Federal Circuit Holds MSPB Exclusion of Whistleblower’s Evidence Constitutes Harmful Error

June 1, 2012 - Comments Off

On May 30, 2012, the United States Court of Appeals for the Federal Circuit in Whitmore v. Department of Labor gave United States Department of Labor (“DOL”) whistleblower Robert Whitmore a second chance to prove that he was unlawfully terminated for publically airing his concerns that the agency was underreporting workplace injuries.  The decision underscores both the vital role that whistleblowers play in society, as well as the critical need to properly enforce the laws implemented to protect them.

Whitmore was a 37-year veteran of the DOL who was fired after publically disclosing his concerns that the Occupational Safety and Health Administration (“OSHA”) arm of the DOL was underreporting workplace injuries.  Whitmore challenged his removal at the Merit Systems Protection Board (“MSPB”), alleging that his removal violated the Whistleblower Protection Act (“WPA”).  After conducting an investigation, the MSPB concluded that while Whitmore engaged in whistleblowing activity, he had also exhibited highly unprofessional, disruptive, and at times violent, behavior in the office that justified the agency’s decision to remove him.  Whitmore appealed the decision to the Federal Circuit.

The issue before the Court on appeal was whether the Department of Labor (“DOL”) carried its burden under the WPA of showing by clear and convincing evidence that it would have removed Whitmore regardless of his protected disclosures.  The WPA prohibits retaliation against a federal employee who blows the whistle on a federal agency.   Analysis of a whistleblower defense under the WPA occurs within a burden-shifting scheme.  Under this approach, the agency charged with unlawful retaliation must show, inter alia, by clear and convincing evidence, that it would have removed the employee regardless of the protected disclosure.

The clear and convincing standard of proof is a high burden, and is understood as being reserved to protect particularly important interests in a limited number of civil rights cases.  In determining whether evidence clearly and convincingly supports a conclusion, a court must consider all of the pertinent evidence in the record and cannot solely rely on the evidence that supports the conclusion reached by the agency.

In evaluating Whitmore’s claim, the Court found that the MSPB relied almost exclusively on evidence that supported the DOL’s decision to remove Whitmore for inappropriate and disruptive behavior, while ignoring evidence that would enable Whitmore to present a complete whistleblower defense.  Specifically, it concluded that the AJ’s decision to categorically exclude eight of Whitmore’s twelve witnesses was an abuse of discretion.  In making this determination, the Court focused on the relationship between the purpose for which Whitmore was offering the witnesses against and the factors the Court is uses to evaluate whether the government has met its burden.  Finding that Whitmore’s eight excluded witnesses were to testify to the potential biases inherent in the investigation of Whitmore’s claims, as well as DOL’s failure to discipline similarly situated employees, the Court concluded that the AJ’s actions prevented Whitmore from effectively presenting his defense and constituted harmful error.

Although it is unknown what the ultimate outcome of the case will be on remand, this decision is of critical importance to the whistleblower community, both for underscoring the important role that whistleblowers play in society, as well as reminding courts of the need to be vigilant to ensure that the whistleblowers’ full story is heard.  For more information on whistleblower law, please visit the Whistleblower Law page on our website.

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