By Jeff Lewis
Former FAA Air Traffic Controller
Washington is stuffed with advocacy groups and a Congress eager to pass or obstruct new whistleblower protection laws for federal employees, including the Whistleblower Protection Enhancement Act (WPEA). But what many people don’t know is that in 2002, Congress passed another law known as the NoFEAR Act, short-title for the “Notification and Federal Employee Anti-discrimination and Retaliation Act.” The emphasis is on protecting whistleblowers from retaliation!
My personal story is that I worked for 22-years as an FAA air traffic controller. At my first assignment there was a TV set wired into a cabinet in the tower cab. It became a causal factor for a near-midair collision when a coworker was distracted watching the NCAA basketball playoffs on a sunny Saturday. The incident was swept under the rug and never investigated. I realized then that had I been pressured, I would not lie to cover this up and shared this realization with coworkers. None of them took umbrage with my concerns. In fact, most appeared happy I was speaking up, so they did not have to.
While I did not see any retaliation from coworkers, I did see an immediate and hostile reaction from my employer. It was years later before I understood what was happening. I was a threat simply because I had spoken up – both for what I had already said, and for what else I might say in the future. Thus, three years into my proud new FAA career, I began to learn about whistleblowers, why they are needed and how they are mistreated.
A decade later, at another small tower, a mid-air collision occurred between a helicopter and a Cessna. A supervisor was working and failed to make necessary traffic calls. Both flights had departed, right in front of the tower, and both climbed. A minute later, the propeller on the Cessna struck the skids on the helicopter. Later that day, I saw the Cessna parked on the ramp. The last inch or so of the aluminum propeller was rolled back or ‘q-tipped.’ Had the Cessna pilot not reacted at the last second, both aircraft would have rained down upon a local park and residential neighborhood. We were lucky that day. But what shocked me was another significant incident was being swept under the rug, willfully. So I spoke up. Thus, I incurred renewed wrath from FAA officials.
The NoFEAR Act was intended to protect federal whistleblowers who work for the American people. Two of its requirements (see sec. 101, items #7 and #8) were to make agencies submit annual reports to Congress, and force agencies cover the cost of a judgment or settlement, with a payment to the Judgment Fund of the U.S. Treasury. It was believed this law would “…enable Congress to improve its oversight over compliance by agencies…” and “…improve accountability with respect to discrimination and whistleblower laws….” (As it happens, I only recently stumbled into the annual reporting requirement after reading postings on federal whistleblower rights published on Whistlewatch.org and on other sites.)
The NoFear Act seems simple enough. Compel federal agencies to pay for their failures to protect employees for wrongful discrimination and whistleblower retaliation then report annual performance to Congress, the Equal Employment Opportunity Commission and the Attorney General. Clear steps toward improving accountability. So, from the perspective of an FAA whistleblower, I wondered if the NoFEAR Act was successful. If not, why?
In my humble opinion, the public law designed to protect federal whistleblowers has failed because some agencies don’t submit the required annual report and those who do report, are not being required to produce tight performance metrics. Agencies can easily dodge accountability and Congress has not been stepping up to do their job of assertive oversight. A law is on the books for 10 years, yet no one in Washington seems to care whether a federal agency violates this law.
You see, I was fired just 6-months prior to becoming eligible for my age-50 retirement pension. Seeking to right a wrong, I have done lots of research. In regard to the NoFEAR Act, I was especially curious to find NoFEAR Act Annual Report data online for the FAA. Well, despite the fact that FAA has roughly 50,000 employees, they are just a component agency within the Department of Transportation (DoT). So, the FAA NoFEAR Annual Report data is ‘batched’ with data from FHWA, FRA, and a dozen or so other transportation-related agencies. Thus, I could not look at solid FAA No Fear Act data.
When I looked at the entire series of DoT NoFEAR Annual Reports, I found some very disturbing trends, including:
- · The number of overall EEO cases in which whistleblower reprisal is alleged has trended upward, and has nearly doubled from 2004 to 2011.
- · The number of Federal Court Cases in which whistleblower reprisal is alleged has likewise recently surged; it averaged 7 per year from 2006-2010, but exploded to 40 cases in 2011.
- · The number of Federal Court Cases in which age discrimination is alleged has also recently surged; it averaged less than 6 per year from 2006-2010, but exploded to 35 cases in 2011.
- · One metric which may be used as an index of accountability, is to track the total number of days of suspension issued. This peaked at 234 suspension-days in 2006, then decayed downward to 85-days (in 2007), 55-days (in 2008), 14-days (in 2009), and 5-days (in 2010). The trend finally reversed in 2011, when 76-days of suspensions were issued.
In summary, complaints have increased, while suspension days have decreased. It appears that agencies are comfortable that nothing bad will happen if their lower managers choose to reprise against whistleblowers or discriminate against older employees.
It is very well known that some older employees, perhaps owing to their experience and maturity, or to a desire to find pride in the latter years of their chosen career, become increasingly inclined to speak up and blow the whistle. It is also known that a retirement-eligible employee is a good target for hostile and disparate treatment, if only because they may retire, should they endure enough retaliation hell.
All of the metrics, as reported in the DoT NoFEAR Annual Reports, indicate that FAA and other DoT agencies are pressuring older employees and whistleblowers through improper management misconduct. This problem is not abating, instead it is growing.
Moreover, NoFEAR Act does not go far enough. Not even close. Federal employees have a patchwork of quasi-judicial entities such as MSPB, FLRA, OSC or the DOJ. A whistleblower sees a problem and speaks up to fix it. But, the programs that evolved to support that whistleblower instead put him or her into a dizzying tail spin. In recent years, MSPB has wandered so far off course from “merit systems protection” it effectively is nothing more than a rubber-stamp for Agency retaliation.
NoFEAR Act was the right idea, but needs to be fully supported by Congress and administrative agencies chartered with duties of protecting whistleblowers. And, it needs to be improved with enhanced whistleblower protection laws that hold management accountable for violating the law. Below is a copy of the No Fear Act.
CEO Note: A serious concern of public health and safety identified by Jeff. I wonder if insurance companies, owners of aircraft, federal investigators and the like are aware that some mid-air collisions are the fault of the FAA but the evidence has been concealed. Imagine the tragic consequences had the pilot of the Cessna not reacted so swiftly. Would anyone at the FAA other than Jeff step forward? Have people died due to FAA negligence?
As Jeff’s article discusses there was a television set for employees to watch while on duty. Imagine what is happening now where screens are small on phones and tablets. We’ve seen the carnage of text messaging while driving cars and in train accidents. What about a flight disaster?
Jeff further reinforces the refusal by federal agencies to obey the No Fear Act. Based on our review of the data and that from other experts, the Act is a total failure with zero prosecution of officials who violate federal law. The result is that we are losing some of our best civil service employees who are expert older workers.
Tragically Jeff’s experience is yet another example of an ethical employee who reports wrongdoing only to find the goal of management is not to correct the problems but to silence the whistleblower. It’s much easier to push a valuable older worker like Jeff out the door via a forced settlement agreement, neatly timed to cut short retirement eligibility than to hold management accountable.
Imagine how you would feel at 50+ facing a legal battle that may take 5-10 years, which is typical. You’d be without pay, benefits and resources. You may have to cash in savings and retirement funds to pay a lawyer. You won’t get another job quickly because after all you were fired by the federal government despite trumped up charges. A potential new employer may not want to add an older worker to their organization because they may have pre-existing medical condition. Besides, what employer wants an employee who is battling the federal government. It might bring scrutiny on the new employer.
It takes an incredible amount of courage to take on the most powerful employer on the planet, the U.S. Government. Represented by thousands of attorneys at federal agencies and the Department of Justice (DOJ) at the federal circuit should a federal employee case survive a suffocation attempt at the MSPB or a complaint at the inequitable EEOC.
The U.S. Government has an unlimited budget financed by tax payer dollars. But what the people don’t know is that there is no litigation budget for federal agencies to discriminate and retaliate against employees. The money being used is diverted from budgets allocated by Congress for the health, safety and the welfare of the American people. In essence, money for roads, clean water, fraud prevention, safe drugs, food, airline safety and national security is short changed because federal agencies spending tax payers’ hard earned cash on harming whistleblowers. At last count, Billions post NoFear Act in 2002!
Federal employees are career crushed every day, meaning they are fired or forced into early retirements because they blew the whistle. This way federal agencies curtail free speech to members of Congress and the media through use of Fear tactics. Fear keeps mouths closed. From what we can see, Fear of losing your livelihood is the most powerful psychological weapon.
A perfect example of Fear being used to intimidate a whistleblower is the recent case of Dr. Michael Tilus, a Public Health Officer at the Department of Health and Human Services (HHS). A full on character assassination was in motion to shut him up with a series of reprimand documents suddenly added to his otherwise perfect personnel record. When the media drew attention to his plight, HHS removed the falsified documents. A criminal conspiracy existed at HHS. This is happening over and over again to federal employees everyday yet, no government official is investigating how bad is the problem.
I can assure everyone that as long as the Internet exists, we will expose the wrongdoers, praise the truth tellers and work hard to enhance whistleblower protections. Thanks to Jeff for speaking truth to power!