What Kind of “Significant Change” in Working Conditions Protects Whistleblowers?
This case law update was written by Conor D. Dirks, an attorney at the law firm of Shaw Bransford & Roth, where since 2013 he has represented federal officials and employees in all aspects of federal personnel employment law. In addition to his work on behalf of government employees, Mr. Dirks has successfully defended small and medium-sized government agencies against EEO complaints and MSPB appeals of agency disciplinary actions.
Renzo Velez | POGO
The law recognizes that managers retaliate against a whistleblowing employee by taking or threatening to take a “personnel action.” One of the hardest to pin down, but most commonly cited, agency actions defined by whistleblower law as a “personnel action” is a “significant change in duties, responsibilities, or working conditions.” The Merit Systems Protection Board (MSPB), the agency tasked with adjudication of whistleblower retaliation appeals for federal employees, recently issued its decision in Skarada v. Department of Veterans Affairs, and provided a framework for deciphering whether a change in duties, responsibilities, or working conditions is significant enough to constitute a “personnel action” covered by federal whistleblower law.
The Whistleblower Protection Act covers a broad range of “personnel actions” under its definitions in 5 U.S.C. § 2302(a)(2)(A). Some of these actions are obvious and easy to understand: an appointment, a promotion, a reassignment, a performance evaluation, a decision about pay, or a disciplinary action like a termination. The final listed “personnel action” is “any other significant change in duties, responsibilities, or working conditions.”
As the Board noted, the legislative history of this statutory provision indicates that Congress meant for it to be interpreted broadly to include “any harassment or discrimination that could have a chilling effect on whistleblowing or otherwise undermine the merit system,” and that it “should be determined on a case-by-case basis.” But notwithstanding that broad interpretation, the courts have found that not all agency actions qualify as a “personnel action” subject to coverage by whistleblower protections. As the Board pointed out, in the late 1990s, the Federal Circuit Court of Appeals held in King v. Department of Health & Human Services that the action “must have a practical consequence for the employee.”
Interpreting the Federal Circuit’s language, the Board in Skarada has now held that “to amount to a ‘significant change’ … an agency action must have a significant impact on the overall nature or quality of an employee’s working conditions, responsibilities, or duties.”
Many employees, like the employee in Skarada, allege that no single action created a significant change in working conditions, but that a slew of actions considered together created a hostile working environment that significantly altered working conditions. The Board in Skarada acknowledged that “hostile work environment” allegations can form the basis of a “personnel action” under the statutory provision discussed here, but that it must meet the statutory criteria. In other words, it must actually constitute a “significant change in duties, responsibilities, or working conditions.”
Thus, the Board set about determining whether the agency’s alleged actions were “significant,” and found that they were not.
Here, the employee alleged that as a result of his protected whistleblower disclosures, his managers: removed some of his previous duties and responsibilities, subjected him to a hostile work environment by ignoring him in the office, claiming they did not know the answers to his questions, failed to provide him guidance, became visibly angry with him and yelled at him. Finally, the employee alleged that the agency convened investigations against him in 2013 and 2015.
The Board found that these allegations, some of which were supported by affidavits from witnesses, nevertheless did not establish that the agency’s actions significantly and practically impacted his working conditions. According to the Board, although his “chain of command may have been unresponsive to his requests or untimely in providing guidance…such deficiencies do not amount to harassment.” The Board also held that the “three alleged incidents” of “yelling” were spread out over the course of a year and “while unprofessional,” did not significantly impact the employee’s working conditions.
The investigations, the Board held, “although likely inconvenient, were not overly time-consuming, did not result in any action against the [employee] or follow-up investigation, and appear to have been routine workplace inquiries.” Otherwise, the Board said, the employee’s allegations amounted to “mere disagreements over workplace policy.”
Thus, “the appellant’s allegations, collectively and individually, while perhaps indicative of an unpleasant and unsupportive work environment,” did not establish “that he suffered a significant change in his working conditions” covered by whistleblower protection law.
For the above stated reasons, the Board denied the employee’s whistleblower appeal and request for corrective action.
Read the full case: Skarada v. Department of Veterans Affairs.
For over 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.