Washington, DC — The U.S. Occupational Safety & Health Administration’s top expert and foremost critic on workplace injury and illness records has accepted an $820,000 payment to end his legal challenge of his 2009 termination, according to a settlement agreement decision posted today by Public Employees for Environmental Responsibility (PEER). The settlement follows a unanimous federal appeals court ruling last year striking down administrative approval of his removal.
For nearly 25 years, Robert Whitmore was the top OSHA official overseeing OSHA recordkeeping requirements and had repeatedly spoken out both internally and in the media and before Congress about the agency’s failure to address industry’s significant underreporting of workplace illnesses and injuries. OSHA had placed Whitmore on paid administrative leave for more than two years before deciding to terminate him in 2009 following media coverage of his extended suspension.
As part of the settlement, Whitmore, age 66, agreed not to apply for any Department of Labor position during the next fifteen years and if he does “he will be deemed automatically ineligible for such position.”
In its May 2012 ruling, the U.S. Court of Appeals for the Federal Circuit found evidence that OSHA managers –
- Plotted to “get” Whitmore for embarrassing the agency;
- Conducted a trumped-up investigation used to justify his removal; and
- Fired Whitmore for being part of a loud dispute with a co-worker but took no action against the co-worker for actions similar to those of Whitmore.
The Federal Circuit remanded the case back to the Merit Systems Protection Board which had upheld OSHA’s termination of Whitmore. In doing so, the Federal Circuit chided the MSPB for handling the case in a manner it found to be “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.” The Court found that the earlier MSPB action “ignores or overlooks essentially all of the evidence to support” Whitmore while excluding “considerable countervailing evidence.” On remand, PEER was joined by attorney Robert Seldon in representing Whitmore.
“This case stands for the proposition that an agency cannot incessantly harass a whistleblower and then punish him if he or she reacts,” stated PEER Senior Counsel Paula Dinerstein, who successfully argued the Federal Circuit case for Whitmore. “We expect that that the size of this settlement will bolster the effect of the Federal Circuit decision in deterring federal agencies from retaliating against whistleblowers.”
The case settled just days before the rehearing was scheduled to begin before the same MSPB administrative judge who heard the case the first time.
"I trust that the landmark Circuit Court decision PEER secured in my case, in addition to getting me a second bite at the apple, will prove invaluable to other whistleblowers in the future," Whitmore commented.
“Unfortunately, the recordkeeping deficiencies Bob Whitmore raised remain unaddressed,” Dinerstein added. “In addition, this case underlines the continuing hostility to whistleblowers inside the agency operating the largest whistleblower program in the nation.”