Federal Appeals Court Rules For OSHA Whistleblower

Finding overwhelming evidence of retaliation, a unanimous federal appeals court has ruled in favor of the U.S. Occupational Safety & Health Administration's top expert and foremost critic on workplace injury and illness records, according to the decision posted today by Public Employees for Environmental Responsibility (PEER). This new ruling may lead not only to the full restoration of the whistleblower but also make it more difficult for agencies to harass internal critics to the breaking point and then use any resulting intemperance as a pretext for removing them.

For nearly 25 years, Robert Whitmore was the top OSHA official overseeing OSHA recordkeeping requirements before he was put on paid administrative leave for more than two years, and then finally terminated in 2009. In congressional testimony and news articles, Whitmore had become increasingly vocal in criticizing the steady decline in the accuracy of mandated industry reports of on-the-job accidents and illnesses, as well as his agency's aversion toward enforcing its own recordkeeping rules.

In its May 30, 2012 ruling, the U.S. Court of Appeals for the Federal Circuit found that OSHA managers -

• Plotted to "get" Whitmore for embarrassing the agency;
• Procured and embellished statements in a trumped-up investigation used to justify his removal; and
• Fired Whitmore for being part of a loud dispute with a co-worker but took no action against the co-worker for actions similar to those of Whitmore.

While his removal was upheld by the Merit Systems Protection Board, the Federal Circuit struck down the MSPB action as "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law." The Court found that the prior MSPB opinion "ignores or overlooks essentially all of the evidence to support" Whitmore and that the administrative judge improperly excluded "considerable countervailing evidence." The Court remanded the case "for consideration of all the evidence" in "further proceedings not inconsistent with this opinion."

"We are gratified by this ruling which correctly holds agencies to a very high standard for justifying adverse actions taken in connection with protected whistleblowing," stated PEER Senior Counsel Paula Dinerstein, who argued the case for Whitmore. "Government agencies do not have a license to hound whistleblowers until they snap and then fire them for snapping."

The case is also striking for the involvement of top OSHA managers, many of whom are still with the agency, in the campaign against Whitmore. Perhaps not ironically, OSHA has also struggled with systemic failure to adequately administer the 22 whistleblower laws it enforces to protect whistleblowers in the private sector in settings ranging from construction sites to Wall Street boardrooms.

"OSHA cannot protect American workers from illegal workplace reprisal until it starts protecting its own staff," Dinerstein added. "Given the cascade of evidence of retaliatory motive and the singling out of Whitmore, we would hope OSHA would finally do the right thing and resolve this case."