Ruling sets a new governmentwide precedent.
Federal agencies can launch retaliatory investigations against employees who blow the whistle on wrongdoing without violating anti-reprisal laws, a federal court has said in a precedent-setting ruling.
While agencies cannot dock pay, deny promotions or engage in several other retaliatory personnel actions against whistleblowers, investigating a worker who has attempted to shed a light on inappropriate or illegal behavior is allowable, the U.S. Court of Appeals for the Federal Circuit said. Federal whistleblowers have long complained agencies seek to turn the tables on them in an effort to discredit their claims or remove them from their positions.
The case involved Leonard Sistek, who served as a director at a VA facility in Denver. Sistek made multiple disclosures to the VA inspector general protected under whistleblower law, raising concerns about agency spending and “contractual anomalies.” In 2014, Sistek was interviewed by an Administrative Investigation Board examining inappropriate office relationships, during which he realized he was himself subject to an investigation. He notified the IG that he suspected this was in retaliation for his whistleblowing. Later that year, the board cited Sistek for failing to report that a colleague had an “inappropriate sexual relationship” with the colleague’s subordinate, and VA issued a letter of reprimand.
In early 2015, VA rescinded Sistek’s letter and struck it from his record. Later that year, the IG validated two of his claims of department wrongdoing.
Sistek brought a case before the Merit Systems Protection Board, arguing that VA retaliated against him for blowing the whistle. An MSPB administrative judge, however, ruled in VA’s favor, leading him to appeal the decision in the federal circuit court.
To qualify for relief under whistleblower law, employees must demonstrate their agency took a qualifying personnel action such as a denial of an appointment, a pay decision or another "significant change" in duties or working conditions. The MSPB judge ruled, and the appeals court subsequently affirmed, that “a retaliatory investigation, in and of itself, does not qualify as a personnel action eligible for corrective action” under the Whistleblower Protection Act. The court stated further that Congress "acted purposely in excluding retaliatory investigations" from prohibited behavior under the law.
VA was therefore well within its rights to launch an investigation into Sistek, even if it was in retaliation for his disclosures, the court found.
Sistek argued the investigation and subsequent letter of reprimand created a hostile work environment, which amounted to a “significant change” in his working conditions. The court rejected that argument, saying under Sistek’s definition any investigation would create a hostile work environment. Andrew Bakaj, who represented Sistek, said the ruling was actually a positive one for federal whistleblowers, as it held retaliatory investigations do qualify as an impermissible personnel action if they result in significant change in working conditions.
The court noted a retaliatory investigation into an employee who blew the whistle could be subject to additional relief if that employee can prove some other improper personnel action.
Sistek retired from VA in 2018.
This story was updated with additional comment.