Pursuing a whistleblower retaliation case is a multi-step process. The specific steps will depend on the law that was violated. However, the basic steps are the same for most whistleblower cases:
- File a whistleblower complaint.
- Exchange information and evidence with your opponent.
- Present your case to a decision-maker.
Here’s an overview of these basic steps in the process.
Step 1: File a whistleblower complaint.
The first step is filing a complaint. At a minimum, your complaint should include the following components (See our previous blog for more details on each component):
- Your contact information
- Information regarding your status and right to file the complaint
- The name of the law that you believe was violated
- The identity of the person who or entity that retaliated against you
- A description of your protected disclosure or whistleblower activity
- A description of the retaliatory action or treatment
- An explanation of why you believe the action or treatment was retaliatory
- A list of the damages you are seeking
However, you may need to include additional information, depending on who you’re filing the complaint with and what law was violated. In some cases, you may need to submit a specific complaint form or format your claim in a particular way. For example, if you’re a federal employee filing a whistleblower claim under the Whistleblower Protection Act, you must submit your claim in one of two ways:
- MSPB appeal: If you have the right to appeal the retaliatory action directly to the MSPB (removal, demotion, suspension of more than 14 days, etc.), you should file an appeal with the Board within 30 days. You can file your appeal through the MSPB’s website, or by submitting a completed appeal form by fax or mail.
- OSC complaint: If you don’t have direct MSPB appeal rights, you must file a complaint with OSC. You can file the whistleblower complaint through OSC’s website. The online complaint filing system will guide you through the process and prompt you to enter the required information.
Other types of whistleblower claims have different procedures. For example, under the False Claims Act, you must file a complaint in court. If you’re filing a qui tam case (you’re suing on behalf of the government), you must file the complaint under seal and send a special disclosure notice to the U.S. Attorney General and the appropriate U.S. Attorneys.
No matter who you file your complaint with, it’s important to make sure you follow the right procedure and include all required information. Otherwise, your complaint could be dismissed from the start.
Step 2: Exchange information and evidence.
If you file in court or with an administrative agency like the MSPB, you may have the right to a hearing or trial, where you can present evidence. If there may be a hearing or trial, you parties will likely have the opportunity to exchange documents and information. This is sometimes called the discovery process. During this discovery process, the parties may ask each other to answer questions and provide documents relating to the case. The parties may also have the right to take depositions of key witnesses. This is a key step in the process. The information and documents you exchange become the evidence in your case.
Step 3: Present your case to a decision-maker.
Once you have completed discovery, the final step is to present your case to a decision-maker. The way you present your case will depend upon the decision-maker. For example, if you filed your claim with the MSPB, you have the right to present witnesses and documentary evidence at an in-person hearing.
But if your case is in a state or federal court, you may not automatically have the right to a live hearing or trial. Frequently, the defendant files a motion for summary judgment, which is a written request for the judge to make a decision without a trial. In basic terms, the defendant argues that based on all the evidence in the case, there’s no way you can prove whistleblower retaliation. Unless you prove that a reasonable jury could decide you were retaliated against, the judge can deny you a trial and rule in favor of the defendant.
Why should you hire a whistleblower attorney?
As you can see, whistleblower retaliation cases have complicated requirements and procedures. An experienced whistleblower attorney can help you navigate this process. A trusted legal advisor will prepare and submit filings, determine what information and documents to request in discovery, and make the best possible legal arguments to the decision-maker.
For more than 20 years, Alan Lescht and Associates has successfully represented employees. Whether you are thinking about filing a claim or you feel you are being targeted for blowing the whistle, our team of experienced whistleblower attorneys are here to help. During a consultation, we will evaluate your case, discuss your options, and develop a strategy to assert your rights. Alan Lescht and Associates offers legal services to private sector and state and local government clients in Washington, DC, Maryland, and northern Virginia, and to federal employees around the world. Contact us today.