Whistleblower retaliation through a hostile federal work environment
The creation of intolerable, cruel working conditions can equal whistleblower retaliation.
Because of their jobs, federal employees sometimes uncover illegal or unethical practices occurring within their agencies or in other parts of government. Federal law encourages such workers to report unlawful activity to keep our government processes honest and operating in accord with the law.
When an employee blows the whistle on wrongdoing within the federal system, federal law protects the whistleblower from retaliation by those responsible for or involved in the prohibited activity, or by supervisory or managerial colleagues. Federal-employee whistleblowers are courageous and patriotic for what they do, but the illegality they report may put bad actors at risk of job loss or even criminal liability. The stakes for reporting can be high, and a whistleblower may truly need serious protection.
Whistleblower retaliation can take many forms. The whistleblower’s supervisors may unfairly discipline or terminate them, give undeservedly poor performance reviews or references, or be deprive them of training or promotion opportunities without reason. But a more subtle type of retaliation is the creation of a hostile work environment around the whistleblower.
How might a hostile work environment constitute retaliation?
The Merit Systems Protection Board (MSPB) is a federal agency that decides appeals of federal workers who feel they have been wrongfully disciplined, terminated or otherwise negatively targeted in their jobs. The MSPB issued a key opinion in 2015 setting the legal precedent that a hostile work environment created to harm a whistleblower can constitute illegal retaliation under the federal Whistleblower Protection Act (WPA).
Tommie Savage was a prominent supervisory officer at an Alabama Army Corps of Engineers Support Center. She managed the business of federal government contracts skillfully and was recognized for her professional success. In 2006, she uncovered and reported systemic fraud and conflict of interest in federal contracting that was costing the government millions. Authorities investigated and validated her allegations.
What happened next was nightmarish. Savage filed a complaint alleging “harassment and a hostile work environment because of her race and sex.” After settling this matter, she took a reassignment to the local Small Business Office where previously stellar performance reviews became average.
She also blew the whistle on alleged violation of federal regulations there. After a “heated discussion” with her boss, her psychologist advised a two-month leave because of “intensifying depression, anxiety and work caused stress.” This leave stretched into months of time away and even a consulting psychologist concluded it was unlikely that she would work at the Small Business Office again.
The case was procedurally and legally complicated and lasted several years. In a subsequent 2022 appeal, the MSPB quoted Savage’s treating psychologist as diagnosing “severe depression and intensified anxiety related to her work environment”, noting Savage’s fearful feeling the workplace was hostile and unsupportive. The psychologist felt that the “work environment has produced” Savage’s acute stress disorder and major depression disorder, including headaches, nightmares and anxiety attacks.
The MSPB said that her several leaves and times away from work amounted to constructive suspension because it was an involuntary response to “intolerable conditions.” Savage alleged understaffing, being left out of meetings and omitted from emails, brutal racially charged comments from a supervisor, hostile behavior toward her from colleagues, unrealistic job assignments, omission of her professional comments from meeting minutes and being screamed at by a supervisor.
The agency was “culpable for subjecting [Savage] to the hostile work environment that resulted in her incapacitation,” so her absence was not voluntary and a constructive suspension, concluded MSPB.