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Fired whistleblower can sue state OSHA officials that outed her

3 minute read

The James R. Browning U.S. Court of Appeals Building, home of the 9th U.S. Circuit Court of Appeals,. REUTERS/Noah Berger

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  • Office supervisor says Nevada OSHA officials outed her as informant, blocked investigation
  • At-will employees have right to due process too, court holds

(Reuters) - A federal appeals court on Thursday revived most of a former medical-office supervisor’s lawsuit against four Nevada OSHA officials for outing her as whistleblower and allegedly conspiring with the employer to “scuttle” her retaliation complaint after she was fired.

The 9th U.S. Circuit Court of Appeals said Helen Armstrong – represented by John Tye of the nonprofit Whistleblower Aid and attorneys at Messing & Spector – raised at least two plausible grounds for suit, including a due process claim, and should be allowed to amend her complaint to flesh out others.

The decision overturns a ruling by a federal judge in Las Vegas, who dismissed the lawsuit in 2020 after finding that Armstrong, as an at-will employee of a private company, had no constitutionally protected interest in keeping her job anyway.

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That general rule has been modified by state laws that protect whistleblowers from retaliation for reporting health and safety violations, Circuit Judge Marsha Berzon wrote. She was joined by Circuit Judge A. Wallace Tashima and 6th Circuit Judge Danny Boggs, who sat on the panel by designation.

“Today’s opinion is a strong affirmation that even for ‘at-will’ employees, the U.S. Constitution provides whistleblowers with important legal protections,” Tye said in an emailed statement.

The Nevada Attorney General’s Office is “evaluating the decision and determining any next steps,” spokesman John Sadler said.

According to the 9th Circuit, Armstrong had a spotless 23-year record at Ear Nose and Throat Associates (ENTA) when she became concerned about “unsafe medical practices” including the use of non-sterile syringes and the sale of expired medication.

After sharing her concerns with management, she filed a confidential complaint with Nevada OSHA in February 2014. NOSHA investigated and issued several citations and fines.

Armstrong said her employer suspected she was the informant and demoted her. She filed a retaliation complaint with NOSHA, but withdrew it three weeks later after being diagnosed with cancer. She said she could not risk losing her job and her health insurance.

NOSHA Chief Investigator Lara Pellegrini sent Armstrong a letter acknowledging the withdrawal – and sent a copy of the letter to her employer, revealing her identity.

Armstrong suffered more retaliation and again complained to NOSHA, amending the complaint after she was fired that November. However, she alleged that Pellegrini and three other NOSHA officials blocked their own investigators from acting on her claim and closed the file without telling Armstrong.

The case is Helen Armstrong v. Terri Reynolds, Steve George, Jess Lankford and Lara Pellegrini, 9th U.S. Circuit Court of Appeals, No. 20-15256.

For Armstrong: Phillip Spector and Noah Messing of Messing & Spector and John Tye of Whistleblower Aid

For Reynolds et al: Jeffrey Morgan Conner of the Nevada Attorney General’s Office

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