Court ruling makes investigating whistleblowers easier

The U.S. Court of Appeals for the Federal Circuit issued a decision on April 8 that would pave the for federal agencies to conduct investigations into employees who blow the whistle on alleged wrongdoing.

The Court sided with an August 2018 ruling from the Merit Systems Protection Board during a case in which a Veterans Affairs director had made a complaint of retaliation against him after he had disclosed financial discrepancies to the Office of Inspector General.

Leonard Sistek, a former Denver-based business director for the VA, had made several whistleblower complaints to the agency OIA beginning in 2012 that funds were being misused.

The MSPB had ruled that agency investigations into whistleblowers did not count as retaliation because they didn’t constitute official personnel action under the Whistleblower Protection Act.

The court backed up that reading in its decision, noting that "based on the plain language of the statute, as further supported by the legislative history, we conclude that retaliatory investigations, in and of themselves, do not qualify as personnel actions under the WPA."

To prove retaliation, employees must show that their agency made a substantive personnel action such as denying the complainant a promotion, lowering their pay, or “ any other significant change in duties, responsibilities, or working conditions,” according to the Federal Circuit Court.

In 2014, Sistek was interviewed about inappropriate workplace relationships, after which he told the OIG that he suspected it was retaliation against him for raising his concerns. He later appealed to the MSPB after the VA reprimanded him for failing to report a subordinate who had an inappropriate relationship with a fellow employee.

The VA later sided with two of his whistleblowing complaints in 2015. Sistek retired from the VA in January 2018.