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