The public needs to read the recent decision by the U.S. Court of Appeals for the Federal Circuit; Robert Wade Whitmore v. Department of Labor, 11-3084.pdf  It’s a story that is compellingly cruel.  Cruelty inflicted using tax payer money.

The contorted case shows how a long time federal service employee was severely mistreated when he spoke up to protect the public.  Moreover, the interview by Richard Renner, National Whistleblowers Center of Whitmore and his attorney, Paula Dinerstein from Public Employees for Environmental Responsibility (PEER) is tragically sad but excellent at breaking down the severity of the whistleblower retaliation against federal workers and the total failure of the Merit System Protection Board (MSPB) to provide basic fundamental fairness and due process of law.  honesty-without-fear-060512

After decades of being rated exemplary in performance reviews, in 2005 Whitmore began to expose the under reporting of accidents, injuries and illnesses of American workers by industry.  He was interviewed by the Oakland Tribune on “questionable worker injury numbers being reported by a bridge construction company that had partnered with California OSHA, which is overseen by federal OSHA.”

Also in 2005, Whitmore provided an affidavit in support of a co-worker who  filed a discrimination claim.  Both the public disclosure of the construction company under reporting injuries and the support of a female filing an Equal Employment Opportunity (EEO) complaint put Whitmore in the whistleblower hot seat.  Evidence showed Whitmore’s management discussed his public disclosure of the Bay Bridge and the EEO complaint pointed directly at a high ranking official. Thus, Whitmore had committed 2 acts of whistleblowing.

Although the EEO case settled, management did not forget that Whitmore came to the aid of a woman.  Nor did they forget that Whitmore was speaking truth to power (The American Tax Payers) about worker safety and injuries under reported to OSHA.  In the interview with Renner, Whitmore describes how if one worker was injured, an entire crew may lose pay for days.  No corporation wants to tangle with a government agency on safety and health issues.  Therefore, corporations provide incentives to employees of everything from pizza parties to bonuses to keep their mouths shut and not report injuries.

The whistleblower retaliation goes on for years as Whitmore continues to raise red flags at OSHA, whose mission it is to protect workers continued to fail.  Whitmore repeatedly cooperated in good faith with the Inspector General (IG), trying to raise awareness on failed missions of the agency, mismanagement, abuse of power and whistleblower retaliation by his superiors.  Confrontations resulted when Whitmore’s immediate supervisor (the subject of the illegal gambling scheme using government property) began to tamper with accrued vacation and sick leave, just to deny Whitmore a day off.

The work place environment grew so hostile, it must have been a circus in the office where Whitmore was subjected to all sorts of intimidation tactics, including physical assaults and name calling.  Despite the attacks, Whitmore continued to do his job, publicly disclosing numerous violations of law.

In 2006, a series of articles published in the Charlotte Observer Whitmore stated; “OSHA was “leaving businesses to police themselves” and had little awareness of the hazards in certain industries.”  More whistleblower retaliation rained down from above and in 2007, Whitmore was placed on administrative leave, sent home with pay, pending a decision to remove him from federal service.

In 2008, Whitmore “testified before Congress regarding the under reporting of workplace injuries and illness, where he accused senior OSHA management of intentionally ignoring fraudulent data submitted by employers.”  Then in 2009, something happened that should open an investigation of conspiracy between the IG and high ranking DOL officials.

An article appeared in the Washington Post concerning Whitmore’s many disclosures.  “The DOL IG saw the article and wrote to the Acting Deputy Secretary, who then spoke to the Deputy Assistant Secretary, stating that the agency needed to “resolve this one way or the other.”  This triggered the removal of Whitmore from federal service.

For the last 3 years, Whitmore has been battling a quasi-court; The Merit System Protection Board (MSPB).  His victory is somewhat hollow because he should never have been removed from federal service, nor further suffered prolonged agony in litigation.  Had the MSPB treated him with fundamental fairness when he stood pro se before the only available judicial body available for federal service workers, his evidence of whistleblower retaliation would have outweighed the DOL’s.  Since he was unrepresented at MSPB, DOL wasted tax payer money to outmatch him with agency counsel.  The MSPB simply rubber-stamped the agency decision throwing Whitmore into unemployment status.

No government employee should be robbed of basic due process of law rights.  Without real rights they are cast aside with little recourse.  I’d speculate that Mr. Whitmore had to exhaust some savings and retirement funds to clear his good name.  I hope that when he goes back to MSPB, he will receive justice, long fought and truly deserved.

Congratulations Mr. Whitmore and Ms. Dinerstein.  You provide hope that one day federal whistleblowers will be applauded, not beaten down.  Perhaps that will happen if the Whistleblower Protection Enhancement Act (WPEA) has the rights deserved and none of the poison pills in the current Bills before Congress.  One such pill is summary judgment powers at MSPB. There could never be a better time for federal whistleblowers to receive justice in real courts, not the clearly biased MSPB.

For more information on problems identified with the WPEA, please contact David Pardo @dpardo@whistlewatch.org or ebrown@whistlewatch.org.  Your comments and questions are welcome.  We are whistleblowers and whistleblower rights advocates.  We are truly non-partisan.

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