In Whitmore v. Dept. of Labor, Fed. Cir. No. 2011-3084 (May 30, 2012), the U.S. Court of Appeals for the Federal Circuit reversed the decision of an administrative judge (AJ) of the Merit Systems Protection Board who had sustained Whitmore’s removal. Whitmore had claimed, among other things, that he was fired in retaliation for protected whistleblowing and in reprisal for protected EEO activity.

In reversing the MSPB decision, the Federal Circuit found that the judge had improperly excluded evidence that would have permitted Whitmore to prove his claims. In so doing, the Federal Circuit has reinforced some important tenets of the Whistleblower Protection Act (WPA) and provided new guidance on what types of evidence are relevant to WPA claims.

Whitmore had been a long-time employee of the Department of Labor, with a record of above-satisfactory performance, bonuses and awards, until eventually being reassigned to the Occupational Health and Safety Administration (OSHA). In 2005, Whitmore began making public disclosures alleging that OSHA was failing to enforce record-keeping requirements and accepting industry reports which showed impossibly low numbers of injuries and illnesses. In addition, Whitmore provided an affidavit in a co-worker’s EEO complaint. Shortly after, Whitmore’s performance appraisals were lowered. In the following two years, Whitmore made additional whistleblowing disclosures and tension between him and his supervisors continually increased until July 2007 when he was placed on administrative leave due to an altercation with his supervisor. Whitmore continued to make disclosures, and he was ultimately terminated in 2009.

After placing Whitmore on administrative leave, OSHA conducted an investigation into his actions. Evidence suggested, however, that the investigation was not impartial, but was intended to build a record against Whitmore and that favorable evidence was excluded. This report was then relied upon in the decision to terminate Whitmore.

At the MSPB, the AJ excluded witnesses offered by Whitmore to show that the investigation was biased. The AJ also excluded witnesses who would testify about more favorable treatment toward other employees who engaged in similar behavior and would testify about OSHA’s bias against whistleblowers. The AJ then sustained Whitmore’s removal, finding the agency’s evidence was strong and that there was not a retaliatory motive, because the proposing and deciding officials were outside Whitmore’s chain-of-command and were not directly implicated in any of Whitmore’s whistleblowing disclosures. The AJ also rejected Whitmore’s disparate treatment argument.

The Federal Circuit held that the AJ had improperly excluded Whitmore’s witnesses and that doing so was an abuse of discretion. Whitmore was, the court held, entitled to present witnesses to show that the investigation into his conduct was biased. The court found that it was also an abuse of the discretion to exclude witnesses to show agency bias against whistleblowers. Excluding witnesses as was done here "prevents whistleblowers from effectively presenting their defenses, and leaves only the agency’s side of the case in play."

The Federal Circuit also reversed the AJ’s finding that the evidence did not show retaliatory motive. The AJ based that decision on the facts that the proposing and deciding officials were outside Whitmore’s chain-of-command and had only limited knowledge of his whistleblowing activities. The court found the judge’s interpretation of the evidence unduly restrictive. The court rejected the notion that decision-makers must be implicated in the whistleblowing in order to be motivated to retaliate. The court stated that "those responsible for the agency’s performance overall may well be motivated to retaliate even if they are not directly implicated by the disclosures, and even if they do not know the whistleblower personally, as the criticism reflects on them in their capacities as managers and employees." Being outside the chain-of-command is an insufficient reason to remove the possibility of retaliation.

The Federal Circuit also found that MSPB precedent had interpreted too narrowly who was a "similarly situated" employee, important for purposes of Whitmore’s disparate treatment argument. It is not necessary for employees to be nearly identical to be similarly situated, the court held.

Last, the court found "glaring" omissions from the judge’s decision. The judge failed to discuss Whitmore’s argument that beginning in 2005 the agency created a hostile environment as retaliation, and that the stress of the retaliation cased Whitmore to act the way he did. The judge also failed to include any discussion of the facts and circumstances showing how Whitmore’s whistleblowing in 2005 marked the beginning of his strained relationships with his supervisors, and how his disclosures paralleled his increasingly poor performance reviews and adverse personnel actions. According to the court, "the AJ did not consider the possibility that the conduct upon which Whitmore’s removal was premised might never have occurred but for the DoL’s retaliatory actions creating a hostile work environment for Whitmore." This evidence must be considered, otherwise "any agency could take retaliatory action against whistleblowers by creating a hostile work environment for the whistleblower until the whistleblower acts out, then lawfully remove the whistleblower under the pretext of that later conduct."

As a result of the AJ’s failures, the court set aside the MSPB’s judgment and remanded the case for further introduction and analysis of all relevant evidence. This case is a very important decision because it details the type of evidence which may be relevant to a whistleblower claim and rebukes the Board for its narrow interpretations of what evidence is relevant to show retaliatory motive.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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