law Firm Scores Another Victory in Whistleblower Protection Act Case

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The Merit Systems Protection Board (“MSPB”) has ordered the U.S. Agency for International Development (“Agency”) to pay backpay, including interest, and other benefits to a former investigator who alleged that he was retaliated against for blowing the whistle about agency personnel consuming alcohol while on duty.  The MSPB also ordered the Agency to cancel the former investigator’s reassignment and restore him to his former position as Inspector in Budapest, Hungary.  The order follows a 2008 decision in Drake v. Agency for International Development, where the U.S. Court of Appeals for the Federal Circuit held that the MSPB erred in concluding that Drake’s disclosures were not protected under the Whistleblower Protection Act (“WPA”) because he could not prove that the behavior he observed was a result of intoxication.  According to the court, the appropriate standard for determining whether an employee’s disclosure is protected under the WPA is “not whether [the employee] was able to prove [a violation], but rather could a disinterested observer with knowledge of the essential facts known to and readily ascertainable by [the employee] reasonably conclude that agency personnel were [engaged in] a violation.”   In applying this standard, the court concluded that Drake had a reasonable belief that agency personnel were intoxicated and thus, Drake engaged in protected conduct under the WPA.  The administrative judge had previously found in favor of Drake on the remaining elements of his appeal, that he was entitled to relief when he proved that his disclosure was a contributing factor in his reassignment and that the agency failed to prove by clear and convincing evidence that it would have reassigned him absent his disclosure.

Mr. Drake was represented by Scott Oswald and Nicholas Woodfield of The Employment Law Group® law firm.  For more information about The Employment Law Group® law firm’s Whistleblower Practice and the Whistleblower Protection Act, click here.

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