Labor & Employment Law Daily Wrap Up, PUBLIC EMPLOYEES—Fed. Cir.: MSPB properly denied corrective action for auditor removed by Department of Interior, (Jan 23, 2026)

By Jason Albright, J.D.

The agency launched an investigation that revealed a “toxic and unhealthy work environment” in his office and noted that he was a “significant contributor[ ]” to creating it.

The Merit Systems Protection Board did not err in denying corrective action based on whistleblower retaliation allegations brought by a former auditor for the Department of Interior’s Office of Natural Resources Revenue who was removed for performance issues after he brought an administrative grievance concerning alleged FMLA violations and reported other general allegations of agency mismanagement, the Federal Circuit found in a nonprecedential opinion. The employee argued that his grievance falls under 5 U.S.C. § 2302(b)(9)(A)(i), which protects against retaliation for exercising a grievance right with regard to remedying a violation of an individual Right of Action appeal under 5 U.S.C. § 2302(b)(8), because the grievance contained assertions that a letter of reprimand he received was the result of “retaliation,” but the letter could not possibly be retaliation for the whistleblowing activities he alleged because he received it before either purported disclosure occurred (McKinnis v. Department of the Interior, No. 2024-1136 (Fed. Cir. Jan. 22, 2026, nonprecedential)).

Auditor. The plaintiff worked as an auditor for the Department of the Interior’s Office of Natural Resources Revenue from May 9, 2011, until he was removed on January 19, 2018, for failure to demonstrate acceptable performance after a reasonable opportunity to improve.

Letter of reprimand. Prior to his removal, the agency took several adverse personnel actions against him. In July 2016, he received a letter of reprimand from his then-supervisor for two instances of failure to provide accurate information: one related to his attempts to use leave under the FMLA and another related to his attempts to adjust his work-related travel plans.

Grievance. Less than a week later, he filed a grievance alleging the agency was violating he FMLA and its own travel regulations, and that he received the letter of reprimand as the result of “something personal” or “retaliation.” His grievance was denied by another manager on August 29, 2016.

Transfer. He then applied to and was transferred to a different team based out of the same office that was overseen by a different supervisor.

Investigation. Shortly after, the agency launched an investigation into that office’s working conditions, and the investigation revealed a “toxic and unhealthy work environment,” and noted that the auditor was a “significant contributor[ ]” to creating that environment.

The final report also emphasized that management allowed unhealthy behaviors to manifest and recommended his new supervisor attend supervisory training on dealing with difficult situations and people. The auditor participated in this investigation and submitted a written statement on March 8, 2017, outlining his concerns with management and the office.

Proposed suspension. On April 7, 2017, the new supervisor proposed suspending the auditor for 14 days based on two charges. First, she alleged he provided inaccurate information to supervisors when he stated he was called by a state auditor about a specific compliance review, when in fact he had been the one to place the call. Second, she alleged that he exhibited disrespectful conduct when, during a conversation regarding approval of his work credit card statement, he interrupted the new supervisor to state “that’s a lie, she is lying.” Though he contested those facts, he was suspended by the deciding official.

PIP. On July 6, 2017, the new supervisor placed the auditor on a performance improvement plan (PIP) because his performance fell below a satisfactory level. He was not completing or making timely progress on his assigned audits, which in one instance necessitated transferring the assignment to another auditor.

Removal. When the employee did not sufficiently improve by the end of his review period, the new supervisor proposed his removal from federal service. He did not submit a response to his proposed removal, and a different deciding official, removed him, effective January 19, 2018.

Whistleblower complaint. On October 14, 2016, the employee filed the underlying whistleblower retaliation complaint with the Office of Special Counsel (OSC), arguing his letter of reprimand was retaliation for his administrative grievance and general allegations of agency mismanagement through various other reporting mechanisms. He periodically amended his OSC complaint, finally alleging that his letter of reprimand, suspension, PIP, and removal were all the result of retaliation.

On January 10, 2018, OSC advised him it would not be taking any action in his case, which closed on January 31, 2018.

IRA appeal. On February 16, 2018, the employee filed an individual right of action (IRA) appeal with the MSPB. After a two-day hearing, the administrative judge issued an initial decision denying his request for corrective action. The administrative judge found that several disclosures were protected under the Whistleblower Protection Act as amended in 2012 (WPA), including his grievance and March 2017 written statement, and that they contributed to the personnel actions at issue. However, the administrative judge denied corrective action because the agency had successfully proven its affirmative defense: it would have taken the same actions notwithstanding his disclosures.

Petition for review. The employee disagreed and petitioned for MSPB for review. In its review, the Board sua sponte re-assessed the protected nature of his asserted disclosures. As relevant, the Board determined that his grievance was not a protected disclosure under the WPA, and that, though his March 2017 written statement was protected, he did not successfully prove it contributed to any of the asserted personnel actions. Because he had not proven his case in chief, the Board vacated the administrative judge’s findings regarding the agency’s affirmative defense. The Board then denied the employee’s petition for review and affirmed the administrative judge’s denial of corrective action.

Appeal. The employee timely appealed to the Federal Circuit, which exercised jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1)(A).

Grievance as protected disclosure. The appeals court first rejected the employee’s argument that the MSPB erred when it concluded that his grievance was not a protected disclosure that can support an IRA claim under the WPA. He argued that his grievance falls under 5 U.S.C. § 2302(b)(9)(A)(i), which protects against retaliation for exercising a grievance right with regard to remedying a violation of an individual Right of Action appeal under 5 U.S.C. § 2302(b)(8), because the grievance contained assertions that a letter of reprimand he received was the result of “retaliation,” but the letter could not possibly be retaliation for the whistleblowing activities he alleged because he received it before either purported disclosure occurred via the grievance.

His written statement. The appeals court also rejected the employee’s challenge to the Board’s determination that he was not entitled to corrective action with respect to his March 2017 written statement in response to the investigation, which both parties agreed was protected, because he did not prove it contributed to any of the personnel actions at issue. Here, the court found the Board’s decision supported by substantial evidence, particularly that the deciding official regarding his suspension “did not perceive [[the auditor]] as a whistleblower and was unaware of any protected disclosures [he] may have made,” and that there was no evidence indicating that his new supervisor knew of his March 2017 written statement either.

Finally, the Federal Circuit found that there was substantial evidence that the agency had strong performance-based reasons for suspending him, placing him on a PIP, and removing him. At the time he was placed on a PIP, his timely completion rate was 0 percent, and it improved to only 10 percent during the PIP period.

The case is No. 2024-1136.

Judge: Hughes, T.

Attorneys: Jennie Cathryne Blaine Watson (Alan Lescht and Associates) for Steven A. McKinnis. Liridona Sinani, U.S. Department of Justice, for Department of the Interior.

Companies: Department of the Interior

Cases: PublicEmployees Whistleblowers Retaliation EmployeeLeave Discharge DistrictofColumbiaNews