Federal Circuit: “Retaliatory” Investigations Not Personnel Actions Under WPA
A Department of Veterans Affairs medical center director made multiple protected disclosures to the VA Office of Inspector General about agency spending and contracts in October 2013. He repeated those concerns in a conference call in January 2014. His second line supervisor was on that conference call. The second-line supervisor, several weeks later, appointed an Administrative Investigation Board (AIB) to investigate inappropriate relationships with subordinate staff, and investigators treated the medical center director as a subject of that investigation.
In July 2014, the agency found that the medical center director failed to act and investigate allegations of an inappropriate relationship between a colleague and the colleague’s subordinate. The medical center director was disciplined, but the discipline (a letter of reprimand) was rescinded. The medical center director filed an Individual Right of Action (IRA) claim for corrective action with the Merit Systems Protection Board, alleging that the investigation was launched and the reprimand was issued in retaliation for his whistleblowing. An MSPB administrative judge denied corrective action, and the medical center director appealed. On April 8, 2020, the United States Court of Appeals for the Federal Circuit affirmed the MSPB decision holding that a retaliatory investigation is not a qualifying “personnel action” under the Whistleblower Protection Act.
The appeals court observed that for an agency action to merit corrective action, the Board must find: (1) that there was a disclosure or activity protected under the WPA; (2) there was a personnel action authorized for relief under the WPA; and (3) the protected disclosure or activity was a contributing factor to the personnel action. The question in this case was whether an investigation, even if retaliatory, can satisfy the second requirement for a claim for corrective action. The statute, at 5 U.S.C. § 2302(a)(2)(A) defines the set of qualifying personnel actions, listing eleven specific actions.
The appeals court noted that “investigation” is not one of the listed actions, and inferred that Congress likely intentionally excluded retaliatory investigations from “the scope of personnel actions authorized for relief under the WPA.” The appeals court also held that legislative history bolstered that inference. Therefore, the court held that retaliatory investigations, in and of themselves, cannot qualify as “personnel actions” under the WPA, even under the catch-all provision.
However, the appeals court did hold that a retaliatory investigation, “either on its own or as part of a broader set of circumstances, may qualify as a personnel action if it rises to the level of a ‘significant change in…working conditions,” as in a hostile work environment. The appeals court did not find a significant change in working conditions here, finding that one interview plus a letter of reprimand that was later rescinded and expunged did not rise to that level.
For the above stated reasons, the United States Court of Appeals for the Federal Circuit affirmed the decision of the MSPB Administrative Judge.
Read the full case: Sistek v. Department of Veterans Affairs.
This case law update was written by Conor D. Dirks, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.