Fedweek

The hearing officer concluded that the disclosure was protected under the law but ruled that the actions did not qualify as reprisal. Image: Lightspring/Shutterstock.com

Not all forms of negative personnel actions against a whistleblowing federal employee constitute retaliation that is banned by whistleblower protection law, the MSPB has said.

Case No. 2022 MSPB 17 involved a VA employee who had made a disclosure regarding quality of patient care and who then alleged that officials retaliated by subjecting him to a hostile work environment such as by excluding him from regular meetings he previously had attended, refusing to provide guidance he requested and yelling at him.

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After the Office of Special Counsel declined his request to bring a complaint to the MSPB, the employee did so himself under the “individual right of appeal” authority. The hearing officer concluded that the disclosure was protected under the law but ruled that the actions did not qualify as reprisal.

On appeal, the MSPB noted that among the actions that may be considered reprisal under the Whistleblower Protection Act are a “significant change in duties, responsibilities, or working conditions” — a phrase it said should be interpreted “broadly.”

However, it said that “only agency actions that, individually or collectively, have practical and significant effects on the overall nature and quality of an employee’s working conditions, duties, or responsibilities, and are likely to have a chilling effect on whistleblowing or otherwise undermine the merit system will be found to constitute a covered personnel action.”

It said the actions at issue did not meet that standard, finding for example that the meetings from which the employee was excluded were “collateral” to his duties and there was no evidence of his level of participation in them.

It added: “His chain of command may have been unresponsive to his requests or untimely in providing guidance, but such deficiencies do not amount to harassment. 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.”

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