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Ex OSHA Employee Can Bring Whistleblower Retaliation Suit

By Tanya Roth, Esq. on May 31, 2012 | Last updated on March 21, 2019

The Department of Labor is supposed to be the watchdog for labor related legal issues in the U.S. but in this case, one of their former employees is accusing the Department of not practicing what they preach.

The case involves classic retaliation claims in connection with an employee's whistleblowing. Whistleblowers are protected under federal law but here, a whistleblower within the Department of Labor was let go, reports Reuters.

The Federal Circuit Court of Appeals is allowing Robert Whitmore, a former head of the recordkeeping group at the Occupational Safety and Health Administration, to bring his claim of retaliation against the Department.

Whitmore claimed that he was fired in 2009 because he publicly criticized OSHA for allowing companies to under-report workplace injuries.

In 2005, Whitmore spoke to the Oakland Tribune about injuries relating to the construction on the Bay Bridge in San Francisco. A year later, he helped the Charlotte Observer look into unreported injuries in the poultry processing industry.

The Department of Labor insisted they fired Whitmore because of his disruptive behavior.

Whitmore had several instances of confrontations at work and in 2007, he threatened one of his supervisors by saying he wanted to "knock him into the basement."

The problem for the Department was that Whitmore had a protected whistleblower status, despite any other potentially disruptive behavior. The disruptive behavior could have subject him to some personnel action or discipline, but firing him was not the best option. The Federal Circuit Court of Appeals found that the lower tribunal failed to look at whether Whitmore would have faced the same discipline had he not been a whistleblower.

The court also found that the original fact finders failed to look into whether or not Whitmore's actions were provoked by the Department.

The case will now be sent back to the Merit Systems Protection Board for further review.

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