The Merit Systems Protection Board said a series of small actions could add up to retaliation against a whistleblower, but not in this case.

The Merit Systems Protection Board said a series of small actions could add up to retaliation against a whistleblower, but not in this case. DNY59 / Getty Images

Being Left Out of Meetings or Yelled at Isn’t Always Enough to Claim Whistleblower Protections

Still, MSPB says it will broadly interpret civil service laws to cumulatively examine management’s actions.

Federal employees can be left out of meetings, berated and subjected to general unprofessional conduct by management after shining a light on wrongdoing and still not be entitled to whistleblower protections, a panel tasked with enforcing those laws has ruled. 

The newly fully constituted Merit Systems Protection Board issued a key, precedent-setting decision in Skarada v. Veterans Affairs Department with broad implications for civil service protections. In a boon to whistleblowers, the board reiterated that it will take a broad definition of whistleblower reprisal to protect federal workers who shed a light on wrongdoing. Potential retaliatory actions by management must be examined both collectively and individually, said the board, which just this month received its third and final Senate-confirmed member to its central panel. Though the actions in this case did not reach the threshold for retaliation, the board said that in other instances a series of smaller actions could potentially add up to retaliation. 

Timothy Skarada, a supervisory physical therapist at the Veterans Affairs Department, alleged in 2013 and 2014 his supervisor was impaired while providing care for a patient. He said he subsequently faced reprisal including his chain of command not communicating with him, excluding him from meetings, subjecting him to frivolous investigations and creating a hostile work environment.

The board, however, found that the post-disclosure actions Skarada faced did not amount to a sufficiently consequential change in duties as required under whistleblower law to qualify as retaliation. Agencies engage in retaliation when they create a "significant change" in duties for someone who blows the whistle, but the board found the changes Skarada alleged did not meet that standard. He failed to show the meetings from which he was excluded were a key part of his job, while other inconveniences did not amount to a hostile work environment, the board found.

“His chain of command may have been unresponsive to his requests or untimely in providing guidance, but such deficiencies do not amount to harassment,” the board wrote. “In addition, the three alleged incidents involving yelling were spread out over the course of a year and, while unprofessional, were not sufficiently severe or pervasive to significantly impact the appellant’s working conditions.”

The board added that the investigations to which Skarada was subjected were "likely inconvenient" but not "overly time consuming" and appeared routine. Other grievances Skarada noted were "mere disagreements over workplace policy." 

“In sum, the appellant’s allegations, collectively and individually, while perhaps indicative of an unpleasant and unsupportive work environment, do not establish, by preponderant evidence, that he suffered a significant change in his working conditions.”

While the board rejected Skarada’s claims, it made clear that, as a general matter, harassment and discrimination that could have a chilling effect on whistleblowing would constitute reprisal. The board said it would broadly interpret the definition of such behavior, which would include creating a hostile work environment. 

MSPB regained a quorum—and its ability to decide cases—on its central board earlier this year after five years without one when the Senate confirmed Ray Limon and Tristan Leavitt. Cathy Harris became the third board member earlier this month, allowing the board to finally rule on cases on which Limon and Leavitt had not agreed. The board is facing down a backlog of more than 3,000 cases. 

Before Harris joined the board, Leavitt and Limon had noted in multiple precedential rulings the board was taking a "broader view of retaliatory motive” in whistleblower cases. They have allowed appellants to indict managers for improper retaliation solely on the presumption they acted out of the concern for the well-being of their agency, even if they were not directly implicated in the relevant disclosures.

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.