Earlier this month, the U.S. Department of Labor (DoL) settled a whistleblower claim brought by Robert Whitmore, a former DoL recordkeeping official, for $820,000. Mr. Whitmore alleged that he complained that the DoL failed to adequately monitor and enforce its record-keeping requirements—thereby affording employers the opportunity to under-report on-the-job injuries and illnesses—and was discharged as a result of his complaint.
Background
Mr. Whitmore began his career with the DoL in 1972, and served as the Directorate of Evaluation and Analysis for the Office of Statistical Analysis from 1990 until he was discharged in 2009. In 2005, Mr. Whitmore began commenting to the press about OSHA recordkeeping requirement enforcement and claimed DoL “acquiesc[ence] in industry reports of impossibly low numbers of injuries and illnesses, which allegedly hampered OSHA’s ability to target inspections and undertake enforcement actions to prevent such injuries and illnesses.” Whitmore v. DoL, MSPB No. DC0752090890-I-1, at 3 (May 30, 2012). That year, Mr. Whitmore also “provided an affidavit supporting a co-worker… in her Equal Employment Opportunity (“EEO”) complaint for alleged discrimination and retaliation by her managers at OSHA.” Id. Mr. Whitmore alleged that, shortly after providing the affidavit, his supervisor changed his performance review from “highly effective” to “meets expectations,” marking the first time in 35 years that he failed to receive “outstanding” or “exceeds expectations” on a review. Id. at 4.
Over the next two years, Mr. Whitmore continued to issue public disclosures (e.g., serving as a source for a Charlotte, North Carolina newspaper’s series on “non-reported injuries in the poultry processing industry”), sent “emails highly critical of if not hostile to [his supervisor], copying his staff as well as OSHA officials[,]” and had disputes with his supervisors. Id. at 4–5. After a 2007 confrontation with his supervisor allegedly devolved into a “spitting match,” DoL placed Whitmore on administrative leave. Id. at 8. While on leave, “he testified before Congress regarding the underreporting of workplace injuries and illness, where he accused senior OSHA management of intentionally ignoring fraudulent data submitted by employers.” Id. at 11. In 2009, after the Washington Post published an article on his disclosures, DoL allegedly removed Mr. Whitmore from his position for “Disruptive and Intimidating Behavior, Conduct Unbecoming a Supervisor, and Inappropriate Conduct in the Workplace.” Id. at 12.
“[Mr.] Whitmore challenged his removal at the [Merit Systems Protection Board ("MSPB")], alleging that the removal was an act of retaliation for his whistleblowing disclosures under 5 U.S.C. § 2302(b)(8).” Id. at 13. Further, he alleged retaliation for his EEO testimony under 5 U.S.C. § 2302(b)(9). Id. at 13-14. The MSPB determined that DoL met its burden and established that Mr. Whitmore “would have been removed regardless of his whistleblowing disclosures.” Id. at 17.
The Court of Appeals for the Federal Circuit, however, determined that the MSPB improperly “excluded or ignored evidence offered by Whitmore necessary to adjudicate Whitmore’s retaliation claim. . . [,]” and that MSPB, therefore, incorrectly held that “DOL had proven by clear and convincing evidence that Whitmore would have been removed regardless of his whistleblowing disclosures. . . .” Id. at 2. The court vacated and remanded to the MSPB.
A few days before the rehearing, the parties settled the action for $820,000.
Implications
This sizeable settlement may signal the beginning of rigorous recordkeeping review by the DoL. Thus, employers should be sure to carefully scrutinize record-keeping policies and procedures to ensure accurate reporting, not only of on-the-job injuries and illnesses, but of disability, veteran, discrimination, and all other DoL recordkeeping requirements. Plus, the fact that the DoL was subject to suit in this action vividly illustrates that whistleblower actions know no boundaries.
