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Employment & Labor Law for Public Safety Agencies
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Whistleblower Requirements and Protection
Monthly
Law Journal Article: Blowing the Whistle on Police
Corruption, 2013 (10) AELE Mo. L. J. 501.
Monthly Law Journal Article: Whistleblower
Protection for Public Safety Employees, Part 1, 2016 (2) AELE Mo. L. J. 201.
Monthly Law Journal Article: Whistleblower Protection for
Public Safety Employees, Part 2, 2016 (3) AELE Mo.
L. J. 201.
A 30=year employee of the federal General Services Administration (GSA) received positive evaluations and faced no discipline for most of his career. When he started to complain about the GSA’s allegedly ineffective collection and management practices, his supervisor told him to state his concerns only to his supervisor. When he failed to limit his criticism to only his supervisor, he was suspended, and his relationship with the supervisor deteriorated. Subsequently, he was disciplined for “disrespect” to his supervisor and failing to remove his computer access card from his laptop. The discipline for the access card occurred even though the employee, a quadriplegic, was physically unable to remove the card. The Merit Systems Protection Board (MSPB) found that the GSA had retaliated against him for his repeated disclosure of gross mismanagement. He was a whistleblower under 5 U.S.C. 2302(b)(8), and his protected disclosures were a factor in his eventual removal. The MSPB still upheld the removal, finding that it was justified because there was strong evidence of the employee’s misconduct. It reached that conclusion without examining evidence of the GSA’s motivatation to retaliate or how it treated other similarly situated non-whistleblowers. A federal appeals court vacated that ruling, finding that the MSPB confused two separate issues-- whether the penalty of removal was reasonable and whether the GSA would have imposed the same penalty without the protected whistleblowing activity. Given the employee’s disability and his supervisors’ knowledge that he physically could not remove his computer access card, the GSA’s policy concerning the requirement to take out the card did not apply to him. Smith v. General Services Administration, #18-1604, 2019 U.S. App. Lexis 21401, 2019 WL 3242039 (Fed. Cir.).
A former deputy constable claimed in a federal civil rights lawsuit that his First Amendment rights were violated because he was fired for reporting illegal acts of the constable and others to appropriate law enforcement officials. A federal appeals court found that claims against the county and the constable in his official capacity were barred because the deputy had previously filed a state law lawsuit against the county. The appeals court also upheld dismissal of claims against the constable in his individual capacity, granting the defendant qualified immunity. It ruled that it was not then clearly established that a law enforcement officer’s actions in an investigation with outside law enforcement enjoyed First Amendment protection. The constable was also entitled to qualified immunity on a First Amendment Petition Clause claim because the plaintiff's grievance concerning his firing was not “a matter of public concern” and the plaintiff did not assert that he was treated differently than other similarly situated deputy constables. Harmon v. Dallas County, #18-10353, 2019 U.S. App. Lexis 18627 (5th Cir.).
An EPA Special Agent conducted criminal investigations for almost 20 years He also operated a personal business, selling military collectibles, but failed to report that business, as required, He also allegedly used his government computer for personal business, and tried to intimidate a contractor with whom he dealt in conducting that business. That contractor filed a complaint. The employer then placed him on leave. The Office of the Inspector General cleared him of criminal charges. After his supervisor told him things “looked good” for an eventual return to full duty, he became involved in an investigation into another supervisor, expressing fear of retaliation but stating that that supervisor had been sleeping at his desk and had smelled of alcohol. Others confirmed this, and that supervisor retired. The plaintiff was then investigated for conduct unbecoming an investigator, improperly using his government computer, and failing to report his outside business. Then 11 months shy of retirement eligibility, he was terminated. He argued that his removal was not reasonable and that his statements regarding the second supervisor constituted protected whistleblowing that caused retaliation. In discovery, the EPA produced draft notices of proposed sanctions against him, which identified a different decision-maker than previously identified. The plaintiff sought the emails to which these drafts had been attached, and the EPA sought to “claw back the drafts, “claiming attorney-client privilege. But the EPA produced no privilege log. The Merit Systems Protection Board found the drafts privileged and found that the employee would have been removed even without his protected disclosures. A federal appeals court overturned that result, ruling that the EPA did not prove that the allegedly protected communication was made in confidence to its attorney. The Board “may not simply guess what might happen absent whistleblowing.” Siler v. Environmental Protection Agency, #17-2446, 2018 U.S. App. Lexis 32075 (Fed. Cir.).
The plaintiff held a career executive assignment (CEA) position as chief of the Criminal Intelligence Bureau, part of the California Department of Justice (DOJ). Assignment by appointment to CEA jobs in the state did not confer any rights or status in the position other than provided in Article 9 of the Government Code, Chapter 2.5 of Part 2.6. The rights conferred by article 9 are the rights of all civil service employees relating to punitive actions, except that the termination of a CEA is not a punitive action.” CEA positions are part of the general civil service system, but an employee has no tenure. The plaintiff’s job was to cooperate with local, state, and federal law enforcement agencies to prevent terrorism and related criminal activity. However, he had “not good” relationships with state and federal decision makers. The director and deputy director of the state Office of Homeland Security refused to work with him. His superior decided to terminate his CEA position because of his “dysfunctional relationship" with federal and state representatives, and because of the employee’s hostility toward him. After his firing, the plaintiff sued, reciting a long list of grievances, as well as claiming that certain actions he took in liaising with other state and federal homeland security representatives, then reporting potentially illegal policy proposals, were protected by California whistleblower statutes. The Court of Appeal concluded that the Public Safety Officers Procedural Bill of Rights Act (POBRA) protections concerning investigation, interrogation, and administrative appeal did not apply to the termination and that he was not protected as a whistleblower as he did not disclose or report a violation of law. Manavian v. Dept. of Justice, #CO77843, 2018 Cal. App. Lexis 1012.
A staff attorney for a state agency sued her supervisor for unlawful First Amendment retaliation. A federal appeals court ruled that it lacked jurisdiction to hear an interlocutory appeal from the denial of qualified immunity to the supervisor because existence of qualified immunity depended on resolution of factual disputes as to whether the employee was told to make false statements as to the meaning of Connecticut statutes and whether the employee’s complaints fell outside the scope of her job responsibilities. The plaintiff began making complaints that the program she was assigned to was being improperly administered. She was responsible for providing legal services to the Comptroller and Connecticut State Employees Retirement Commission, and prepared written materials for the Commission explaining that an incorrect standard was being applied. She claimed that the Comptroller and others subsequently retaliated against her by systematically stripping her of job responsibilities. She filed a whistleblower complaint with the Auditors under Connecticut General Statutes in December 2013 and by December 2014, her position in the Division was eliminated. Although she then transferred to another state agency, she lost two credited years of service for the purpose of eligibility for compensation and benefits. Brown v. Halpin, #16-3615, 2018 U.S. App. Lexis 6387 (2nd Cir.).
A Whistleblower Protection Act lawsuit against the Department of Defense claimed that it took several adverse personnel actions against an employee in retaliation for his protected disclosures about alleged misconduct at the Defense Contract Audit Agency (DCAA). A federal appeals court held that substantial evidence supported a determination that the agency proved, by clear and convincing evidence, that it would have taken the same disciplinary action against the plaintiff in the absence of his whistleblowing activities, rejecting his whistleblower claim. Duggan v. Department of Defense, #16-73640, 2018 U.S. App. Lexis 4622 (9th Cir.).
An ATF agent asserted that his supervisors retaliated against him after he reported his suspicions that another agent improperly shot at a fleeing suspect, provided an inaccurate report, and testified falsely about the incident. He filed a whistleblower complaint with the Office of Special Counsel (OSC) under the federal Whistleblower Protection Act, 5 U.S.C. 1214(a)(1)(A), 2302(b)(8). The OSC declined to investigate, stating that he had not made a disclosure protected by the Act and had failed to provide sufficient evidence to support his allegations of retaliation. The Merit Systems Protection Board (MSPB) rejected his appeal, finding that he had not satisfied the requirement that he “seek corrective action before the Special Counsel before seeking corrective action from the Board.” A federal appeals court found that the OSC and the MSPB applied unduly stringent and arbitrary requirements. It reasoned that the plaintiff’s disclosure of suspected wrongdoing either explicitly accused another federal employee of perjury or provided sufficient evidence to justify such a suspicion worthy of consideration by his superiors. Either version would qualify as a protected disclosure. The law only requires that a complainant fairly present his claim with enough specificity to enable the agency to investigate and does not require a whistleblower to prove his allegations before the OSC. Delgado v. Merit Systems Protection Board, #16-1313, 2018 U.S. App. Lexis 2088 (7th Cir.).
After an FBI agent made whistleblower-eligible disclosures about a leased facility, his supervisor issued him a low-performance rating, removed him as group leader, and reassigned him. Believing this to be retaliation, Parkinson contacted a U.S. Senator, who forwarded his allegations to the Department of Justice’s Office of the Investigator General (OIG), which OIG sent the FBI its report. The Merit Systems Protection Board (MSPB) upheld his subsequent termination for lack of candor under oath and obstruction of the Office of Professional Responsibility. A federal appeals court panel sustained the obstruction charge and dismissal of his affirmative defense of violations of the Uniformed Services Employment and Reemployment Rights Act, but remanded the lack of candor charge. On rehearing, en banc, the court concluded that 5 U.S.C. 2303 requires all FBI employees to bring claims of whistleblower reprisal to the Attorney General and vacated that portion of its prior opinion. Parkinson v. Dept. of Justice, #15-3066, 2017 U.S. App. Lexis 21200 (Fed. Cir. en banc).
When a ten-year veteran of a town police department was passed over for promotion, he sued under both federal and state law, claiming that the town and its police chief intentionally let his application for promotion lapse and did not promote him in retaliation of him exposing the chief’s alleged professional misconduct. A federal appeals court upheld summary judgment for the town, finding that the plaintiff failed to raise a genuine dispute as to whether the town’s Board of Selectmen ratified the alleged retaliation. The court declined to exercise jurisdiction over the plaintiff’s remaining state law claim based on section 185(b)(1) of the Massachusetts Whistleblower Act. Saunders v. Town of Hull, #17-1174, 2017 U.S. App. Lexis 21404 (1st Cir.).
A U.S. Department of Justice employee objected to certain grant-making decisions, reporting them to both the media and members of Congress. She also filed a complaint with the Inspector General, claiming fraud was involved. Based on her complaints, corrective action resulted. She claimed that she faced whistleblower retaliation, with her employer giving her improper low performance ratings, moving some of her duties to other employees, and canceling her authorization for telework. After prevailing on her claim with the Merit Systems Protection Board, she sought attorneys’ fees under 5 U.S.C. Sec 1221(g)(1)(B). A federal appeals court ruled that she was entitled to an attorneys’ fee award. The Merit Systems Protection Board (MSPB) erred in denying attorneys' fees to her for the services of one of the lawyers that represented the employee during the course of proceedings before the MSPB because the employee carried her burden of showing entitlement to some award of attorney’s fees. While the employee had stated that there could be some truth to the claim that the time charges should not be fully compensable, she never suggested that the charges were entirely unwarranted, and her statements were not a basis for denying attorney's fees in their entirety. Rumsey v. Dept. of Justice, #16-2661, 866 F.3d 1375 (Fed. Cir. 2017).
An officer with the Bureau of Immigration and Customs Enforcement, an agency of the Department of Homeland Security, made disclosures of information about his employer’s alleged practice of releasing unaccompanied alien children to non-family sponsors with criminal records. He asserted that he was subject to adverse personnel action in retaliation for that protected whistleblowing activity. A federal appeals court found that his disclosures alleged serious breaches in DHS’s practices that threaten the safety of minor children. His non-frivolous allegations that such disclosures contributed to a negative personnel action deserved a merits hearing. Piccolo v. Merit Systems Protection Board, #16-2374, 2017 U.S. App. Lexis 17256 (Fed. Cir.). A narcotics officer reported two other officers for allegedly filing false reports, and subsequently testified against them at a hearing that resulted in their firing. Following this, his fellow officers would not work with him. He retired six years later, and then sued the city, alleging retaliation based on his protected whistleblower activity by failing to assign or promote him to several positions. He sought discovery of the records of the officers selected for the positions to which he had applied, arguing that the documents were necessary to show the city’s stated business reason for its promotions—that the successful candidates were more qualified than him—was a pretext for retaliation. The city argued that the officers’ personnel records were not subject to discovery because they were innocent third parties who had not witnessed or caused Riske’s injury. An intermediate California appeals court ruled that the city should produce the reports for an in camera inspection and then production of all discoverable information should be ordered. It held that the statutory scheme governing the discovery of peace officer personnel records was not limited to cases involving officers who either witnessed or committed misconduct. Riske v. Superior Court, #B270043, 6 Cal. App. 5th 647, 211 Cal. Rptr. 3d 477, 2016 Cal. App. Lexis 1076
A deputy sheriff who suffered a
job-related injury applied for an industrial disability retirement. She also
sought and eventually received advance disability pension payments while her
retirement application was processed. She further sought penalties for an
alleged unreasonable delay in receiving the advance payments. The workers’
compensation judge ruled that such penalties were available for the
unreasonable delay in payment of advance disability pension payments, but
deferred the decision on whether the delay in this case was unreasonable. The
California Workers' Compensation Appeals Board ruled that it had no
jurisdiction to award such penalties for unreasonable delay. An intermediate
California appeals court held that the board did have jurisdiction to impose
penalties for the unreasonable delay or denial of advance disability pension
payments to local peace officers who are disabled on the job. Further
proceedings were therefore ordered. Gage v. WCAB, #C081618, 6 Cal. App. 5th 1128, 2016 Cal. App. Lexis
1120.
A purchasing agent for the
federal Forest Service submitted a report to his supervisor that stated that he
believed that another employee had violated the
Federal Acquisition Regulation (FAR). The supervisor took no action, but rather
instructed him to delete portions of the report. He followed those instructions
but later sent an email to the U.S. Department of Agriculture’s Office of
Inspector General again reporting the suspected misconduct, as well as stating
that his supervisor had instructed him to cover it up. He was then terminated
while still in his probationary period. A federal appeals court ruled that the
Merit Systems Protection Board (MSPB) lacked jurisdiction to consider his claim
that he was terminated during his probationary period because he notified his
supervisor of employee misconduct because he did not raise that claim in a
complaint he filed with the Office of Special Counsel (OSC). While he did file
a complaint with the OSC which alleged that he was fired because he sent an
email to the Department of Agriculture's Office of Inspector General, and that
claim was rejected by the MSPB, this was not the same claim and the MSPB did
not have jurisdiction to decide that claim until it was submitted to the OSC. Acha v. Dept. of Agriculture, #15-9581, 841 F.3d 878 (10th Cir. 2016).
The Superintendent of
Industries at a federal correctional center oversaw a prison factory that
produced ballistic helmets primarily for military use, as well as occasionally
serving as associate warden. He disclosed to the government-owned corporation
that ran the prison and to the warden what he perceived to be the mismanagement
of factory funds. The warden subsequently reassigned him, and over the next
four and a half years, he was assigned to low level positions. The warden
attributed these reassignments to unspecified Office of Inspector General (OIG)
employees after the OIG investigated the alleged fund mismanagement. Finally,
the warden assigned the plaintiff to sit on a couch in the lobby for eight
months. The plaintiff appealed to the Merit Systems Protection Board, alleging
violation of the Whistleblower Protection Act, 5 U.S.C. 2302(b)(8). The ALJ
found that the government had rebutted his case. A federal appeals court
reversed, finding that the government did not prove by clear and convincing
evidence that it would have reassigned the plaintiff absent his protected
disclosures. Miller v. Department of Justice, #15-3149, 2016 U.S. App. Lexis
21512 (Fed. Cir.).
A city implemented a “directed patrols” policy,
requiring police officers to engage with city residents even though the
residents are not suspected of any wrongdoing. The program consisted of “a
structured 15-20 minute deployment into a targeted area to accomplish a
specific patrol or crime reduction function.” Officers are to obtain personal
information from the individuals they interact with, if the individuals agree
to provide it. During these encounters, officers should “approach community
members" and "inquire about criminal activity or quality of life
issues.” A police union sued, claiming the city had imposed an unlawful quota
on arrests or citations because officers on supplemental patrol were expected
to conduct a minimum of 27 directed patrols per shift and officers on regular
patrol were expected to perform a minimum of 18; with failure to comply as
cause for disciplinary action, in violation of N.J.S.A. 40A:14-181.2, an
anti-quota law. Individual officers alleged First Amendment and whistleblower
retaliation. A federal appeals court rejected the anti-quota law claim, since
that law applies to arrests and citations, which the patrols policy did not
require. The First Amendment retaliation claims were rejected, but the appeals
court ruled that a whistleblower retaliation claim could proceed. under New
Jersey's Conscientious Employee Protection Act, N.J. Stat. Ann. § 34:19-3. The
officers established that they had a reasonable belief that the policy was
illegal, that they performed a protected whistleblowing activity, that their
transfers constituted an adverse employment action, and that there was a causal
connection between the whistleblowing activity and the adverse action.
Fraternal Order of Police Lodge 1 v. City of Camden, #15-1963, 2016 U.S. App.
Lexis 20600 (3rd Cir.).
A Social Security
hearing officer failed to make a non-frivolous claim under the Whistleblower
Protection Act (WPA), 5 U.S.C. 2302(b)(8)(A) for disciplinary action against
him for making certain disclosures. The first two disclosures were not
protected disclosures because an agency ruling or adjudication, even if
erroneous, was not a violation of the law or gross mismanagement under the WPA,
and the other three disclosures were not protected disclosures because
communications concerning policy decisions were explicitly excluded from
protection under the WPA. Daniels v. MSPB, #13-73913, 2016 U.S. App. Lexis
14602 (9th Cir.).
An employee of the Centers for Disease Control
and Prevention claimed that agency officials violated the whistleblower
protections of 5 U.S.C. 2302(b)(8)(A) by retaliating against him for disclosures
about agency practices, including that the Pocket PCs were outdated, had bad
batteries, lost data, and presented data-entry problems. Because of this he was
allegedly not invited to certain meetings, and discouraged from participating
in certain projects to which he was assigned. Various supervisors also
allegedly treated and evaluated him poorly and placed him on a Performance
Action Plan. A federal appeals court reversed the dismissal of the claim,
finding that the employee had adequately alleged that at least one of his
supervisors knew of the disclosure at issue. Cahill v. Merit Sys. Protection
Bd., #15-3152, 2016 U.S. App. Lexis 8554 (Fed. Cir.).
Employees of the West Virginia Department of
Health and Human Resources claimed that they were fired for uncovering and
alerting others to irregularities with the procurement process used by the
department. Summary judgment in favor of the employer was erroneous, because
the Request for Proposal process was governed by a state statute and involved
the expenditure of public funds. The plaintiffs raised a genuine issue of
material fact as to whether their actions were protected whistle blowing under
a state statute. There was also an issue as to whether their activities were
improperly motivated, giving rise to a legitimate reason for discharge. Complex
issues of intent and motivation were involved that could only be decided by a
trier of fact. Taylor v. W. Va. Dept. of Health & Human Res., #14-0679,
2016 W. Va. Lexis 276.
An FBI special agent was the leader of an
operations group assigned the task of relocating a previously compromised
undercover facility. A facility was leased from an owner who promised to
contribute $70,000 to various facility improvements. The plaintiff both
negotiated the lease and managed the tenant improvement funds. While doing this
work, he made whistleblower-eligible disclosures regarding alleged misconduct
by two individuals. After that, the plaintiff was given a low performance
rating by his supervisor, removed as group leader, and reassigned. The
plaintiff believed that these actions were retaliatory for the whistleblowing
and therefore sent a letter to a U.S. Senator, who referred the matter to the
Justice Department's Office of the Inspector General (OIG). The OIG investigated
and issued a report. The Merit Systems Protection Board upheld the plaintiff's
ultimate termination for alleged lack of candor under oath in an inquiry as to
the accounting for the tenant improvement funds. A federal appeals court found
that the lack of candor charges were not supported by substantial evidence, and
that the Merit Systems Protection Board had erroneously barred the agent from
raising an affirmative defense of whistleblower retaliation. Parkinson v. Dep't
of Justice, #15-3066, 2016 U.S. App. Lexis 3614 (Fed. Cir.).
An attorney hired by the International Boundary
and Water Commission, a federal agency, within four months of hiring had
prepared four legal memos challenging activities of the Commission as “gross
mismanagement,” contrary to existing law, and characterizing certain officers
as lacking “core competencies.” He also then submitted a report entitled
“Disclosures of Alleged Fraud, Waste and Abuse” to the Office of Inspector
General (OIG) and other federal agencies and informed his supervisor of his
reports. His supervisor then fired him, listing his alleged failure to support
the executive staff in a constructive manner as the reason. Relevant case law
at that time established that reports made to an employee's supervisor about
the supervisor's own conduct and reports made in the normal course of the
employee's duties were not protected under the federal Whistleblower Protection
Act. As a result, an administrative law judge, the Merit System Protection
Board, and the U.S. Court of Appeals for the Federal Circuit found no unlawful
retaliation.
While these claims were pending, however,
Congress enacted the Whistleblower Protection Enhancement Act of 2012, under
which the legal memos at issue could be protected disclosures. That law can be
applied retroactively to pending whistleblower cases. The plaintiff did not
raise the issue of the change in the law while his petition for a rehearing was
pending. Accordingly, the Merit System Protection Board refused to reopen his case,
a ruling the federal appeals court upheld as the plaintiff had failed to
exhaust his available Office of Special Counsel administrative remedies with
respect to his legal memos, leaving the MSPB without jurisdiction to reopen his
case. McCarthy v. Merit Sys. Protection Bd., #15-3072, 2016 U.S. App. Lexis 560
(Fed. Cir.).
An employee of the Wisconsin State Department of
Justice claimed that her employer took unlawful retaliatory action against her
because she lawfully disclosed information in an email sent to her supervisor
and two other employees expressing her concerns about her supervisor's
announcement that the agency would provide the state Attorney General with
24-hour security services while he attended the Republican National Convention
in another state. Her opinion was that this might be an improper use of state
funds. One month later, she was removed from her job as Public Integrity
Director and returned to her prior position as Special Agent-In-Charge. She
claimed that her "disclosure" was protected from retaliation under a
state whistleblower statute. The Wisconsin Supreme Court upheld the rejection
of this claim. A mere opinion as to the lawfulness or appropriateness of a
government action was not "information" being disclosed as defined in
the statute. The email in question was also not a disclosure as all recipients
already knew the information about the security plans. State Dep’t of Justice
v. State Dep’t of Workforce Dev., #2013AP001488, 2015 WI 114, 2015 Wisc. Lexis
721
A former IRS agent claimed that he was fired in
retaliation for whistleblowing about the Exxon oil company allegedly
perpetrating a $500 million tax fraud and IRS agents covering it up. A federal
appeals court, however, found that the Merit Systems Protection Board properly
dismissed his claim under the Whistleblower Protection Act. He failed to make a
non-frivolous allegation of government involvement in Exxon's purported
wrongdoing, and disclosures about purely private wrongdoing were not protected
under 5 U.S.C.S. § 2302(b)(8) of the statute. Aviles v. Merit Sys. Protection
Bd., #14-60645, 799 F.3d 457 (5th Cir.).
A Correctional Department Lieutenant filed a
lawsuit in federal court claiming both federal civil rights violations and
violations of a California state whistleblower protection statute by his
employer. He claimed that adverse actions, including his dismissal, were taken
in retaliation for him disclosing alleged improper governmental actions to his
superiors, including negligent inmate supervision resulting in an escape,
exhibiting a movie to inmates that violated Department policy, attempts to
collect overtime for work not done, and allowing in contraband. The trial court
rejected the state whistleblower claim, finding that the plaintiff was barred
from "relitigating" it because it had already been litigated during
hearings before the state Personnel Board. A federal appeals court reversed,
finding that the decision by the state Personnel Board did not preclude the
plaintiff under theories of either res judicata or collateral estoppel from
litigating his whistleblower retaliation damage claim in the trial court.
Wabakken v. CA Dep't of Corr. & Rehab., #13-56075, 2015 U.S. App. Lexis
16307 (9th Cir.).
A police chief sanctioned an officer for releasing
to the media a recording of an Emergency Response Team's radio communications
during an incident involving a suspect exchanging gunfire with officers and
barricading himself inside a home. The officer claimed that this was unlawful
retaliation for protected speech in violation of the First Amendment and a D.C.
Whistleblower protection statute. The appeals court upheld the rejection of the
First Amendment claim as the response team recording was within the provisions
of a valid general order issued by the department against the disclosure of
confidential information that could jeopardize ongoing investigations. The
police department's interest in non-disclosure outweighed the interests of the
public and the plaintiff in releasing the recording. Release of the recording
could have harmed pending criminal investigations into the incident, since the
confidential information concerning the barricade, if kept confidential, could
provide a basis to gauge other evidence offered by witnesses and those involved
in the incident. The whistleblower claim was rejected as the plaintiff failed
to show how the release of the recording was a "protected disclosure"
under the statute as in effect at the time of the incident. Baumann v. District
of Columbia, #13-7189, 2015 U.S. App. Lexis 13530 (D.C. Cir.).
A discharged fire captain sued the department
under a D.C. whistleblower protection act. The trial court granted summary
judgment to the defendant department, but a federal appeals court ruled that
this was erroneous. The plaintiff claimed that she was unlawfully terminated in
response to her protected communications to supervisors following a major fire
at a high rise building. The trial court, the appeals court found, should have
considered her communications individually, rather than grouping them into
broad categories for consideration. Considering the communications
individually, however, a reasonable jury could determine that at least one of
these communications qualified as a protected complaint, because it disclosed
alleged gross mismanagement or a substantial and specific danger to public
health and safety. Additionally, the defendant department failed to show by
clear and convincing evidence that it had legitimate, non-retaliatory reasons
for its actions. Coleman v. District of Columbia, #12-7114, 2015 U.S. App.
Lexis 12350 (D.C. Cir.).
Fire investigators for the District of Columbia
sued under the D.C. Whistleblower Protection Act, claiming that they had been
unlawfully reassigned to less desirable jobs in retaliation for them having
accused some of their superiors of gross mismanagement and workplace racial
discrimination. But the employer made the unrebutted explanation that they had
been reassigned because prosecutors refused to work with them and not because
of their filing of Equal Opportunity complaints regarding alleged racial
discrimination. The plaintiffs' failure to rebut this explanation meant that
they had failed to create a genuine issue of material fact as to the reason for
their reassignment. Additionally, their transfers to their new assignments
occurred before their racial discrimination complaints were filed. Bowyer v.
District of Columbia, #13-7012, 2015 U.S. App. Lexis 11624 (D.C. Cir.).
A former chief deputy in the sheriff's office sued
the sheriff, claiming that his termination after he raised complaints about
recordings being made in interrogation rooms violated his rights under a state
whistleblower protection statute as well as constituting unlawful retaliation
in violation of his First Amendment rights. The First Amendment claims failed
because his complaints were made within the scope of his employment duties and
therefore his speech was not protected. And he failed to establish a claim
under the Louisiana whistleblower statute, because he did not show that the
sheriff's office, in making the recordings, committed an actual violation of
state law. Wilson
v. Tregre, #14-31179, 2015 U.S. App. Lexis 8582 (5th Cir.).
The U.S. Supreme Court held that a federal
appeals court did not err in finding that the federal Transportation Security
Administration (TSA) violated an air marshal's whistleblower rights by firing
him for disclosing to a reporter that the TSA had decided to cut costs by
removing air marshals from some flights even though there was supposedly
credible information that al Qaeda was planning attacks on passenger flights in
the U.S. The reason given for his firing was disclosing sensitive security
information without authorization. When Congress used the phrase "specifically
prohibited by law" in crafting an exception to the federal Whistleblower
statute, it chose not to use the phrase "specifically prohibited by law,
rule, or regulation," and therefore did not remove protection for
unauthorized disclosures that violated rules or regulations but not laws. TSA
administrative regulations did not qualify as "law" for purposes of
the exception, and the statute authorizing the TSA to issue regulations did not
specifically prohibit the disclosures at issue. Department of Homeland Security
v. MacLean, #13-894, 2015 U.S. Lexis 755.
An employee of the Texas Department of Human
Services reported wrongdoing to his supervisor, who allegedly then disciplined
him for doing so. He then reported the wrongdoing he claimed to have witnessed
to his supervisor's supervisor, and subsequently to the lead program manager,
after which he was fired. He sued his former employer under a state
Whistleblower statute. The Supreme Court of Texas rejected the claim, holding
that the plaintiff had not reported the alleged misconduct to appropriate law
enforcement authorities (in this case the state's Office of Inspector General)
as required for coverage under the statute. The court overturned a finding by
an intermediate appeals court that the supervisors constituted appropriate law
enforcement authorities. Additionally, the plaintiff, under the circumstances,
could not have believed in good faith that he had done what was required for
protection under the statute. Tex. Dep’t of Human Servs. v. Okoli, #10-0567,
2014 Tex. Lexis 685, 57 Tex. Sup. Ct. J. 1214
A state statute protected a whistleblowing
sheriff's deputy against retaliation even if he was not the first employee to
report another deputy for alleged multiple unlawful acts, including a murder, a
cover-up, and involvement in methamphetamine transactions. Additionally,
substantial evidence supported a verdict that terminating the deputy for
falsely reporting wiretapped conversations was a pretext. But the appeals court
ruled that substantial evidence did not support the award of $2,006,015 in lost
actual earnings, but upheld an award of $2,500,000 in non-economic damages.
Hager v. County of Los Angeles, #B238277, 228 Cal. App. 4th 1538, 2014 Cal.
App. Lexis 758, 38 I.E.R. Cas. (BNA) 1669.
The Executive Director of the Idaho Peace Officer Standards
and Training Council (POST) was terminated for allegedly failing to comply with
directives regarding budget difficulties POST was having or certain personnel
management issues, and how to address issues raised in an audit report. He
sued, claiming that his firing violated two provisions of a state
whistleblower's act involving good faith communication regarding a violation or
suspected violation of the law, or refusal to carry out what an employee believes
to be an unlawful directive. Finding that he had not engaged in protected
activity, the trial court granted summary judgment to the defendant. The ruling
was affirmed by the Idaho Supreme Court, which found that the plaintiff's
belief that some of the directives given to him were illegal simply were not
objectively reasonable. . Black v. Idaho State Police, #39822, 2013 Ida. Lexis
334.
A former employee of the District of Columbia, fired
from his job as an elevator inspector, sued the employer and four supervisors
for violation of a District Whistleblower Protection Act. His firing was for
allegedly soliciting work for his private business while on duty. A federal
appeals court ruled that he had no possible claim against the individuals, as
the statute provided no cause of action against individuals at the time of his
firing. A subsequent amendment to the law allowing such claims did not apply
retroactively. Payne v. District of Columbia Government, #11-7116, 2013 U.S.
App. Lexis 11478 (D.C. Cir.).
A federal Air Marshal went on television in
disguise to criticize various actions and policies of the employing agency. He
was removed from his job when another employee with the agency recognized his
voice, since the interview with the reporter was deemed an unauthorized
disclosure of sensitive security information. The Merit Systems Protection
Board upheld his removal from the job by the Transportation Security
Administration (TSA). A federal appeals court held that the board had
incorrectly determine that the disclosure made fell outside the boundaries of
the Whistleblower Protection Act as material prohibited by law from being
disclosed. The court ordered further proceedings to examine whether, in fact,
the particular information disclosed was specifically prohibited by law from
being disclosed. MacLean v. Department of Homeland Security, #11-3231, 2013
U.S. App. Lexis 8485 (Fed. Cir.).
A county employee claimed that she had been fired
from her job as director of the county's 911 department in violation of a state
whistleblower protection statute after she questioned the transfer of county
funds from the county's ambulance funds and raised concerns about the ambulance
service provided to the county. The Michigan Supreme Court held that the plaintiff
had presented sufficient evidence so that reasonable people could differ as to
the true motivation for eliminating her job. The defendants, therefore, should
not be granted summary judgment, Debano-Griffin v. Lake County, #143841, 2013
Mich. Lexis 146.
The federal istleblower Protection Enhancement
Act has been passed into law. The statute expands on the Whistleblower
Protection Act of 1989 by strengthening a wide range of protections for
disclosures of government wrongdoing. It eliminates loopholes that had resulted
in the protection of whistleblowers only when they are the first to report
misconduct as opposed to subsequent reporters, clarifies that whistleblowers
are protected for challenging the consequences of government policy decisions,
and also clarifies that protection of critical infrastructure information does
not override protection of whistleblowers under the Act.
An African-American police officer was terminated after
he blew the whistle on a detective and fellow officer in connection with a
missing persons investigation he assisted them in, and in which the three of
them failed to arrest two suspects or collect certain evidence in what later
turned into a murder prosecution. The detective and other officer, both of whom
are Caucasian were only recommended for suspension by the same Internal Affairs
investigation that resulted in his firing. A jury awarded him $3.5 million on a
whistleblowing claim, $2.5 million on as a breach of contract claim, and
$500,000 (half compensatory and half punitive damages) on a race discrimination
claim for the disparate discipline. An intermediate state appeals court
overturned the whistleblowing and contractual awards, while upholding the race
discrimination disparate discipline award. The city was protected from the
whistleblowing claim by sovereign immunity, since whistleblowing is a tort
rather than contract cause of action. As for the contract claim; it was based
on statute saying that non-probationary officers can only be fired for cause,
the court found that it was not a "contract." Holmes v. Kansas City
Bd. of Police Cmsnrs., #WD72852, 364 S.W.3d 615, 2012 Mo. App. Lexis 133.
Nurses who worked in the health care unit of a
privately run jail failed to show that their employer violated an Indiana state
whistleblower protection law by allegedly constructively discharging them for
complaining about safety problems at the jail. The plaintiffs could not point
to any violation of the law that they reported, which was a prerequisite to
making a claim under the whistleblower statute. A federal appeals court also
rejected the nurses' racial discrimination and hostile work environment claims.
While the effect of the adoption of a shift rotation policy was to split up a
predominately black shift, there was no evidence that the change was motivated
by race. Ellis v. CCA of Tenn. LLC, #10-2768, 2011 U.S. App. Lexis 11577, 112
Fair Empl. Prac. Cas. (BNA) 791 (7th Cir.).
A Supervisory Border Patrol Agent's
disclosures were not protected by the federal Whistleblower Act because
management was already aware of those allegations. Stiles v. Dept. of Homeland
Security, #DA-1221-08-0402-W-2, 2011 MSPB 28.
Whistleblower claim rejected. Management
demonstrated that the employee, a language instructor, was unable to implement
lesson plans with her students and a failed to demonstrate an acceptable level
of teaching proficiency. Royal v. Dept. of the Army, #2010-3190, 2011 U.S. App.
Lexis 5732 (Unpub. Fed. Cir.).
Under the federal Whistleblower Act, a disclosure will
not be protected if it is made as part of an employee's normal duties reported
through normal channels or if the disclosure is made to the wrongdoer. Lane v.
Dept. of Homeland Security, #DC-1221-10-0231-W-1, 2010 MSPB 245.
Federal Merit Board orders the reinstatement of
and back pay for a U.S. Park Police Chief who was fired after speaking out
against manpower shortages, resulting in increased crime and drug activity in
Washington area parks. Chambers v. Dept. of the Interior, DC-1221-04-0616-M-2,
2011 MSPB 7.
Third Circuit rejects a retaliation suit against
a city police officer who reported possible misconduct to state officials. She
was transferred to the property room, without any loss of pay.
"Plaintiff's transfer and the alleged comments and behavior directed
towards her do not amount to punitive conduct that would deter a person of
ordinary firmness from exercising her free speech rights, and ... the lack of
adverse employment action was fatal to [her] claims. Revell v. City of Jersey
City, #09-4207, 2010 U.S. App. Lexis 19407 (Unpub. 3rd Cir.).
A DEA Agent's communications were not protected
disclosures because he reported conduct as part of normal duties through normal
channels. Kahn v. DoJ, #2009-3125, 2010 U.S. App. Lexis 18679 (Fed. Cir.).
Federal appeals panel sustains three charges
against the former chief of the U.S. Park Police, who claimed that she was
terminated because of her whistleblower-protected public statements. Only one
charge against her was protected by the Whistleblower Protection Act. The Merit
Systems Protection Board must reconsider whether removal remains a reasonable
penalty. Chambers v. Dept. of Interior, #2009-3120, 602 F.3d 1370, 2010 U.S.
App. Lexis 8209 (Fed. Cir.).
First Circuit confirms a jury award against
Boston's sheriff of $360,000 in compensatory damages and $250,000 in punitive
damages, plus attorney's fees and costs in the amount of $275,437. The
plaintiff, a nurse, was barred from the jail after she reported the physical
abuse of an inmate to the FBI. The jury had "significant evidence"
indicating that a substantial factor in the sheriff's decision to bar the
plaintiff from the House of Corrections was her communications with the FBI.
They found the sheriff's conduct to be "reprehensible" Porter v.
Cabral; Cabral v. Suffolk Co. Sheriff's Dept., #07-1633 & 07-1640, 2009
U.S. App. Lexis 24811 (1st Cir.).
Federal appeals court reinstates a wrongful discharge
suit brought by a city employee who reported a ghost payroll. Valentino v. Vil.
of So. Chicago Heights, #06-3882, #2006 U.S. App. Lexis 16817 (7th Cir.).
Federal Merits Systems Protection Board overturns
the dismissal of a TSA employee’s whistleblower claim. Although he may have
lacked formal education or training in explosives-related technology, his four
years of experience in conducting tests using detection machines was more than
sufficient to support a reasonable belief in the fallibility of the machines.
Miller v. Dept. of Homeland Security, #DC-1221-08-0274-W-1, 2009 MSPB 75, 2009
MSPB Lexis 2328.
Jury awards $3.127 million to a white L.A. police
officer who claimed that he was involuntarily transferred for reporting that a
sergeant had made racist statements about blacks and Latinos and had pilfered
money from a Police Explorer fund. The award included $3 million in damages for
emotional distress and $127,000 for past and future wage losses. Hill v. City
of Los Angeles, L.A. Co. Super. Ct. (Verdict, 2008).
Appellate court rejects a retaliation action
brought by a campus officer who was not selected as chief, after he reported
the prior chief for misconduct. The officer failed to prove his disclosure was
a factor in the university’s decision to select a major with the state DPS
instead of promoting him. Davenport v. Univ. of Arkansas, #08-1438, 2009 U.S.
App. Lexis 2501 (8th Cir.).
Wrongful Discharge/Discipline: Damages & Settlements
D.C. government employee, who lost her job after
serving four months of jury duty, is awarded reinstatement, backpay,
retroactive employment benefits, costs, attorney’s fees, and a statutory
penalty of $5,000. Madison v. Dist. of Columbia, #07-289, 2009 U.S. Dist. Lexis
4630 (D.D.C.).
Federal court dismisses
§1983 damages claims brought by a whistle-blowing state corrections employee
against the DoC. The 11th amendment bars monetary claims, but he could proceed
on his complaint seeking declaratory and injunctive relief. Murray v. N.Y.
Dept. of Corr. Serv., #08-CV-6383, 2008 U.S. Dist. Lexis 93131 (W.D.N.Y.).
Seventh Circuit dismisses a whistleblower
retaliation claim brought by a terminated corrections official. Although her
report to the FBI was protected speech, she failed to present evidence that her
supervisors knew that she had made the report. Trigillo v. Snyder, #06-2578,
2008 U.S. App. Lexis 23545, 2008 WL 4755789 (7th Cir.); prior decis. at 2006
U.S. Dist. Lexis 28598 & 22615 (C.D. Ill.).
Ninth Circuit rejects a whistleblower claim
raised by a terminated air marshal. He revealed to the media the contents of a
DHS decision to suspend air marshal protection for overnight flights. The
Whistleblower Protection Act did not apply to the TSA staffing decision because
it was not a personnel action. Mac Lean v. Dept. Homeland Security, #04-17050,
2008 U.S. App. Lexis 19618 (9th Cir.).
The failure to reappoint a detective sergeant
constitutes an adverse employment action sufficient to support a §1983 action;
his whistleblower claims should be decided by a jury, since there was a
question of fact as to whether he was not reappointed because of his
involvement in a grand jury investigation. Welch v. Campi, #072470, 2008 U.S.
App. Lexis 20485 (1st Cir.).
Whether a disclosure under the federal
Whistleblower Protection Act is unprotected because "it was made as part
of an employee's normal job duties," is governed by three categories into
which a disclosure may fall, only the latter two of which are protected under
the WPA: (1) disclosures made as part of normal duties through normal channels;
(2) disclosures as part of normal duties outside of normal channels; and (3)
disclosures outside of normal duties. "The third category involves the
situation in which the employee is obligated to report the wrongdoing, but such
report is not part of the employee's normal duties or the employee has not been
assigned those duties." Kahn v. Dept. of Justice, #2007-3216, 2008 U.S.
App. Lexis 12425 (Fed. Cir.).
In a whistleblower action, the Federal Circuit
remands the action for further findings, but writes that "removal was a
reasonable penalty in light of [the appellant's] repeated violation of that
trust." Chambers v. Dept. of Interior, #2007-3050, 2008 U.S. App. Lexis
3161 (Fed. Cir.).
Federal court holds that city police officers
that are fired for cooperating in a state investigation lack First Amendment
protection. Unlike citizens, they have a duty to cooperate. Cheek v. City of
Edwardsville, #06-2210, 514 F.Supp.2d 1220, 2007 U.S. Dist. Lexis 63097
(D.Kan.).
Federal employee's complaint that training
deficiencies could impair job safety was protected under the Whistleblower
Protection Act of 1989; a subsequent reduction in her responsibilities was
actionable as a reprisal. Johnston v. M.S.P.B., #2007-3167, 2008 U.S. App.
Lexis 4476 (Fed. Cir.).
Following the Supreme Court's 5-4 holding in
Garcetti v. Ceballos, 547 U.S. 410 (2006), the Second Circuit rejects a
retaliation lawsuit filed by a NYPD sergeant after he wrote a report about
health concerns at his precinct. He was required to prepare the report in his
role as the precinct Safety Officer, and was not writing as a citizen. Ruotolo
v. City of New York, #06-3886, 2008 U.S. App. Lexis 2551.
Police detective and a deputy police chief who
reported alleged illegal conduct by fellow officers to the professional
accountability bureau and to the chief of police were protected by Michigan
Whistleblowers' Protection Act, where the act protects reports made within
employee's own agency. "... the WPA does not require that an employee of a
public body must report violations or suspected violations to an outside agency
..." Brown v. Mayor of Detroit, #132016, 26 IER Cases (BNA) 1057.
Federal court refuses to dismiss a whistleblower
action filed by a former police chief; his position was abolished by ordinance,
he was reduced to lieutenant with no pay loss, and a public safety director
assumed his administrative duties. "We cannot say as a matter of law that
no reasonable jury could find that the actions taken in eliminating the
position of chief of police ... did not amount to a wrongful intentional act or
a wanton and willful disregard of [the plaintiff's] rights." The New
Jersey whistleblower law allows a jury to award punitive damages. Ragan v.
Fuentes, #1:05-cv-02825, 2007 U.S. Dist. Lexis 72605 (D.N.J.).
A city's interest in promoting police efficiency
does not outweigh a union official's First Amendment right to disclose
allegations of misconduct to the FBI. See v. City of Elyria, #06-4195, 2007
U.S. App. Lexis 22308 (6th Cir.).
Third Circuit rejects a free speech claim by
trooper/instructors at a state police firing range who complained of hazardous
conditions. They were speaking pursuant to their official duties when they
complained through the chain of command and when they gave statements to the
State Auditor. Foraker v. Chaffinch, #06-4086, 2007 U.S. App. Lexis 20739 (3rd
Cir.).
Two former, whistleblower Detroit police officers
are awarded $6.5 million against Mayor Kwame Kilpatrick and the City of
Detroit. The court instructed jurors that the state's whistleblower protection
act required them only to determine if the officers believed the allegations
were legitimate and whether they were punished for coming forward. Brown v.
Kilpatrick, Wayne Co. Cir.Ct. (2007). Source: Detroit Free Press (9/12/2007).
H.R. 1, Improving America's Security Act, became
Public Law #110-53 in 2007; among other provisions, it creates rights for
public transit, motor carrier and railroad whistleblowers. Workers will be able
to seek reinstatement, back pay with interest, compensatory damages, litigation
costs, expert witness fees, attorney fees, and punitive damages not exceeding
$250,000.
Montana canine officer who alleged retaliation
after reporting that other two officers pilfered the drugs that he used to
train his dog wins $1.3 million. The retaliatory acts included unwarranted
discipline, denial of training opportunities and promotions. Feuerstein v.
Billings Police Dept., #DV06-0332 (13th Dist. Ct. Montana, 2007); verdict
summarized at 45 (2217) G.E.R.R. (BNA) 915.
Keeping a detailed log on the errant activities
of coworkers is not protected activity under the Idaho Whistleblower Law and
was a waste of resources, justifying the termination of a fire dept. clerk.
Curlee v. Kootenai Co. Fire & Rescue, #32794, 2007 Idaho App. 44.
Two suburban Chicago police officers that were
allegedly fired for speaking out about a fellow officer's purported use of
cocaine, are awarded $1.75 million in compensatory damages, $120,000 in liquidated
damages, and $245,000 in punitive damages. Sims v. Schultz, #03C381, Pacer Doc.
229; Wiseman v. Schultz, #03C382, Pacer Doc. 100 (N.D. Ill. 2007).
Federal court refuses to dismiss a First
Amendment suit brought by an employee that claimed that he was terminated after
he submitted an analysis of the inefficient use of take home vehicles by police
commanders. Franklin v. Clark, #04-2042, 2006 U.S. Dist. Lexis 73853 (D.Md.
2006). {N/R}
Federal appeals court holds that a whistleblower
who won $70,000 in her suit against the New York Air National Guard was
entitled to a refund of the federal income tax she paid on compensatory damages
awarded by the Labor Dept. Murphy v. Internal Revenue Serv., #05-5139, 2006
U.S. App, Lexis 21401 (D.C. Cir. 2006). {N/R}
Former police commander wins $3.7 million in his
whistleblower retaliation lawsuit brought against the chief and mayor --
including $2 million in punitive damages. Hare v. Zitek, #1:02-cv-03973, Pacer
Docs 186 & 187 (N.D. Ill. 2006). [2006 FP Nov]
Federal appeals court affirms the dismissal of a
suit by a DEA Agent, under the Whistleblower Protection Act. He failed to prove
that he had made a protected disclosure under the Act. In order to constitute a
"disclosure" protected by the WPA, a statement must reveal something
that was hidden and not known. Fields v. Dept. of Justice, #05-3133, 2006 U.S.
App. Lexis 14746 (Fed Cir. 2006). {N/R}
In a 5-4 decision, the Supreme Court holds that
public employees who make statements as part of their official duties are not
protected by the First Amendment purposes or insulated from disciplinary
action. Garcetti v. Ceballos, #04-473, 2006 U.S. Lexis 4341, 74 U.S.L.W. 4257
(2006). [2006 FP Aug]
U.S. Office of Personnel Management issues final
regulations to implement agency reimbursement provisions of Title II of the
Notification and Federal Employee Antidiscrimination and Retaliation Act of
2002 (No FEAR Act). 71 (90) Fed. Reg. 27185 (5/10/2006).{N/R}
First Circuit, in a 2-to-1 decision, affirms a
$125,000 award to a former undercover drug agent against two of his superiors.
Following his complaints of possible corruption by coworkers, he was fired
because of an expunged, three-year-old conviction for domestic abuse.
Tejada-Batista v. Morales, 424 F.3d 97, 2005 U.S. App. Lexis 20109, 23 IER
Cases (BNA) 828 (1st Cir.). {N/R}
Disclosures of misconduct or waste, which are
made as part of an employee's normal job responsibilities through normal
channels, are not covered by the Whistleblower Protection Act. Blakemore v.
Dept. of the Navy, #04-3444, 2005 U.S. App. Lexis 22842 (Fed. Cir. 2005). {N/R}
A police chief, who was suspended with full pay
for one month by the town manager based on variety of allegations that had
never appeared in his personnel file, lacked a valid whistleblower claim. Tripp
v. Cole, #04-2588, 425 F.3d 5, 2005 U.S. App. Lexis 20933, 23 IER Cases (BNA)
820 (1st Cir. 2005). {N/R}
Supreme Court declines to review lower court
holdings that dismissed the claims of an ex-FBI translator who claims that she
was fired after she reported security problems and incompetence. Consideration
of state secrets prevented her from maintaining her lawsuit. Edmonds v. Dept.
of Justice, cert. den. #05-190, 2005 U.S. Lexis 8589, 74 U.S.L.W. 3321 (2005).
{N/R}
First Circuit upholds a jury finding that
officials in the state's organized crime division terminated an undercover
officer for disclosing mismanagement and possible corruption to a newspaper.
Tejada-Batista v. Morales, #03-1841, 424 F.3d 97, 2005 U.S. App. Lexis 20109,
23 IER Cases (BNA) 828 (1st Cir. 2005). {N/R}
Justice Dept. orders the FBI to reinstate a
Chicago agent who faced dismissal for accusing his superiors of not doing
enough to prevent the Sept. 11 attacks. The agent was suspended for
insubordination, unprofessional conduct and talking to the media without
approval. In re Robert G. Wright, Jr., FBI Office of Professional
Responsibility (2005). {N/R}
Navy adopts strong prohibition against whistleblower
retaliation: "No person may take, or threaten to take, an unfavorable
personnel action (including a referral for mental health evaluation), or
withhold, or threaten to withhold, a favorable personnel action in reprisal
against any member of the Armed Forces for making or preparing to make a
protected communication, including an allegation of sexual harassment or
unlawful discrimination, to one authorized to receive the communication."
Military Whistleblower Reprisal Protection, SecNavInst 5370.7C (14 Oct. 2005).
{N/R}
Appellate court finds that a DHS employee who
oversees access to facilities failed to prove that adverse personnel action was
in retaliation for "whistleblowing" activities, although he did
complain about the unauthorized issuance of ID cards. Scott v. Dept. of
Homeland Security, #5-3083, 2005 U.S. App. Lexis 17258 (Unpub. Fed Cir. 2005).
{N/R}
Federal appeals court affirms dismissal of an
ex-FBI translator who claims that she was fired after she reported security
problems and incompetence. Consideration of state secrets prevented her from
maintaining her lawsuit. Edmonds v. Dept. of Justice, #04-5286, 2005 U.S. App.
Lexis 8116 (Unpub. D.C. Cir. 2005) affirming 323 F.Supp.2d 65 (D.D.C. 2004) and
272 F.Supp.2d 35 (D.D.C. 2003). [2005 FP Jul]
Federal court dismisses 8 of 9 counts of a
lawsuit brought by an FBI agent and his wife, claiming retaliation because his
investigations of the Potts Party and Ruby Ridge standoff led to disciplinary
action against high-ranking Bureau officials. FBI agents have limited rights to
bring civil actions challenging adverse personnel actions. Roberts v. Dept. of
Justice, #1:03cv1920, 2005 U.S. Dist. Lexis 5410 (D.D.C. 2005). [2005 FP Jun]
Whistleblower law did not protect a North
Carolina state trooper who was fired for omitting information about the use of
force by another officer in his initial report, and then reported it in an
amended report. "The purpose of the Whistleblower Act is to protect
truthful reporting ..." Newberne v. Crime Control and Public Safety,
#COA03-530, 606 S.E.2d 742, 2005 N.C. App. Lexis 176 (2005). [2005 FP May]
Trial judge upholds firing of U.S. Park Police
chief who publicly highlighted security profiles of Washington monuments. Her
concern about budget underfunding and personnel understaffing were not
protected by the First Amendment or the federal Whistleblower Act. Chambers v.
Dept. of the Interior, #DC-1221-04-0616-W-1 (MSPB-ALJ 2004).[2005 FP Jan]
Supreme Court declines to review a $952,000 award
to a teacher who was fired after complaining about the administration's
treatment of disabled students. Settlegoode v. Portland Public Schools,
#02-35260, 371 F.3d 503 (9th Cir. 2004); cert. den., #04-313, 2004 U.S. Lexis
7419, 73 USLW 3285 (2004). {N/R}
To establish a cause of action for retaliatory
discharge in Illinois, a whistleblower must show that he was discharged in
retaliation for his activities and that the discharge violated a clearly
mandated public policy. Engstrom v. Provena Hospitals, #4-03-0965, 2004 Ill.
App. Lexis 1390 (2004). {N/R}
Federal appeals court rejects an allegedly
involuntary retirement claim from a whistleblower. She failed to exhaust her
administrative remedies. Rhodes v. Office of Personnel Mgmt. (IRS), #04-3184,
385 F.3d 236, 2004 U.S. App. Lexis 19367 (Unpub. Fed. Cir. 2004). {N/R}
The filing of in internal grievance was not a
"report" within the meaning of the Texas Whistleblower Act, which
prohibits taking adverse personnel action against a public employee who in good
faith reports a violation of law. A divided appellate court rejected the appeal
of a sergeant's demotion. County of Bexar v. Steward, #04-03-00580-CV, 139
S.W.3d 354, 21 IER Cases (BNA) 677, 2004 Tex. App. Lexis 4249 (4th App. Dist.
2004). {N/R}
Federal court dismisses a whistleblower action
brought by a terminated FBI contract translator for the FBI. Although the
plaintiff alleged security lapses, the court dismissed the action because a
trial could expose intelligence-gathering methods and disrupt diplomatic
relations with foreign governments. Edmonds v. Dept. of Justice, #02-1448, 2004
U.S. Dist. Lexis 12355 (D.D.C. 2004). {N/R}
Federal court dismisses a whistleblower action
brought by a terminated FBI contract translator for the FBI. Although the
plaintiff alleged security lapses, the court dismissed the action because a
trial could expose intelligence-gathering methods and disrupt diplomatic
relations with foreign governments. Edmonds v. Dept. of Justice, #02-1448, 2004
U.S. Dist. Lexis 12355 (D.D.C. 2004). {N/R}
The public policy protecting an employee from
retaliation for filing a whistleblower lawsuit does not extend to job
applicants. While the U.S. Supreme Court has recognized failure-to-hire claims
based on retaliation for engaging in conduct protected by First Amendment free
speech and associational rights, such reasoning does not apply to the right of
free access to the judicial system, the court concluded. Toth v. Bd. of Parks
Cmsnrs., #31340, 593 S.E.2d 576, 2003 W. Va. Lexis 170, 20 IER Cases (BNA)
1220(W.Va. 2003). {N/R}
EEOC publishes rules to implement the posting
requirements of the Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2002 (No Fear Act), which protects whistleblowers and other
victims of federal discrimination. P.L. 107-174, 116 Stat. 556, 28 U.S. Code
§2301. It requires federal agencies to maintain No Fear websites in specified
formats. Under the act, agency budgets are assessed any damages imposed as a
result of retaliatory and other unlawful treatment of their workers. Posting
Requirements in Federal Sector, 69 (16) Fed. Reg. 3483-3492. {N/R}
LAPD pays $6 million to settle nine federal
lawsuits and two state claims brought by nine current and former officers, who
alleged retaliation after they reported or testified about misconduct. Jones v.
City of Los Angeles, #00-CV-11505 (C.D. Cal., filed 2000); removed from L.A.
Co. Super. Ct., #BC 235705 (2000). Federal court litigation (C.D. Cal.): Warren
Brooks v. L.A., #02-CV-7192; Barry Brooks v. L.A., #02-CV-7432; Craig Crosby v.
L.A., #02-CV-6417; Chris Dunn v. L.A., #02-CV-6421; Nicole Garner v. L.A.,
#02-CV-6423; John Goines v. L.A., #02-CV-6419; Lillian Johnson v. L.A.,
#02-CV-6407; Johnneen Jones v. L.A., #02-CV-6417; Dana Walker v. L.A.,
#02-CV-7193.Workers' Compensation claims (WCAB): Warren Brooks v. L.A., #VEN
188194; John Goines v. L.A., #VNO 413379, 474672 & 0329072. [2003 FP Mar]
Under the federal and Maryland Whistleblower
Acts, an employee's complaint about the behavior of a supervisor is not a
protected disclosure. Thus, a state corrections employee has no cause of action
based on alleged retaliation for filing a grievance against the warden. The
retaliation complaint lacked a "public interest" component.
Montgomery v. Eastern Correctional Institution, #2003-13, 20 IER Cases (BNA)
1019, 835 A.2d 169, 2003 Md. Lexis 739 (2003). {N/R}
A new whistleblower law in Illinois, which
applies only to the private sector, prohibits retaliation against employees for
making disclosures to governmental or law enforcement agencies, or retaliation
for refusing to participate in an activity that would result in a violation of
a state or federal law, rule or regulation. {N/R}
Violation of the law is a Class A misdemeanor and
the employee may sue for reinstatement, back pay, litigation costs and attorney
fees. An "employee" can be full or part-time, and even a paid
consultant of the entity that retaliates. Illinois Public Act 093-0579. {N/R}
Texas appellate court holds that a jailer who was
supposedly terminated for reporting staffing shortages and surveillance
problems did not have to abandon his administrative remedy under the Texas
Whistleblower Act before filing a lawsuit. Harris Co. v. Lawson, #01-02-00288-CV,
2003 Tex. App. Lexis 7368, 20 IER Cases (BNA) 592 (Tex. App. 2003). {N/R}
Los Alamos Lab reinstates law enforcement
whistleblower and offers $930,000 plus back pay. Walp v. Univ. of Calif.,
(prelitigation settlement). Also see, Hearing Testimony, "Procurement and
Property Mismanagement and Theft at Los Alamos National Laboratory"
(2003). [2003 FP Nov]
University of California settles a second
whistleblower lawsuit arising over financial irregularities revealed at its
Lawrence Livermore facility near Berkeley. The plaintiff, a lab worker who
turned informant, received $33,000 in lost wages, $264,000 for medical and
sickness expenses, and $264,000 in general damages -- plus attorney's fees and
costs of $428,000. Doggett v. Regents of the Univ. of Cal., #829369 (Super. Ct.
Alameda Co. Cal.). {N/R}
Federal appeals court holds that a police report,
revealing misconduct of a fellow officer, is protected "speech" and
addressed a matter of public concern. Their terminations violated the First Amendment.
Taylor v. Chief of Police Keith, No. 01-6460, 338 F.3d 639, 20 IER Cases (BNA)
3532003 U.S. App. Lexis 15602, 2003 FED App. 0270P (6th Cir. 2003). [2003 FP
Nov]
Terminated Utah public employee was entitled to
collect compensatory and punitive damages for whistleblowing. Youren v. Tintic
Sch. Dist., #01-4131, 2003 U.S. App. Lexis 18768 (10th Cir. 2003). {N/R}
Federal court upholds the right of management to
fire a prison psychologist who released confidential records to public
advocates and the news media. Whistleblower laws protect only those who report
misconduct to the appropriate public officials. Dennison v. Penna. Dept. of
Corrections, #3:01cv56, 2003 U.S. Dist. Lexis 9579 (M.D. Penna. 2003). [2003 FP
Oct]
City worker who was fired after he testified
against his boss wins an $853,750 verdict. Ospalski v. City of Warren,
#01-CV-71454, 46 (5) ATLA L. Rep. (E.D. Mich. 2003). [2003 FP Oct]
Appeals court affirms comp. benefits for a police
lieutenant who was fired and was later exonerated and reinstated. The chief
caused him to be ostracized and stripped of his authority. The
"environment was abnormal for any person, not just a police officer."
Bor. of Beaver v. WCAB (Rose), #18 C.D. 2002, 810 A.2d 713 (Pa. Cmwth. 2002).
{N/R}
Federal appeals court rejects claims of a
railroad watchman, who alleged that he was fired because of the criminal acts
of his supervisor. There was testimony that the watchman had threatened
violence and used drugs. More importantly he failed to report his superior's
alleged criminal conduct to anyone in authority. Rivera v. Natl. R.R. Pass.
Corp., #01-16232, 331 F.3d 1074, 20 IER Cases (BNA) 25, 2003 U.S. App. Lexis
11505 (9th Cir. 2003). {N/R}
N.J. police officer, who claimed seven years of harassment
from fellow officers, after he reported possible misconduct, wins over $3
million in damages, including $2 million for pain and suffering. Pisano v. Twp.
of Parsippany, #MRS-L-002351-97 (Morris Co., N.J. Super. Ct. 2003). {N/R}
Ninth Circuit affirms the criminal contempt
conviction of a police practices researcher who violated a court protective
order when he gave copies of 79 LAPD files to TV journalists, exposing efforts
by officials to shield police officers from domestic violence prosecutions. The
defendant's story also aired on the CBS news show, 60 Minutes. The Supreme
Court has denied review. Mullally v. City of Los Angeles, #01-55620, 49 Fed.
Appx. 190, 2002 U.S. App. Lexis 22535 (Unpub. 9th Cir. 2002); cert. denied,
2003 U.S. Lexis 3025 (2003). {N/R}
Federal appeals court rejects a First Amendment
and whistleblower suit by a police chief, alleging that he was fired for
continuing an investigation of city council members, instead of referring it to
an outside agency as requested by the mayor, and for referring to the mayor as
Hitler. Tharling v. City of Port Lavaca, 02-20061, 2003 U.S. App. Lexis 9159
(5th Cir. 2003). {N/R}
Arbitrator holds that management violated the
Federal Whistleblowers Protection Act and a Michigan state law when it fired an
employee who notified a corruption task force about alleged illegal activity in
his department. Reinstatement and back pay ordered. City of Detroit and
Individual Grievant, 118 LA (BNA) 135, City Grievance No. 97-025 (Hodgson, 2003).
{N/R}
Ninth Circuit sustains an award of $1,150,000 in
compensatory damages and $1,150,000 in punitive damages against a private
sector employer that wrongfully terminated a radiation safety officer that had
reported nuclear safety violations. Freund v. Nycomed Amersam, 01-56491/4, 2003
U.S. App. Lexis 7537 (9th Cir. 2003). {N/R}
Whistleblower Requirements and Protection State
narcotics agents awarded $1.5 million for retaliatory action after they exposed
a money laundering operation benefiting a CIA-favored Caribbean politician.
McLaughlin v. Fisher, #00-CV-521 (M.D. Pa. 2003). [2003 FP Apr]
First Circuit holds that a police officer that
was transferred to a position he had previously requested after complaining
about departmental corruption was unable to prove he was the victim of
retaliation for whistleblowing. Dirrane v. Brookline Police Dept., #01-2523,
315 F.3d 65, 2002 U.S. App. Lexis 27197 (1st Cir. 2002). {N/R} Illinois
Governor issues executive order strengthening whistleblower laws. E.O. No.
4-2003 (Jan. 23, 2003). [2003 FP Apr]
Federal court overturns a $100,000 jury verdict
for a NYPD officer who was unable to prove the Police Commissioner knew of the
alleged retaliation or tolerated a custom of retaliation against officers who
are critical of police brutality. Davis v. City of N.Y., #00 Civ. 4309, 228
F.Supp.2d 327, 2002 U.S. Dist. Lexis 17701 (S.D.N.Y. 2002). [2003 FP Mar]
California appeals court rejects a mental
disability retirement for a police officer who suffered allegedly retaliatory
discipline and threats from fellow officers after he reported the use of
excessive force by his coworkers. A rational fear for his own safety if he
returns to work in the same agency is not enough; the claimant must show a
likelihood of retaliation if he works in police agencies elsewhere in the
state. City of Anaheim v. Nolan, #G028272, 104 Cal.App.4th 1170, 128
Cal.Rptr.2d 714, 2002 Cal. App. Lexis 5235 (4th Dist. Cal. App, 2002). [2003 FP
Mar]
Federal appeals court rejects the whistleblower claims
of former employees who signed a release of claims "arising out of my
employment at, or termination of employment." Thomas v. U.P.R.R.,
#01-2631, 308 F.3d 891, 2002 U.S. App. Lexis 21995 (8th Cir. 2002). {N/R}
Federal appeals court allows a California
corrections officer to bring a delayed whistleblower and retaliation suit
against the state. The officer's filing of workers' compensation claim, based
on stress injuries resulting from a punitive job reassignment, extended the filing
time for his lawsuit. Rigg v. California, #00-17371, 32 Fed. Appx. 398, 2002
U.S. App. Lexis 4702 (Unpub. 9th Cir. 2002); cert. denied sub nom Smith v.
Rigg, 2002 U.S. Lexis 6570. {N/R}
A parole officer who wrote a memo to her
supervisor complaining that her case load exceeded work limits set by a
collective bargaining agreement was engaged in protected activity under the
state's whistleblower law. Hutson v. Wisconsin Personnel Cmsn., #01-2959, 2002
Wisc. App. Lexis 1003 (2002). {N/R}
Fifth Circuit holds that the adoption of a
Whistleblower law which allows damages against a state employer does not waive
Eleventh Amendment immunity in federal court for other claims. Martinez v.
Texas Dept. of Criminal Justice, #00-51135, 300 F.3d 56, 2002 U.S. App. Lexis
14915 (5th Cir. 2002). {N/R}
A California public defender who alleged
constructive termination, after disclosing illegal and unethical practices in
the public defender's office, was awarded $231,850 by a Nevada County Superior
Court. Moore v. County of Nevada, reported in the Calif. Bar Journal Trial
Digest, June 2002. {N/R}
Assistant U.S. Attorney wins $200,000 in punitive
damages against the Justice Dept. for imposing a pretextual five-day suspension
after he contacted a member of Congress about hazardous waste contamination at
an airport. Environmental whistleblowers are protected under 33 U.S. Code
§1367, 42 U.S. Code §6971 and §7622. Sasse v. Dept. of Justice, #1998-CAA-7, 40
(1962) G.E.R.R. (BNA) 557 (ALJ decis. 2002); facts and jurisdiction at ARB
#99-053, 2000 DOL Ad. Rev. Bd. Lexis 94 (DoL-Adm.Rev.Bd. 2000). {N/R}
FAA settles whistleblower claim. Aviation
specialist was fired for going outside the chain of command to report to the
FBI that a Saudi national, with a name similar to a 9-11 hijacker, had attended
a FAA flight school. Office of Special Counsel ex rel. Hopkins v. DoT,
#CB-1208-02-0004-U-1, 40 (1963) G.E.R.R. (BNA) 568 (Settlement, 2002). [2002 FP
Aug]
First Circuit holds that states have sovereign
immunity from federal administrative proceedings that are initiated by state
employees to invoke federal whistleblower protections. Rhode Island Dept. of
Environ. Mgmt. v. United States, #00-2326, 286 F.3d 27, 2002 U.S. App. Lexis
6423(1st Cir. 2002). [N/R]
Federal court in Connecticut dismisses some, and
upholds some of the pleadings in a suit by a suspended detective, who alleges
retaliation for investigating other officers for drug-related corruption. Russo
v. City of Hartford, #3-97-CV-2380, 184 F.Supp.2d 169, 2002 U.S. Dist. Lexis
2555 (D.Conn. 2002). [2002 FP Jul]
Jury awards a police officer more than $3 million in
compensatory and punitive damages in a suit against his town and named
officers. He endured 7 years of threats and harassment, after reporting fellow
officers for misconduct. Pisano v. Twp. of Parsippany, #MRS-L-002351-97 (Morris
Co., N.J. Super. Ct.), 2/18/2002 Natl. Law Journal, p. B5). [N/R]
NYPD pays $1.5 million to settle lawsuits brought
by two high ranking officers who allegedly were sanctioned for refusing to
change the findings in a sexual harassment investigation in the Staten Island
command. Donovan v. Safir (S.D.N.Y.); Marsh v. Safer 99 Civ. 8605 (S.D.N.Y.).
[2002 FP May]
New Jersey jury awards a police officer over $3 million
for harassment, after he reported that fellow officers were involved in selling
blue jeans overseas. Award included $2 million for past pain and suffering,
$545,000 for future lost wages and punitive damages. Pisano v. Township of
Parsippany, No. MRS-L-002351-97 (Morris Co., N.J. Super. Ct.). [N/R]
The Seventh Circuit has held that county or
municipality may be sued as a "person" under the False Claims Act, 31
U.S. Code 3729 et seq. U.S. ex rel. Chandler v. Cook County, #00-4110, 277 F.3d
969, 2002 U.S. App. Lexis 847 (7th Cir. 2002). The Third Circuit
disagrees, and has ruled that county and city governments cannot be sued under
the False Claims Act because the mandatory treble damages provision is
"punitive" in nature and public entities are immune from punitive
damages. The U.S. Dept. of Justice, in an amicus brief, supported the claim of
the whistleblower-plaintiff in this case. U.S. ex rel. Dunleavy v. Co. of
Delaware, #00-3691, 297 F.3d 219, 2002 U.S. App. Lexis 1214 (3rd Cir. 2002). [N/R]
Federal Merit Board orders the temporary restoration,
to full regular duties, of an FAA specialist who was disciplined after he
called the FBI to report that the FAA had trained a Saudi with a name similar
to a Sept. 11th hijacker. Office of Special Counsel ex rel. Hopkins v. DoT,
#CB-1208-02-0004-U-1, 39 (1933) G.E.R.R. (BNA) 1150, – M.S.P.R. – (MSPB,
10/17/01). [2002 FP Jan]
New Jersey appeals court reverses a large verdict
won by a police officer. An allegation that superiors should not have issued
two gun permits is not the kind of employee complaint the law was designed to
protect, and does not shield an employee from disciplinary action. McLelland v.
Moore, #A-4534-98T5, 343 N.J. Super. 589, 779 A.2d 463, 2001 N.J. Super. Lexis
353 (N.J. App. 2001). [2002 FP Jan]
Federal jury awards former police chief and
deputy chief $1.7 million in damages. They had sued for wrongful termination
and malicious prosecution after they refused to reveal to the mayor's lawyer
the content of their corruption disclosures to the FBI. Niebur v. Town of
Cicero, #98-C-4157 (N.D. Ill., verdict May 21, 2001). Interim rulings at 90
F.Supp.2d 930, 2000 U.S. Dist. Lexis 3969 and at 1998 U.S. Dist. Lexis 15425.
[2001 FP 93-4]
Texas traffic officer who was transferred for low
ticket-writing could file a state whistleblower lawsuit complaining of an
illegal quota system. Austin (City of) v. Ender, #03-00-00286-CV, 30 S.W.3d
590, 2000 Tex. App. Lexis 6644, 16 IER Cases (BNA) 1432. [2001 FP 14-5]
Police officer who claimed that he was fired for
issuing a traffic citation to a politician's son could pursue a
retaliatory discharge action under the state whistleblower law. Puig v. Gr. New
Orleans Expr. Cmsn., #00-924, 772 So.2d 842, 2000 La. App. Lexis 2686, 16 IER
Cases (BNA) 1595. {N/R}
Under the federal civil rights act, a jury
finding that a public employee would have been fired, even if she did not
engage in whistleblower protected speech, precludes any recovery by the
plaintiff and does not merely offset damages. Ballard v. Muskogee, #99-7132,
238 F.3d 1250, 2001 U.S. App. Lexis 1175, 17 IER Cases (BNA) 257 (10th Cir.).
{N/R}
Federal appeals court rejects the termination
lawsuit of a payroll clerk who allegedly ignored a county commissioner's
instruction not to pay overtime because of her FLSA concerns. Even if her
interpretation of the FLSA was correct, her superior believed she was
insubordinate and disruptive and was justified in discharging her. Chesser v.
Sparks, #99-14594, 248 F.3d 1117, 17 IER Cases (BNA) 883, 6 WH Cases 2d (BNA)
1736 2001 U.S. App. Lexis 6772 (11th Cir.). {N/R}
Justice Dept. pays legal costs of a FOIA suit
brought by FBI crime law whistleblower and others. 53,000 documents will be
available on the plaintiffs' website. Whitehurst v. Fed. Bur. of Inves.,
#96-CV-00572, (D.D.C. 1998). [2000 FP 142-3]
Jury awards union organizer $1.62 million after
he was fired by the union for informing police and the FBI about illegal
activity. Silva v. AFSCME, #Civ 98-0579 JC/KBM, 43 (3) ATLA L. Rptr. 96 (D.N.M.
1999); 1999 (6-18) Albq. Journal p. C1. [2000 FP 94]
State upholds award of $503,952 plus attorney's
fees of $514,853 for two firefighters who reported misconduct of the city's
Safety Director. Fairbanks (City of) v. Rice, #S-8469, 998 P.2d 419, 2000 Alas.
Lexis 23, 16 IER Cases (BNA) 142. [2000 FP 94]
Ninth Circuit reverses a trial judge that
dismissed a suit by an officer who suffered anonymous retaliation and minor
harassment after he reported misconduct by his coworkers. Blair v. City of
Pomona, #98-55548, 223 F.3d 1074, 2000 U.S. App. Lexis 18349 (9th Cir.). [2000
FP 77-8]
Federal appeals court in New York upholds a
retaliatory harassment and constructive discharge lawsuit filed by three
officers against the sheriff and undersheriff, after they reported to the FBI
the physical abuse of jail inmates. Jeffes v. Barnes, #98-9369, 208 F.3d 49,
2000 U.S. App. Lexis 5150, 16 IER Cases (BNA) 333 (2nd Cir.). [2000 FP 109-10]
Although a deputy sheriff reported misconduct to
his superiors, he was not a protected whistleblower because the decision to
terminate him was made by senior officers who were unaware of his complaints
about coworkers. Phelps v. Cortland Co., #86000, 706 N.Y.S.2d 522, 2000 N.Y.
App. Div. Lexis 4649. [2000 FP 110-11]
Texas pays $235,000 to three former criminal
justice employees who filed a whistleblower lawsuit. Failure to follow
grievance procedures did not defeat their claims. Curbo v. State of Texas, 998
S.W.2d 337, 1999 Tex. App. Lexis 5546. [2000 FP 14-15]
FBI whistleblower final regulation adopted:
whistleblowers are not protected if they report misconduct or errors to the
Congress or in open court. They do not have a legally- enforceable right to an
administrative hearing for retaliation or to judicial review. A.G. Order No.
2264-99, 28 C.F.R. 27.1-6, 64 (210) Fed. Reg. 58782-88 (Nov. 1, 1999). [2000 FP
14-15]
Memorandum from psychologist at federal a prison,
urging the warden to create a suicide watch room was not a protected disclosure
under the federal whistleblower statute. Herman v. Dept. of Justice, 193 F.3d
1375, 1999 U.S. App. Lexis 26826, 15 IER Cases (BNA) 1162 (Fed. Cir. 1999).
{N/R}
Supreme Court, in a 7-2 ruling, limited the use
of RICO in whistleblower cases. The "overt act" must be a
racketeering type action; the act of termination itself is not enough. Beck v.
Prupis, #98-1480 (2000). {N/R}
Federal appeals court rule that to be a protected
disclosure, a complaint cannot be made to the wrongdoer, but must be expressed
to a higher authority or to an outside audience. Randles v. Dept. Veterans
Affairs, #99-3069, 1999 U.S. App. Lexis 18696 (Fed. Cir. 8/11/99). [1999 FP
158-9]
FBI issues regulation creating whistleblower
rights; 1989 federal law had exempted the Bureau. Whistleblower Protection for
FBI Employees, A.G. Order #2190-98, FR Doc. 98-29700, 63 Fed.Reg. 62937 (Nov.
10, 1998). [1999 FP 45]
Federal court refuses to dismiss a damage suit,
brought by three officers against the sheriff and others, claiming that the
officials had acquiesced in allowing other officers to harass and intimidate
the plaintiffs for exposing the beatings of jail inmates by various
correctional officers. Jeffes v. Barnes, 20 F.Supp.2d 404, 1998 U.S. Dist.
Lexis 14654 (N.D.N.Y.). [1999 FP 45-6]
Seventh Circuit upholds the right of a law
enforcement officer to report misconduct to the prosecutor, and to sue his
superiors for imposing discipline for continuing an investigation of a fellow
officer. Lickiss v. Drexler, 141 F.3d 1220 (7th Cir. 1998). [1999 FP 30]
Law enforcement officer wins $600,200 in
compensatory and $1.5 million in punitive damages for a retaliatory transfer
when he reported environmental misconduct by a former councilman. Fort Worth v.
Zimlich, #03-97-00475-CV, 975 S.W.2d 399, 1998 Tex.App. Lexis 5489. [1999 FP
13-14]
An ex-employee's frequent complaints,
antagonistic behavior to a supervisor, accusations of a coverup, was
unreasonable behavior. Robbins v. Jefferson Co., 186 F.3d 1253, 1999 U.S. App.
Lexis 18284, 80 FEP Cases (BNA) 795 (10th Cir.). {N/R}
Federal Court awards a NYPD officer $90,000
against her dept. and superiors, for failing to prevent retaliation after she
reported a theft by her partner. White-Ruiz v. City of N.Y., 983 F.Supp. 365,
1997 U.S. Dist. Lexis 11390 and 1996 U.S. Dist. Lexis 15571 (S.D.N.Y); prior
rulings at 1996 U.S. Dist. Lexis 15571; 1996 U.S. Dist. Lexis 18890; and 1996
U.S. Dist. Lexis 19346. [1998 FP 119-20]
A Superior Court jury in Los Angeles has awarded a
private sector manager $21,900,000 for wrongful termination after he reported
potentially illegal conduct. Darghous v. Johnson Controls Inc., 98-12
Cal.Bar.J. Trials Digest (Cal. Super.Ct. 1998). {N/R}
Supreme Court allows an untenured employee to sue
his superiors, claiming that he was fired for testifying before a grand jury.
Haddle v. Garrison, 1998 U.S. Lexis 8081, 525 U.S. 121, 119 S.Ct. 489. [1999 FP
14]
Federal appeals court rejects the suit of an
officer who had been fired for disobeying an order to strip search three
prisoners and then lying about her insubordinate behavior. The fact she had
sent two memos complaining about the minor deportment of other officers did not
prove she was fired in retaliation for whistleblowing. Gubitosi v. Kapica,
#97-2575, 1998 U.S. App. Lexis 20223, 14 IER Cases (BNA) 437, 1998 WL 500141
(2nd Cir.). [1998 FP 174-5]
Federal appeals court affirms termination of
police officer who accused coworkers of second-degree murder because they
failed to administer CPR to a man they had shot. His remarks undermined morale,
and no reasonable person could believe his accusations were justified. Lytle v.
City of Haysville, 138 F.3d 857, 13 IER Cases (BNA) 1355 (10th Cir.). [1998 FP
110-11]
FBI to pay $1,466,000 to an agent who reported
problems in its crime lab. $300,000 of the total is to settle his privacy
claims. Attorney fees also to be paid. Whitehurst v. Fed. Bur. of Inves.,
#96-CV-00572, (D.D.C. 1998). [1998 FP 61-2]
Federal appeals court overturns a suspension of a
supervisor who gave a trainee officer a poor evaluation. INS management claimed
the negative rating was in retaliation for being reported by the trainee for a
minor transgression. Frederick v. Dept. of Justice, 1996 U.S. App. Lexis 81, 73
F.3d 349 (Fed. Cir.). [1997 FP 141-2]
Misconduct, not whistleblowing, was the reason
for the discharge of an INS inspector. The decision to investigate the officer
was not a pretext for retaliation. Geyer v. D.O.J., 1997 WL 163507 and 334944
(Fed.Cir.); 1996 WL 543268 (Fed.Cir.). {N/R}
Former federal correctional officer awarded
$500,000 in whistleblower suit. Asberry v. United States (C.D. Cal. 5/30/97).
L.A. Times May 30. 1997 p. B-3 (Online archives). [1997 FP 109]
Officer receives $175,000 to settle whistleblower
suit. He claimed he was demoted after accusing a superior for environmental
crimes. Mensch v. Cal. Dept. Fish & Game (E.D.Cal. 1997). S.F. Recorder
(6/4/97 Online edit). {N/R}
City of Los Angeles agrees to pay $430,000 to a
police officer who claimed retaliation and harassment, following her public
criticism of fellow officers for their racial attitudes and discrimination.
Bouey v. City of Los Angeles, L.A. Co. Super.Ct. BC110011; 109 (241) L.A.D.J. 3
(stlmt. summ.); Mar. 13, 1996 L.A. Times p. B-1. [1997 FP 29-30]
Texas Supreme Court adopts an objective test on
whistleblower protection; the motives of the employee are irrelevant. Wichita
Co. v. Hart, 917 S.W.2d 779, 11 IER Cases (BNA) 641 (Tex. 1996. [1997 FP 30]
Sweeping New York State Executive Order requires
all state officers and employees to become whistleblowers; new IG Office given
subpoena powers. N.Y. Executive Order #39 (June 17, 1996). [1996 FP 141-2]
Appellate court disallows expert witness
testimony concerning a "whistle-blower profile." $250,000 verdict set
aside. Adams v. Amore, 895 P.2d 1016 (Ariz.App. 1994; Rev. den. 1995). [1996 FP
29-30]
Supreme Court declines review; trial and
appellate courts held that Texas corrections officials did not impose
retaliatory discipline because of an officer's whistleblowing activities, even
though a jury ruled in her favor. Pierce v. Tex. Dept. Crim. Justice, 37 F.3d
1146 (5th Cir. 1994); cert. den., 63 LW 3817 (1995). [1995 FP 125-6]
Appellate court affirms damage awards and
attorneys fees given five high ranking police officers, who were demoted after
they publicly complained the city manager violated a charter provision when he
named a new police chief. Beaumont (City of) v. Bouillion, 873 S.W.2d 425 (1993).
{N/R}
Probationary police officer, who claimed his
discharge was in retaliation for complaining about falsified reports, recovers
$325,000. Nabulsi v. City of Long Beach, #BC092357, 107 (208) L.A.D.J. V&S
5 (L.A. Co. Super. 1994). [1995 FP 30]
Ex L.A. County employee wins $1.5 million for
wrongful termination after he reported his superiors for purchasing an
unnecessary computer. Hall v. Weil, L.A. Co. Super.Ct. #VC009721, 107 (150)
L.A.D.J. V&S 9 (8/5/94). [1995 FP 14]
Three sheriff's deputies, who suffered
retaliation after reporting suspected misconduct to an outside agency, recover
$396,350. Wanish v. Dachel, (W.D. Wis. 1994). Ref: 124 (63,64) Chippewa Herald
Telegram 1. [1994 FP 158]
Mississippi supreme court modifies at-will employment
doctrine and imposes an exception where an employee is terminated for refusing
to engage in illegal conduct or for reporting it. McArn v. Allied B.T. Co., 626
S.E.2d 603, 8 IER Cases (BNA) 1317 (Miss. 1993). [1994 FP 14]
Discharged police officer could sue under the
"whistleblower" protection act, without exhausting civil service
appeals. Hatton-Ward v. Salt Lake City, 828 P.2d 1071 (Utah App. 1992). [1993
FP 30]
Federal court upholds claim of terminated
inspector who refused to grant a permit for deficient work, and reporting his
superior to police for improperly accepting gifts from contractors. Roper v.
County of Chesterfield, 807 F.Supp. 1221 (E.D.Va. 1983). [1993 FP 94]
Nevada statutes allow limited
"whistleblower" protections; retaliation broadly defined. Nev. Laws
1991, Ch. 607, 672 (Eff. 10/1/91). [1992 FP 14]
A municipal employee who blows the whistle on
corruption is deprived of his federally protected civil rights if promotions
are denied him in retaliation. Wetzel v. Hoffman, 928 F.2d 376 (11th Cir.
1991). [1992 FP 57].
Florida sergeant who claims he was demoted for
reporting misconduct could file suit under Whistleblowers Act without
exhausting administrative remedies. Ujcic v. City of Apopka, 581 So.2d 218
(Fla.App. 1991). [1992 FP 110] Ex police chief and sergeant recover $264,464
for wrongful termination, following their disclosure of misconduct of two city
council members. Case modified on appeal and remanded for reassessment of
damages. Roberts v. Joiner, 590 So.2d 195 (Ala. 1991). [1992 FP 174]
Nevada statutes allow limited
"whistleblower" protections; retaliation broadly defined. Nev. Laws
1991, Ch. 607, 672 (Eff. 10/1/91). [1992 FP 14]
Whistle-blowing action by police officers
disrupted dept. efficiency; officers motivation was also a personal grudge.
Suit against city and officials dismissed. Perry v. City of Kinloch, 680 F.
Supp. 1339 (E.D. Mo. 1988).
Officer, denied promotion and transferred for
exposing cover-up, awarded $50,000 compensatory and $250,000 punitive damages
against chief. Martinez v. Vigil, (unreported) U.S. Dist. Ct., Albuquerque, NM
(11/4/86).
Whistle-blowing lieutenant entitled to $20,750 in
compensatory and $28,000 in punitive damages against superiors who terminated him.
Williams v. Board of Regents of Univ. of Georgia, 629 F.2d 3740 (5th Cir.
1980).