MSPB Rules Creation of Hostile Work Environment Violates WPA

September 8, 2015. In a precedent setting decision, Savage v. Department of the Army, 2015 M.S.B.P. 51 (Sept. 3, 2015), the Merit Systems Protection Board (MSPB) ruled that the creation of a hostile work environment standing alone violates the Whistleblower Protection Act (WPA). The WPA provides protection to federal workers who blow the whistle on fraud within the federal government.

The whistleblower in this case, Tommie Savage, was a highly respected contracting officer at the Army Corps of Engineers Huntsville, Alabama Support Center. Savage, had decades of outstanding performance reviews, promotions, and the highest achievement awards for contracting. In 2006, she detected a pattern and practice of illegal contracting activity resulting in millions of dollars of contracting fraud in the Army's "Ranges Program" and reported it.

Savage's report of fraud triggered an onslaught of retaliatory behavior toward her from her supervisors and co-workers. Savage was removed from her position, issued downgraded performance reviews, denied performance awards, subjected to insensitive racial statements, hostility by the Huntsville Command, subjected to harmful gossip, and faced raised voices by her deputy commander. The work environment became increasingly hostile. It was so hostile that it resulted in documented psychological injury to Savage and caused her to be incapable of returning to work. She was terminated in 2009 due to her extended absences. The Corps failed to present evidence that her psychological injury was not caused by the hostile work environment.

In the initial decision of the Administrative Law Judge determined that Savage was subjected to retaliation by being issued an improperly downgraded 2007 annual performance review, the failure to confer a monetary award; and the issuance of a 2008 down-graded performance review but found that Savage failed to prove she was constructively discharged. The MSPB found that the administrative judge "did not consider the possibility that [Savage's] extended absences might never have occurred but for the agency's alleged retaliatory actions in creating a hostile work environment." The MSPB concluded that the creation of a hostile work environment alone is a sufficient basis to invoke protection under the WPA.

Michael Kohn, the President of the National Whistleblower Center and a founding partner of Kohn Kohn & Colapinto LLP, represents Savage released the following statement:

"Tommie Savage is the epitome of a dedicated contracting officer acting in the best interests of the taxpayer. The Army Corps of Engineers needs to acknowledge that it harassed a whistleblower to the point of causing permanent psychological injury. It is time the Corps did the right thing and welcome Ms. Savage back with open arms."