Section 2302(a)(2)(A) of Title 5 of the U.S. Code lists the kinds of personnel actions that may not be taken, or be threatened to be taken, by agencies in response to certain protected activities (e.g., blowing the whistle, cooperating with an Inspector General’s investigation, filing a grievance, etc.).
These actions include appointment, promotion, removal, reassignment, transfer, denial of needed training, and performance evaluation. If taken because of whistleblowing, it would constitute a prohibited personnel practice – retaliation.
In 1994, Congress added two actions to the list: a decision to order psychiatric testing, and “any other significant change in duties, responsibilities, or working conditions.”
That last action, codified at 5 U.S.C. 2302(a)(2)(A)(xi), modified a similar but narrower provision that previously read “any other significant change in duties or responsibilities which is inconsistent with the employee’s salary or grade level.”
The new provision was intended as a catch-all to provide employees and the Office of Special Counsel with a way to counter agencies’ innovative and novel forms of retaliation.
As stated by Rep. Pete McCloskey (D-IN) on the floor of the House of Representatives on October 7, 1994:
H.R. 2970 expands the definition of prohibited personnel practices to include the decision to order psychiatric examination and any other significant change in duties, responsibilities, or working conditions.
Consistent with the Whistleblower Protection Act’s remedial purpose, the provision adding `any other significant change in duties, responsibilities, or working conditions’ to listed personnel actions should be interpreted broadly. This personnel action is intended to include any harassment or discrimination that could have a chilling effect on whistleblowing or otherwise undermine the merit system, and should be determined on a case-by-case basis. Examples include denial, revocation, or suspension of a security clearance; issuing, denying, or removing an employee from specific assignments; changes in duty station; removal of support staff; and any analogous actions taken because of protected activity.
Almost 20 years later, what has been found to constitute “any other significant change in duties, responsibilities, or working conditions”? Here are a few examples:
- Hooker v. Nat’l Aero. & Space Admin., DC-1221-11-0812-W-1, 2012 MSPB LEXIS 1943 (Zamora, 2012) (threatening to change a work location)
- Shibuya v. USDA, DE-1221-09-0295-W-2, DE-0752-11-0097-I-1, DE-1221-10-0390-W-1, 2011 MSPB LEXIS 4275 (Miller, 2011) (relieving the appellant of his duties as branch chief)
- Conti v. Dep’t of Homeland Sec., NY-1221-09-0258-W-2, 2010 MSPB LEXIS 3538 (Booker, 2010) (removal from criminal investigation and relief of all Technical Enforcement Officer duties)
- Tello v. Dep’t of Homeland Sec., DA-1221-10-0137-W-1, 2010 MSPB LEXIS 1397 (Ihekere, 2010) (revocation of the appellant’s authority and decision to place him on administrative duties)
- Schmidt v. HHS, DC-1221-10-0334-W-1, 2010 MSPB LEXIS 3415 (Bogle, 2010) (conjecturing that failing to provide employee with regular work assignments commensurate with his grade level could be a covered personnel action)
- Cloonan v. DOJ, AT-1221-07-0888-W-1, 2007 MSPB LEXIS 7462 (Cummings, 2007) (hypothesizing that a reassignment to a lower-graded position incident to a RIF is a significant change in duties)
- Hawkes v. USDA, SF-1221-06-0415-W-2, 2007 MSPB LEXIS 1367 (Berg, 2007) (removing the appellant from a Health and Safety team)
- Johns v. VA, CH-1221-98-0525-B-1, 95 M.S.P.R. 106 (Board, 2003) (suspension of law enforcement authority, which authorized agent to carry firearms and make arrests)
Similarly, what has not been found to constitute such a change? Here are those examples:
- Whittey v. Dep’t of the Air Force, SF-1221-12-0003-W-1, 2012 MSPB LEXIS 338 (Humphrey, 2012) (no significant change in working conditions based on suspension of security clearance)
- Schwam v. VA, DA-1221-11-0339-W-1, 2011 MSPB LEXIS 4144 (Turbitt, 2011) (a single, isolated incident involving admonishment by supervisor is not a significant change in working conditions)
- Seneca v. HHS, AT-1221-07-0898-W-1, 2007 MSPB LEXIS 8344 (Vitaris, 2007) (denial of a grievance is not a significant change in duties, conditions, or working conditions)
- Hooker v. Dep’t of Homeland Sec., DE-1221-07-0070-W-1, 2007 MSPB LEXIS 1393 (Albornoz, 2007) (agency losing complaint to internal affairs is not a significant change in working conditions)
- Carson v. DOE, AT-1221-06-1125-W-1, 2006 MSPB LEXIS 7725 (Cummings, 2006) (agency reneging on a settlement agreement or failing to process appellant’s grievances are not significant changes in working conditions; same with “rumor campaign” started by colleagues)
- Tiggs v. DOT, DA-1221-06-0546-W-1, 2006 MSPB LEXIS 6661 (Cornelius, 2006) (lack of promotion potential is not a significant change in working conditions)
- Louie v. Dep’t of the Treasury, SF-1221-06-0546-W-1, 2006 MSPB LEXIS 3952 (Reed, 2006) (requirement to check in and out when fulfilling union activities is not a significant change in working conditions)
- Arensdorf v. Dep’t of the Treasury, DA-1221-05-0583-W-1, 2006 MSPB LEXIS 3863 (Carnes, 2006) (temporary change in duties is not a personnel action)
- Hernandez v. Dep’t of the Air Force, AT-1221-05-0856-W-1, 2005 MSPB LEXIS 7044 (Vitaris, 2005) (agency violation of the Privacy Act or the Freedom of Information Act are not significant changes in working conditions)