Kisala v. Malecky
A state employee who fails to prove that the employee suffered or was threatened with adverse personnel action, in response to the employee's whistleblower report, may not possess a prima facie case of whistleblower retaliation. The Department of Public Health hired the complainant, Nsonsa Kisala, as a health program associate, and Kisala and his supervisor disagreed about his job responsibilities. In or about July 2012, Kisala allegedly issued a generalized complaint to the auditor of public accounts about "violence" and a supervisor's alleged lack of competence. Supervisors required that Kisala meet to discuss his ability to work more collaboratively. Kisala received a counseling letter that stated, "[F]uture failure to perform your duties in a timely, competent, cooperative, and professional manner, may lead to progressive disciplinary action" and less than good performance evaluations. Kisala filed a whistleblower complaint, alleging that he had been threatened with receipt of a poor performance evaluation, in response to his July 2012 whistleblower complaint. The respondents moved to dismiss. In retaliation cases, an adverse personnel action may include any materially adverse action that could dissuade a reasonable worker from making a claim. Allegedly, Kisala's most recent performance evaluation showed ratings of "excellent" or "good" in each category. Kisala admitted that he had been promoted recently. His position, salary and benefits have not been adversely affected as a result of his whistleblower complaint. Although Kisala received suggestions from supervisors to improve his performance, a reasonable worker would not perceive these as threats of retaliatory action that would dissuade a worker from filing a whistleblower complaint. Exhibits established that Kisala was a valued worker who received promotions and good evaluations. "Complainant," wrote Presiding Human Rights Referee Michele Mount, "was not adversely affected, or threatened with an adverse action," pursuant to the reasonable worker standard. He was required to cooperate and to discuss job responsibilities. Kisala failed to establish a reasonable threat of adverse personnel action, as a result of the whistleblower report. The complainant failed to allege a prima facie case, and the human rights referee granted the respondents' motion to dismiss.