CRS-8

Protection Act of 1986," Serial No. 99-54, 99th Cong., 2d Session (1986).

The

burden of proof of determining a "retaliation" for a protected disclosure is on the employee, In re Frazier, 1 MSPB 159 (1979), aff'd Frazier v. MSPB, 672 F.2d 150, 164-65 (D.C. Cir. 1983); Hagmeyer v. Department of Treasury, 757 F.2d 1281, 1284 (Fed. Cir. 1985), and where no direct evidence or statements exist may be difficult of proof. In "disciplinary action" cases against officers who allegedly retaliated against employees for protected whistleblowing disclosures, which are intended to provide significant deterrence to such retaliatory actions, the courts have required a showing of a wrongful "retaliatory intent" on the part of the acting official, and have required a determination of the official's "state of mind" to "insure that the motive for the adverse action was an improper one," that is, primarily to punish the employee or deter him from making protected disclosures. Starrett v. Special Counsel, 792 F.2d 1246, 1253-1255 (4th Cir. 1986); see also Harvey v. M.S.P.B., 802 F.2d 537 (D.C. Cir. 1986). In these cases where there is an independent, and arguably, legitimate management objective, other than primarily punishment or deterrence for whistleblowing, in taking or not taking an action regarding an employee, then the court might not uphold a disciplinary action against such official taking those personnel actions even when based in part on the

disclosures made.

Starrett, supra at 1254; Harvey, supra at 547-548. It is possible that a court may find that a breach of a non-disclosure or secrecy agreement by an employee provides such an independent and valid or "legitimate" management reason for taking a personnel action under such an analysis. But see Warren v. Department of Army, 804 F.2d 654, 658 (Fed. Cir. 1986), concerning an employee appeal of an adverse action "Chapter 77 appeal" where it was found that the "independent" grounds "considered in the proceeding (must) not include the 'protected disclosures' themselves."