Archive for June, 2013

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Feds to pay OSHA whistleblower $820,000 settlement

By Ames Alexander

Posted: Wednesday, Jun. 05, 2013
    Bob Whitmore, former chief of OSHA’s recordkeeping division, testifying at a 2008 Congressional hearing about companies that fail to report workplace injuries. He’s holding a photo that appeared in the Observer’s “Cruelest Cuts” series, which showed how one N.C. poultry company masked the extent of workplace injuries.

The U.S. Department of Labor will pay former OSHA official Bob Whitmore $820,000 – one of the largest federal whistle-blower settlements ever approved – under a deal that will end his four-year fight against the government.

The settlement is a major victory for Whitmore, who says he was fired because he publicly criticized his agency for allowing companies to underreport workplace injuries.

Whitmore, formerly the Occupational Safety and Health Administration’s top official for record keeping, was fired in 2009 after speaking to Observer reporters who were investigating dangerous conditions and workplace injuries in the poultry industry.

“I think Bob paid a very big price for people injured in the workplace,” said Robert Seldon, a Washington lawyer who represented Whitmore. “The government paid a bigger price with a landmark settlement.

“There are people who are not going to get killed or injured in the workplace because of Bob Whitmore.”

Whitmore, who worked for the Labor Department for 37 years, filed a complaint against the agency under the Whistleblower Protection Act, a 1989 law designed to protect federal employees who report misconduct by their agencies.

Under the settlement, approved Wednesday by the U.S. Merit Systems Protection Board, Whitmore agreed not to seek employment with the Labor Department for 15 years.

“I regret that I’m not going to get the opportunity to finish what I set out to do,” said Whitmore, who turns 66 on Thursday. “That will bug me.”

But Whitmore said he hopes his settlement will encourage other prospective whistle-blowers. “Hopefully it will give people who are contemplating this (the) courage to go forward and do the right thing,” he said.

Hidden injuries

Whitmore contended that OSHA wanted to silence his criticism and stop his push for a more aggressive approach with employers who underreport workplace injuries.

In years past, OSHA’s leaders pointed to declining injury rates as proof of the agency’s success.

But in interviews with the Observer – and in a later congressional hearing – Whitmore alleged that OSHA allowed employers to underreport workplace injuries by failing to punish companies that cheat.

His comments were included in a 2008 Observer series, which showed the human cost of bringing chicken and turkey to America’s dinner tables and documented how one North Carolina poultry company hid workplace injuries.

OSHA said it dismissed Whitmore because he made colleagues feel unsafe at work.

In 2007, he confronted a supervisor who he said spit on him. When the supervisor attempted to close the door, Whitmore stuck his foot in and said that if he ever spit on him again he would “knock him into the basement.”

A Labor Department spokesman declined comment Wednesday, saying the agency does not publicly discuss personnel issues.

A win for whistle-blowers

The settlement follows a 2012 ruling by the U.S. Circuit Court of Appeals, in which Judge Jimmie Reyna called Whitmore a “bona fide whistle-blower.” That ruling vacated an earlier decision by the MSPB, which had upheld Whitmore’s dismissal. Reyna argued that the board had ignored or overlooked evidence to support Whitmore’s contention that he was fired out of retaliation.

The MSPB hears complaints from federal employees who feel they have been unfairly treated or fired. In the large majority of complaints, the board has ruled in favor of the federal agencies.

The appeals court’s decision on the Whitmore case “significantly helped” federal employees who claim they faced retaliation for whistle-blowing, said Carolyn Lerner, who heads the U.S. Office of Special Counsel, the agency responsible for protecting government workers who expose wrongdoing.

“It made clear that the government faces a steep legal burden when trying to defend such retaliatory actions and it also ensured the whistleblowers have a fair opportunity to rebut the government’s defense,” Lerner said Wednesday.

Some settlements are confidential, so it’s not always clear what the federal government agrees to pay out in such cases. But Seldon, the attorney for Whitmore, said the largest previously disclosed settlement appears to be the $755,000 that the Securities and Exchange Commission agreed to pay to Gary Aguirre, an SEC lawyer who was fired in 2005.

The size of the Whitmore settlement will likely get the attention of many federal officials, said Paula Dinerstein, a lawyer who has represented Whitmore.

“It sends a message to employers: Retaliate against whistle-blowers at your peril,” said Dinerstein, senior counsel for Public Employees for Environmental Responsibility, a nonprofit that advocates for government workers.

Alexander: 704-358-5060

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