Federal Circuit: If You Blow the Whistle, Be Professional About It
The Whistleblower Protection Act (“WPA”) prohibits federal agencies from retaliating against an employee for, among other things, disclosing information reasonably believed to be evidence of a violation of any law, rule, or regulation. The Federal Circuit recently clarified that while the WPA protects whistleblowers from punishment for making protected disclosures, a whistleblower can be disciplined for lack of professionalism in the way they make their disclosures.
A doctor joined the Department of Veterans Affairs in August 2010 as a physician in a temporary appointment, which was later converted into a permanent appointment. In 2012, the doctor applied for her facility’s Hospitalist Section Chief position, a position for which VA was prohibited from appointing a non-U.S. citizen unless it was impossible to recruit qualified citizens. The doctor was not selected for the position and a non-U.S. citizen was selected instead.
In the months following her non-selection, the doctor sent several emails to management questioning why she was not selected and criticizing the VA’s selection of a non-U.S. citizen. Several of these emails, however, “transcended civility.” For example, in emails to all facility hospitalists, the doctor accused the Hospital Section Chief selectee of falsifying his work schedule, called the selectee a “total failure at running this group,” and accused several doctors of allowing “harassing schedules” and called for the non-renewal of their appointments. The doctor was then advised to “not disseminate inflammatory and accusatory e-mails regarding” her colleagues and superiors, and was instructed not to contact the then-VA Secretary to express her concerns about the Hospitalist Section Chief hiring process and scheduling practices. Despite these instructions, The doctor continued raising her concerns, including to the then-VA Secretary.
The doctor received a notice of termination on September 11, 2012, based in part on her insubordination to cease disseminating inflammatory and defamatory emails regarding colleagues, creation of a hostile work environment, and for bringing complaints outside of her chain of command. The doctor filed an individual right of action with the Merit Systems Protection Board (“MSPB”). The initial decision found that the doctor’s emails regarding the Hospitalist Section Chief position were disclosures protected by the WPA, yet upheld the doctor’s removal because the Agency showed by clear and convincing evidence that it would have terminated the doctor’s appointment notwithstanding her protected disclosures. The full MSPB Board affirmed the initial decision.
On appeal, the Federal Circuit ultimately agreed with the MSPB’s decision to uphold the doctor’s removal, but made one key clarification—the WPA does not require a protected disclosure to be channeled through a whistleblower’s chain of command. The Court found that “a report of wrongdoing…may not be prohibited nor retaliated against, if made outside the chain of command or even to the head of the agency.” In other words, the WPA protects disclosures falling within the scope of the statute, regardless to whom the disclosure is made. Despite the MSPB’s contrary finding, the Federal Circuit found that this error was harmless.
Regarding the propriety of her removal, though, the Federal Circuit found that the Agency proved it would have terminated the doctor’s appointment notwithstanding her protected disclosures, citing the unprofessional and disruptive nature of her emails. The Court reasoned that even though her emails related to her protected whistleblower disclosures, that did not preclude the Agency from using those emails to support its removal action. The Court made clear that the WPA “protects [the doctor] from being punished for making protected disclosures, not for the way in which she chose to do so.” Therefore, the Agency was permitted to discipline the doctor for her lack of professionalism in the way she communicated her protected disclosures—through inflammatory emails.
The Court acknowledged that not all protected disclosures are made in a polite way. The WPA protects “impolite whistleblowing as much as it protects polite whistleblowing,” and does not contemplate punishment for making protected disclosures in a blunt manner. However, there is a limit to its protection—the WPA cannot shield a whistleblower from being punished for misconduct, including for a lack of professionalism that veers into harassing or hostile language. Because the Federal Circuit agreed that the doctor’s communications crossed the line, it upheld her removal.
Read full case here: Biswas v. DVA
