Saturday, February 07, 2015
burdens of proof in whistleblower appeals, OAA, IRA, MSPB
In whistleblower appeals, you have the burden of proving by a preponderance of the evidence that whistleblowing was a contributing factor in the personnel action threatened, taken, or not taken against you. You may demonstrate that whistleblowing was a contributing factor by showing that the official taking the action knew about the whistleblowing and that the action occurred within a time period such that a reasonable person would conclude that the whistleblowing was a contributing factor in the personnel action, but there are also additional ways to meet this burden. If you are filing an IRA appeal, you must also prove that you exhausted your remedy before the Office of Special Counsel.
If you establish by preponderant evidence that whistleblowing was a contributing factor, the Board will order corrective action unless the agency demonstrates by clear and convincing evidence that it would have taken the same action in the absence of the whistleblowing. The clear and convincing standard of proof is a higher standard than the preponderance of the evidence.