The Federal Diary
The Federal Diary
Joe Davidson

Court indicates Labor went after employee for whistleblowing activities

Robert Whitmore might have been an ornery old cuss, but that was not reason enough for the Labor Department to leave him in a two-year limbo, followed by a mockery of an investigation that led to his termination.

Whitmore fought back and won.

Joe Davidson

Joe Davidson writes the Federal Diary, a column about the federal workplace that celebrated its 80th birthday in November 2012. Davidson previously was an assistant city editor at The Washington Post and a Washington and foreign correspondent with The Wall Street Journal, where he covered federal agencies and political campaigns.

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Labor and its Occupational Safety and Health Administration ( OSHA) agreed last week to pay him $820,000. He had already collected about $300,000 during his two years of administrative leave when he was not allowed to work.

This means Labor will have paid Whitmore more than $1.1 million, basically because the agency couldn’t figure out a better way to deal with a whistleblower who a court said could be “highly unprofessional and intimidating.”

But what is really troubling are indications that a U.S. government agency would go after an employee whistleblower with a supposedly independent investigation — an investigation that seemed suspect to the U.S. Court of Appeals for the Federal Circuit.

It raises the question: Can federal whistleblowers trust their employer to treat them fairly?

For Whitmore, the answer was no.

The settlement followed a 2012 court ruling that overturned a Merit Systems Protection Board decision upholding Whitmore’s termination. The court said MSPB’s decision by an administrative judge, which the full MSPB board let stand, was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Spokesmen for Labor and MSPB refused to comment on the case.

While the court was pointedly critical of the administrative judge’s decision, evidence cited by the three-judge panel about Labor’s actions against Whitmore is particularly disturbing.

The judges said they found “considerable evidentiary support in the record” to back Whitmore’s contention that after his whistleblowing started in 2005, “the [Labor Department] and various managers at OSHA began to systematically create a hostile work environment for him as retaliation,” in part through “maliciously tampering” with his leave balances, which left him 75 hours short.

At that point, according to the court ruling, Whitmore, a 37-year career employee with good performance reviews, bonuses and awards, “began making public disclosures alleging that OSHA was failing to enforce its recordkeeping requirements and acquiescing in industry reports of impossibly low numbers of injuries and illnesses, which allegedly hampered OSHA’s ability to target inspections and undertake enforcement actions to prevent such injuries and illnesses.”

In April 2005, Whitmore, who was head of OSHA’s recordkeeping requirements group, told the Oakland Tribune that a company’s reported injury rates for a California bridge project were “hard to believe.”

“The record shows,” according to the court ruling, that one of Whitmore’s supervisors told another employee the supervisor “was ‘going after’ ” Whitmore because of his comments to the newspaper.

Things came to a head on July 10, 2007, when Whitmore got into an argument with the supervisor who tampered with his leave balances. The men spit on each other.

A week later, Whitmore was placed on administrative leave, where he languished for two years until after this column wrote about his case in February 2009. According to the court document, the column pushed Labor officials to resolve Whitmore’s case. That led to a April 3 proposal to fire him, charging “disruptive and intimidating behavior, conduct unbecoming a supervisor, and inappropriate conduct in the workplace.” His firing was effective July 31, 2009.

While the record indicates that Whitmore was more aggressive in the spitting argument, the court said it was a matter of degree and that his actions should have been considered in the context of the leave-tampering. The court noted that the supervisor was not disciplined.

After the spitting duel, OSHA hired David Morgan, a former employee, to investigate. Whitmore’s lawyers argued that Morgan was hired not to conduct an impartial investigation but to build a case against their client.

The court ruling cited a chain of e-mails between an OSHA official and Morgan in which “Morgan referred to himself and OSHA collectively as ‘we,’ expressed hope that ‘we’ would ‘kick [the whistleblower’s] ass this time,’ and called Whitmore a “ ‘lying dog.’ ”

In a separate set of e-mails submitted to MSPB on behalf of Whitmore, Morgan again raised doubts about his impartiality by referring to Whitmore’s Washington lawyer, Robert Seldon, and telling an OSHA official, “let’s hope we can kick his ass this time.”

The judges said “the Morgan report is alleged to have been written . . . to avoid the appearance of retaliation, to contain a selective (if not falsified) version of the facts favorable to OSHA. The record contains evidence that supports this view of the circumstances surrounding Morgan’s investigation.”

Indicating apparent collusion between Morgan and OSHA officials, the court said that “although Morgan’s report was purportedly an independent investigation to assist the DOL in its disciplinary determination regarding Whitmore,” a supervisor’s “initial proposal to remove Whitmore in 2007 was authored two days prior to Morgan’s report.”

Morgan did not respond to requests for comment. Labor refused to say whether any employee was subject to disciplinary action because of the retaliation allegations against Whitmore.

The court also criticized the administrative judge, Sarah Clement, for a ruling “that ignores or overlooks essentially all of the evidence offered to support Whitmore’s theory” of the case. Her exclusion of numerous witnesses “caused substantial harm and prejudice to Whitmore’s right and ability to present a complete whistleblower defense,” the court said.

Asked for reaction to the court’s decision, Clement referred questions to MSPB’s general counsel, who did not comment.

“This case stands for the proposition that an agency cannot incessantly harass a whistleblower and then punish him if he or she reacts,” said Paula Dinerstein, senior counsel at Public Employees for Environmental Responsibility, who also represented Whitmore.

Will this decision make agencies treat whistleblowers more fairly?

“We expect,” Dinerstein said in a statement, “that the size of this settlement will bolster the effect of the Federal Circuit decision in deterring federal agencies from retaliating against whistleblowers.”

Twitter: @JoeDavidsonWP

Previous columns by Joe Davidson are available at wapo.st/JoeDavidson.

 
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