In Myers v. Department of Army, No. DA-0752-12-0396-I-3, 2015 MSPB 58 (November 2, 2015), Stephanie Myers, a Diagnostic Radiologic Technologist of Mammography, appealed the Army’s decision to remove her, claiming that the Army did so in retaliation for her whistleblowing. In order to succeed on this affirmative defense, Myers had to show by a preponderance of the evidence that she made a protected disclosure under 5 U.S.C. § 2302(b)(8), and that the disclosure was a contributing factor in the agency’s personnel action. Myers, 2015 MSPB 58, ¶ 22. A protected disclosure includes “any disclosure…to the Inspector General of an agency…of information which the employee…reasonably believes evidences…gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health and safety.” 5 U.S.C. § 2302(b)(8)(B)(ii).
In Myers’s complaint to the Inspector General, she claimed her first-line supervisor was harassing her, and her first- and second-level supervisors were involved in an inappropriate relationship. Her harassment claims consisted of a decision by her first-line supervisor and the Chief Radiologist to place her on a retraining program following her return from maternity leave, and to issue her a negative performance evaluation. The MSPB has found that allegations of harassment by a supervisor may constitute an abuse of authority. Myers, 2015 MSPB 58, ¶ 14 (citing Herman v. Department of Justice, 115 M.S.P.R. 386, ¶¶ 11-12 (2011) (explaining that an abuse of authority occurs when there is an arbitrary or capricious exercise of power by a Federal official or employee that adversely affects the rights of any person or results in personal gain or advantage to himself or preferred other persons); Murphy v. Department of Treasury, 86 M.S.P.R. 131, ¶ 6 (2001)).
The Board concluded that Myers’s harassment claims constituted an abuse of authority. The Board found that the Agency’s decision in February 2011 to require Myers to undergo retraining was not justified. The Agency had prepared a Memoranda for the Record citing to Myers’s conducting two suboptimal mammograms which resulted in two patients being recalled. Myers, 2015 MSPB 58, ¶ 15. But, as the Board noted, although the recalls occurred in December 2010, the Agency did not prepare the MFRs until April 11, 2011 and April 25, 2011–which was after Myers complained to the Chief Radiologist on April 8, 2011 about the harassment of her first-level supervisor and the inappropriate relationship between her first- and second-level supervisors, and after she informed him of her intent to file a complaint with the Inspector General. Id. at ¶ 16. The Board also found significant that Myers had received a within-grade increase on January 2, 2011, which was at odds with the Agency’s decision to place her on a retraining program on February 23, 2011. Id. at ¶ 17.
The Board also concluded that the Agency’s decision to issue Myers a negative performance evaluation on March 25, 2011 was harassment, given that she successfully challenged the negative evaluation in a grievance, which resulted in elevations of her grades in two critical elements. Id. at ¶ 18.
So far, so good for Myers. But she did not fare so well when it came to her claim that her first- and second-line supervisors were engaging in an inappropriate relationship, which she believed constituted an abuse of authority. “We have held that it is an abuse of authority for a supervisor to give preferential treatment to a subordinate with whom he or she is having an intimate relationship.” Myers, 2015 MSPB 58, ¶ 23 (citing Sirgo v. Department of Justice, 66 M.S.P.R. 261, 266-67 (1995)). In her Inspector General complaint, Myers alleged only that she felt “uncomfortable” bringing her concerns about the hostile work environment to her second-level supervisor’s attention; she did not allege that her second-level supervisor had given her first-level supervisor preferential treatment, or had otherwise exercised his authority in an arbitrary or capricious manner. Id. at ¶ 23.
If the facts of Myers’s case included her second-level supervisor giving preferential treatment to her first-level supervisor as a result of their supposed intimate relationship, and had Myers’s complaint to the Inspector General included the necessary “preferential treatment” language, she may well have succeeded at showing the Agency retaliated against her for making a protected disclosure of abuse of authority concerning the improper relationship.
At least Myers succeeded with making one of her showings that she made a protected disclosure of an abuse of authority, and the Agency retaliated against her as a result of that disclosure. The Board ordered the Agency to cancel the removal, and to retroactively restore her to her prior position. Id. at ¶ 31.
Dianah Rose-Stanley, on the other hand, was not afforded any relief. Ms. Rose-Stanley, a nurse at the Virginia Department of Corrections (VDOC), alleged that the VDOC discriminated and retaliated against her, in violation of the Virginia Human Rights Act (Virginia Code Annotated § 2.2-3900 et seq.) and Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000e et seq.) when it reassigned her from a pharmacy nurse position to a building nurse position, and when it transferred her to a facility more than an hour and fifteen minutes away from her home. Rose-Stanley v. Commonwealth of Virginia, No. 2:15CV00007, 2015 WL 6756910, at *1 (W.D. Va. Nov. 5, 2015). The Court quickly dispensed with her claims under the Virginia Human Rights Act, since the VDOC has more than 15 employees, and "the VHRA only creates a private cause of action against employers with more than five but fewer than fifteen employees," and the VHRA only "creates a private cause of action for former employees who were discharged from employment." Id. at *4 (citing Va. Code Ann. Sec. 2.2-3903(B)).
Nor did Rose-Stanley’s claim of discrimination under Title VII survive. The court found, as a matter of law, that her reassignment and transfer from one facility to another were not adverse employment actions. “‘An adverse employment action is a discriminatory act which adversely affect[s] the terms, conditions, or benefits of the plaintiff’s employment.’” Id. at *5 (citation omitted). “Unless the change has caused a significant detriment, ‘reassignment to a new position commensurate with one’s salary level does not constitute an adverse employment action even if the new job does cause some modest stress not present in the old position.’” Id. (citation omitted). Additionally, the court noted, “‘incurring small, additional commuting expenses is not the type of adverse employment action that is cognizable under Title VII.’” Id. (citation omitted). The facility to which Rose-Stanley was being transferred was over one hour and fifteen minutes away from her home, Rose-Stanley, 2015 WL 6756910, at *2. She had previously worked at that facility, but in 2002, asked that she be transferred to her current facility so she could be closer to her family. The VDOC granted her request. The court found that her additional commuting time and expenses could not be considered unreasonable, given that she had previously voluntarily worked at the far-away facility. Id. at *5.
Nor did the court find that the VDOC unlawfully retaliated against Rose-Stanley in violation of Title VII by reassigning her to a less favorable position and by transferring her to the far-away facility. Rose-Stanley claimed that the VDOC made the decision to reassign and transfer her, in retaliation for her complaining about the Director of the Medical Department and how the medical department was being managed. She voiced her complaints during three “dialogue meetings,” which were designed to allow lower-level staff members to voice concerns to management. Id. at *1. One of her concerns was that management was giving medical department employees very little notice when they were required to change shifts or duties. Id. She also alleged that prior to her transfer, she threatened to complain to the warden about her reassignment to a building nurse position. The court concluded that Rose-Stanley’s complaints did not amount to protected activity under Title VII because she never mentioned any perceived sex-based discrimination. Id. at *6. The court explained that Title VII’s anti-retaliation provisions cover an employee’s opposition to an unlawful employment practice, and participation in an investigation or proceeding regarding an unlawful employment practice. Id. (citing 42 U.S.C. § 2000e-3(a)). Because Rose-Stanley did not allege that she told her supervisor or anyone else she believed she was being subjected to discrimination on the basis of her sex, the complaints she made at the dialogue meetings did not constitute protected oppositional activity. Id.
The results may have been different had the VDOC’s actions been pled as unlawful retaliation under Virginia’s Fraud and Abuse Whistle Blower Protection Act, Virginia Code Annotated § 2.2-3009 et seq. Under that Act, no state employer may “discharge, threaten, or otherwise discriminate or retaliate against a whistle blower.” Va. Code Ann. § 2.2-3011(A). A whistle blower is an employee who witnesses or has evidence of wrongdoing or abuse, and who makes a report of wrongdoing or abuse. Va. Code Ann. § 2.2-3010. “Abuse” includes “an employer’s or employee’s conduct or omissions that result in substantial misuse, destruction, waste, or loss of funds or resources belonging to or derived from federal, state, or local government resources.” Va. Code Ann. § 2.2-3010.
If VDOC’s failure to give medical department employees little notice when they were required to change shifts or duties resulted in a substantial misuse, waste, or loss of funds or resources, Rose-Stanley’s complaint of retaliation could possibly have been brought under Virginia’s Fraud and Abuse Whistle Blower Protection Act. Sometimes, fact patterns cause employees’ cases to fall between the cracks of employment statutes designed to protect employees. This may have been the unfortunate circumstance for Ms. Rose-Stanley.
However, there are glimmers of hope in the employment law arena. In DeMasters v. Carilion Clinic, No. 13-2278 (4th Cir. Aug. 10, 2015), the Fourth Circuit joined the Sixth Circuit in concluding that the “manager rule” has no place in Title VII enforcement. Under the “manager rule,” even if a plaintiff had otherwise engaged in oppositional conduct, he or she could not qualify for protection under Title VII because he or she had a duty to report such conduct. Id. at 25-26. The Fourth Circuit explained that the “manager rule” runs counter to Title VII’s broad remedial purpose. Id. at 32.
Victories are possible, even in the context of the vagaries of employment law.
Written by Valerie A. Chastain