Huang was suspended from her position as a federal employee at the Department of Homeland Security (DHS) for fourteen days after threatening to file a whistleblower complaint against her supervisor, who she alleges improperly administered her Performance Improvement Plans (PIPs). Federal employees are placed on PIPs to correct poor performance. Huang was placed on two PIPs within forty-five days. During the second PIP, Huang told her supervisor in writing that she would be “making a whistleblower complaint” and threatened to sue if her supervisor did not drop the PIP. Huang filed an unsuccessful complaint with the Office of Special Counsel, seeking protection under the Whistleblower Protection Act.
She appealed to the Merit Systems Protection Board. The Board found that Huang did have a clear case of whistleblower retaliation based on the DHS’s perception of her as a whistleblower. However, the Board denied Huang’s appeal holding that the DHS showed clear and convincing evidence that they would have suspended Huang regardless of that perception.
Huang appealed to the Court of Appeals for the Ninth Circuit, who affirmed the Board’s decision. The Court of Appeals decided that the Board was correct when they found no evidence of retaliatory intent. They agreed that the DHS provided clear and convincing evidence that they would have suspended Huang even without her specific whistleblower threat.
Attorney Kirk J. Angel did not represent this federal employee, but he does represent them in claims before the MSPB, EEOC and the federal courts. You may need a federal employee whistleblower attorney.