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FMA Washington Report: July 11, 2022
MSPB Issues Precedent-Setting Decision Affecting Whistleblower Protections

The Merit Systems Protection Board (MSPB) recently issued a noteworthy decision, Skarada V. Veterans Affairs Department, that impacts civil service protections and whistleblowers.

A Government Executive article summarized the case: “Timothy Skarada, a supervisory physical therapist at the Veterans Affairs Department, alleged in 2013 and 2014 his supervisor was impaired while providing care for a patient. He said he subsequently faced reprisal including his chain of command not communicating with him, excluding him from meetings, subjecting him to frivolous investigations and creating a hostile work environment.

The board, however, found that the post-disclosure actions Skarada faced did not amount to a sufficiently consequential change in duties as required under whistleblower law to qualify as retaliation. Agencies engage in retaliation when they create a "significant change" in duties for someone who blows the whistle, but the board found the changes Skarada alleged did not meet that standard. He failed to show the meetings from which he was excluded were a key part of his job, while other inconveniences did not amount to a hostile work environment, the board found.”

The MSPB, in its Opinion and Order, ruled, “In sum, the appellant’s allegations, collectively and individually, 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.” To read the full ruling, please click here.

The ruling is also significant in its mere existence, as MSPB only recently restored a quorum and its ability to finalize cases, after a gap of more than five years resulting in a huge backlog of cases. Restoring a quorum and returning MSPB to full strength was an FMA issue brief through those years, and we are relieved MSPB is finally again functioning properly and doing its important work.

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