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When are collective or individual acts against a whistleblower retaliatory?

On Behalf of | Aug 15, 2022 | MSPB, Whistleblower Protection

Today we look at a recent precedential Merit Systems Protection Board (MSPB) decision about federal-employee whistleblowers and retaliatory treatment. Now that the U.S. Senate has confirmed a third board member who began service on June 1, the Board is fully staffed for the first time in more than five years.

As we have explained, the absence of a working MSPB has been difficult for many federal employees with pending claims. For whistleblowers, resolution in their favor could mean reinstatement to federal jobs wrongly lost through termination or demotion, potential financial awards such as for back pay or other remedies.

Retaliation under the whistleblower laws

On June 22, the board issued its opinion in Skarada v. Department of Veterans Affairs in which it found that Timothy Skarada, a physical therapist for the VA, had not provided enough evidence of retaliation against him as a whistleblower for reporting that his supervisor had allegedly provided deficient patient care. The decision provides guidance for future whistleblowers seeking to present strong cases of retaliation.

Federal whistleblower law applies to a federal employee who made protected disclosures about workplace wrongdoing based on their reasonable belief when their whistleblowing was a contributing factor toward negative, covered personnel action their federal employer took against them. The statute defines personnel actions broadly, including a specific list of examples followed by the catch-all “any other significant change in duties, responsibilities, or working conditions.”

For a retaliatory personnel action to fall within whistleblower law, it must “have practical consequences for the employee.” The opinion concluded that a significant change means an agency action with a “significant impact on the overall nature or quality of an employee’s working conditions, responsibilities, or duties.” The Board emphasized that the federal employer actions must be considered “both collectively and individually.”

Skarada alleged a collection of negative supervisory actions that happened after he reported about his supervisor:

  • Removal from some significant responsibilities
  • Cessation of communication
  • Undeserved investigation
  • Exclusion from meetings, conversations and interviewing new hires
  • Lack of guidance and support
  • Refusal of salary review request
  • Being yelled at and spoken to inappropriately
  • Hostile work environment
  • Accusations of fabrication and of privacy violations

The MSPB found that taken collectively, these allegations could constitute a significant change in working conditions. Even if not individually rising to a significant change, the combined impact of multiple minor employer acts can amount to a significant change in workplace conditions and covered personnel action for whistleblower purposes.

In addition, Skarada’s allegation that his whistleblowing was a contributing factor to the personnel action satisfied the “knowledge-timing test.” This test allows a contributing-factor finding if the person who took the action against the employee knew about the whistleblowing and took the action within a time period that a reasonable person would presume was retaliatory.

Allegations sufficient, but not the evidence

The Board found that Skarada failed to submit “preponderant evidence” to support the claim. A preponderance of evidence is “the degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.”

The Board felt evidence of “significant change” to Skarada’s job was insufficient, wanting to see documentation of how the personnel actions made significant change to his job. Specifically, because the official job description did not include all of the responsibilities the employee alleged he had lost, the MSPB said the employee should have submitted information that would allow measurement of the changes from before the whistleblowing to after – evidence of the level of participation in meetings, interviews and classes before the whistleblowing so the Board could understand the degree of what was allegedly lost.

Additionally, the MSPB said that the evidence did not show significant change in work conditions either individually or collectively. Instead, while the degree of harassment alleged included unresponsiveness, untimeliness, unprofessionalism and inconvenience, the allegations “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 …”

Important takeaways

The lessons from this decision underscore the importance of early involvement of an experienced attorney who is intimately familiar with the applicable legal standards, the nuances of MSPB decisions and the development of crucial evidence of agency reprisals against a whistleblower client.

Whistleblower cases are determined case by case and are factually unique. Especially when the federal employee needs to show significant change in working conditions by the collective impact of multiple employer actions, a lawyer can undertake a comprehensive investigation to uncover the myriad of evidence needed to support the whistleblower claim of retaliation.



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