The U.S. Court of Appeals for the District of Columbia this week affirmed a decision to dismiss a federal whistleblower's case, primarily because the whistleblower suffered no "materially adverse" action. Baloch v. Kempthorne, No. 07-5330 (Dec. 30, 2008).
Since 1991, Mohammad Baloch has worked for the U.S. Department of Interior as a Water Rights Specialist in the Bureau of Indian Affairs. Baloch had filed an administrative complaint of employment discrimination. Thereafter, his managers decided to fill a long-vacant position and they transfered half of Baloch's work to the new co-worker. Baloch's supervisors also imposed new restrictions on his use of sick leave (although no such leave was actually denied), and his supervisor yelled at him four times in eight months.
The court held that hiring the co-worker was not a materially adverse action. The Court noted that in the past it has held that diminishing an employee's work responsibilities is an adverse action. Czekalski v. Peters, 475 F.3d 360, 364 (D.C. Cir. 2007). In this case, however, the quality of Baloch's responsibilities did not go down -- only the amount of work assigned to him. The Court did not want to engage in “judicial micromanagement of business practices” by second-guessing employers’ decisions about “which of several qualified employees will work on a particular assignment.”
The Court also held that since the added sick leave requirements did not result in any denial of sick leave, it was not "material." Similarly, the Court categorized the yelling as "sporadic" and declined to enforce any workplace civility code.
The Court of Appeals did disagree with the district court's consideration of how Baloch continued to make complaints even after these alleged adverse actions. The district court concluded that Baloch's continued protected activity showed that the adverse actions did not deter such activity. This is a frequent defense raised by employers who would obviously prefer that their employees not complain about any illegality they see. In Baloch's case, footnote 5 on page 12, the Court of Appeals noted that the Supreme Court requires courts to use an objective standard. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). Therefore, whether Baloch was or was not deterred in raising his concerns is immaterial to the question of whether the employer's actions would deter other employees from coming forward. This is an important conclusion that should do away with employer claims based on the whistleblower's courageous continuation of protected activities in the face of alleged retaliation.
The Court also noted that the employer had a legitimate reason for making the new hire. The co-worker was a lawyer who could handle legal work for the Department and help with the Department's budgeting. The Court of Appeal said that Baloch did not present evidence tending to show that this reason was a pretext for discrimination.