Marcato v. United States Agency for International Development, No. 19-1041 (D.C. Cir. 2021)Annotate this Case
USAID administers the government’s foreign development assistance program. OIG, USAID’s oversight arm, includes Offices of Investigations and of Management. In 2012, OIG hired Marcato to the management office. Marcato frequently alleged misconduct by high-ranking officials, reporting within OIG that officials had doctored reports sent to Congress. She repeated those allegations to Senate staffers, prompting unfavorable media coverage. Marcato interfered with Giacalone's investigative work. Her supervisors met with Marcato to explain a protocol for Marcato in speaking to Giacalone or entering the Investigations workspace. Marcato recorded the meeting on her cell phone, despite a USAID security policy barring the unauthorized use of such a device. Marcato continued to contact Giacalone and violated the protocol several times. She sent e-mails that prompted concern over disclosures of sensitive information. An investigation of Marcato’s conduct, including her e-mail disclosure, cell phone recording, and failure to follow the communications protocol, was conducted by the OIG of the Defense Department because Marcato “self-identified as a whistleblower.” Defense substantiated four instances of misconduct. Marcato’s removal noted that Marcato’s disclosures “could have jeopardized the integrity” of an ongoing criminal investigation” and that confidence in Marcato had been “irreparably damaged.”
The D.C. Circuit affirmed the Merit Systems Protection Board's rejection of her claims under the Whistleblower Protection Act. A federal agency may defend an adverse personnel action taken against a whistleblower by showing that it would have taken the same action in the absence of any protected disclosures.