OSHA whistleblower's retaliation claim revived

Wed May 30, 2012 2:12pm EDT

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(Reuters) - A federal appeals court has revived a claim by a former senior Department of Labor official who says he was fired because he publicly criticized his agency for letting companies underreport workplace injuries.

Saying a 1989 federal law reflects Congress' desire to protect whistleblowers, the U.S. Federal Circuit Court of Appeals on Wednesday said Robert Whitmore, a former head of the recordkeeping group in the department's Occupational Safety and Health Administration arm, deserves a new chance to show his 2009 firing was the result of retaliation.

It said a federal Merit Systems Protection Board judge wrongly ignored evidence to support Whitmore's claim that he was fired for publicly alleging that OSHA was acquiescing in low injury and illness reports, hampering its investigative and enforcement activity. The Labor Department maintained it fired the 37-year department veteran over his disruptive behavior.

"Despite Robert Whitmore's highly unprofessional and intimidating conduct, which may well ultimately justify some adverse personnel action, he is nevertheless a bona fide whistleblower" deserving the "full scope of protection" under the federal Whistleblower Protection Act, Judge Jimmie Reyna wrote for a three-judge appeals court panel.

"Whistleblowing provides an important public benefit that must be encouraged when necessary by taking away fear of retaliation," the judge added. "Congress decided that we as a people are better off knowing than not knowing about such violations and improper conduct."

Paula Dinerstein, a lawyer for Whitmore, had no immediate comment. Whitmore could not immediately be reached. The U.S. Department of Justice, which argued the Labor Department's case, did not immediately respond to a request for comment.

In 2009, the Government Accountability Office, a nonpartisan Congressional watchdog, said many companies underreport work-related injuries and illnesses because they fear higher workers' compensation costs or the loss of contracts. That same report said workers may underreport injuries because they fear retaliation, or the loss of rewards based on safety records.

OSHA has said there were 3.06 million nonfatal and 4,690 fatal workplace injuries and illnesses in the U.S. private sector in 2010.

Whitmore had in 2005 spoken to the Oakland Tribune regarding injury data related to construction work on San Francisco's Bay Bridge, The next year he assisted in a Charlotte Observer probe into unreported injuries in the poultry processing industry.

By late 2006, Whitmore began having confrontations at work, culminating in an July 2007 argument where he accused his supervisor of spitting on him and threatened to "knock him into the basement," the decision said.

Whitmore was then put on paid administrative leave for two years before being let go. He claimed to have had consistently strong performance reviews until his last few years with OSHA.

The Federal Circuit said the MSPB judge handling Whitmore's case never properly assessed whether the Labor Department would have taken the same actions had he not been a whistleblower.

It also said the judge should have examined any role the Labor Department may have had in sparking Whitmore's behavior.

The case is Whitmore v. Department of Labor, U.S. Federal Circuit Court of Appeals, No. 2011-3084.

(Reporting By Jonathan Stempel in Toronto; editing by M.D. Golan)

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