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.