Whitmore v. Dep't of Labor

• Decision Date: 30 May 2012
• Docket Number: No. 2011–3084.,2011–3084.
• Citation: 680 F.3d 1353,33 IER Cases 1527
• Parties: Robert Wade WHITMORE, Petitioner, v. DEPARTMENT OF LABOR, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

680 F.3d 1353

33 IER Cases 1527

Robert Wade WHITMORE, Petitioner,

v.DEPARTMENT OF LABOR, Respondent.

No. 2011–3084.

United States Court of Appeals, Federal Circuit.

May 30, 2012.

Paula Dinerstein, Public Employees for Environmental Responsibility, of Washington, DC, argued for petitioner.

Lauren A. Weeman, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Todd M. Hughes, Deputy Director. Of counsel on the brief were James V. Blair, Acting Deputy Associate Solicitor, and Jennifer M. Dillard, Attorney, United States Department of Labor, of Washington, DC.

Before RADER, Chief Judge, and O'MALLEY and REYNA, Circuit Judges.

REYNA, Circuit Judge.

Robert Whitmore (“Whitmore”) appeals the decision of the Merit Systems Protection Board (“MSPB”), which declined to set aside Whitmore's removal from his position with the Department of Labor (“DOL”). While the DOL alleged that Whitmore's removal was due to his increasingly disruptive and insubordinate behavior, Whitmore alleged that the removal was an unlawful retaliation for his lawful whistleblowing disclosures. In analyzing whether the DOL had proven by clear and convincing evidence that Whitmore would have been removed regardless of his whistleblowing disclosures, the MSPB excluded or ignored evidence offered by Whitmore necessary to adjudicate Whitmore's retaliation claim, and otherwise applied the law incorrectly. Accordingly, we vacate and remand for further fact finding wherein all of the relevant evidence is considered pursuant to correct legal standards.

I. Factual Background

Whitmore began his 37–year career in the Department of Labor in 1972 as an economist with the Bureau of Labor and Statistics (“BLS”). Beginning in 1987, Whitmore served as the head of the Recordkeeping Requirements group of the BLS, and the group was transferred in 1990—with Whitmore remaining as its head—to the Office of Statistical Analysis (“OSA”), Directorate of Evaluation and Analysis (“DEA”) in the Occupational Safety and Health Administration (“OSHA”). For his entire career prior to 2005, Whitmore regularly received better than satisfactory performance reviews, bonuses, and awards, and was never subject to any discipline.

In 2005, Whitmore began making public disclosures alleging that OSHA was failing to enforce its recordkeeping requirements and acquiescing in industry reports of impossibly low numbers of injuries and illnesses, which allegedly hampered OSHA's ability to target inspections and undertake enforcement actions to prevent such injuries and illnesses. In April of 2005, Whitmore provided comments for an article in the Oakland Tribune regarding questionable worker injury numbers being reported by a bridge construction company that had partnered with California OSHA, which is overseen by federal OSHA. Whitmore was quoted as saying he found the reported injury rates in the dangerous work of construction on the Bay Bridge were “hard to believe, and require verification,” and also stated that the company's practices pressured workers to avoid reporting injuries. A954, A960.¹

Also in 2005, Whitmore provided an affidavit supporting a co-worker, Kim Nguyen, in her Equal Employment Opportunity (“EEO”) complaint for alleged discrimination and retaliation by her managers at OSHA. Whitmore's affidavit attested in particular to improper discriminatory action by OSHA official Bob Pitulej. Nguyen's case was resolved via settlement, and Pitulej later became the Deputy Director of DEA within Whitmore's chain of command.

The record shows that shortly after the Oakland Tribune article appeared, Keith Goddard, DEA's Director, told Mark Kitzmiller, an OSHA employee supervised by Whitmore, that Steve Witt, OSHA's Director of Cooperative and State Programs, was upset about Whitmore's comments in the Oakland Tribune. Testimony from Kitzmiller indicates that Witt said he was “going after” Whitmore. A482, A508. Whitmore's comments were viewed by Goddard as “unprofessional” for being made “improperly and without permission” to speak on behalf of OSHA. A899–900, A1037–38. Goddard would later propose Whitmore's removal in 2007, but Witt was the proposing official in Whitmore's ultimate removal in 2009, as explained below.

After the Oakland Tribune article, Whitmore's performance review was changed from “highly effective” to “meets expectations” by his direct supervisor, Joe Dubois. It was Whitmore's first performance review in 35 years in which he was not rated as “outstanding” or “exceeds expectations.” What followed was a two-year period in which Whitmore made additional whistleblowing disclosures, throughout which time tension between Whitmore and his supervisors continually increased until reaching a breaking point in July of 2007.

A. Tensions Mount

Due to various medical and personal matters, Whitmore had been taking a significant amount of time on leave from work. Following the 2005 Oakland Tribune article, however, Whitmore's leave totals as reported by Dubois soon began to diverge from the totals maintained by the payroll system and from Whitmore's own informal calculations. Whitmore's attempts to speak with Dubois and/or Goddard about this issue were ignored or met with hostility. Whitmore and Dubois got into numerous arguments, resulting in a strained professional relationship.

In early 2006, Whitmore began working with reporters for the Charlotte Observer on a series of articles relating to non-reported injuries in the poultry processing industry. One of the articles in the series is titled “He says his agency is at fault—Recordkeeping chief says OSHA lets companies underreport injuries.” A956–66, A696. The article reported Whitmore as stating that OSHA was “leaving businesses to police themselves” and had little awareness of the hazards in certain industries. Id.

By late 2006, in response to Whitmore's continued attempts to have his leave time properly granted and credited, Dubois instituted a special personnel procedure, unique to Whitmore, requiring Whitmore to present “an original doctor's note supporting [his] illness claim” whenever he called in sick. A768. Both Dubois and Goddard ignored Whitmore when he requested leave for serious health or family problems, and Dubois would charge Whitmore with Leave without Pay and Away Without Leave even though Whitmore had been directed by his physician to take time off.

In 2007 Whitmore posted an offensive sign on his door, stating that that everyone must knock to enter his office, and that “P.S. That includes you Ms. Feeling,” referring to Dubois's assistant (actually named Cheryl Fielding). A752, A826.001–.003. Whitmore testified that he believed Ms. Fielding was snooping in people's offices, and that given the hostility he felt generally directed toward him around OSHA, he was concerned for his safety. A401–02. After being repeatedly asked to remove the sign, Whitmore instead changed the name from “Ms. Feeling” to “Joe” Dubois. A752, A826.002.

Throughout this time period, Whitmore sent a number of emails highly critical of if not hostile to Dubois, copying Whitmore's staff as well as OSHA officials having nothing to do with Whitmore's leave or his disputes with Dubois. A767–826 (stating, for example, “I had difficulty sleeping last night after the week-long additional harassment that you put me through ... we both know the stress you are giving me is intentional and has got to stop”; “If I am not paid my full salary for this pay period, and done so in a timely manner, I will hold you personally responsible”; and “this illegal action smacks of retaliation”). This insubordinate email behavior by Whitmore escalated over time, and resulted in Whitmore's being admonished by Robert Poogach, the Deputy Director of OSHA's Administrative Office, for copying uninvolved parties on his private issues, but Whitmore did not cease such practices. A818 (“I would also add my disappointment that in your email to me you chose to continue your practice of cc'ing staff members in communications that does [sic] not properly concern them.”). For his part, Dubois perpetuated such argumentative email threads between himself and Whitmore, copying uninvolved OSHA officials. See, e.g., A790 (copying Goddard and six other OSHA employees on email stating “I have no control over this [religious comp time policy], but you whined about it for several months”); A783–84 (copying Goddard and six other OSHA employees on email stating “[y]ou have over two years of advanced sick leave, I am not approving any more”); A798 (copying Goddard and two other OSHA officials on email to Whitmore, stating “for the third time, I direct you to remove the sign taped to your door ... [a]nd thank you for slamming your door in my face”).

On March 20, 2007, Whitmore submitted a Waste, Fraud, and Abuse claim to the DOL office of the Inspector General (“IG”) regarding an illegal gambling pool for the NCAA Men's Basketball tournament conducted by Dubois using government resources. Dubois' computer was confiscated by the IG, but no charges were ever pressed against him. On March 22, 2007, two days after Whitmore disclosed Dubois' purported illegal gambling activities, Dubois notified Whitmore that he was taking away Whitmore's authority as a rating official—i.e., removing Whitmore's responsibility for conducting the performance evaluations of the OSA personnel under Whitmore's supervision.

In early 2007, the record shows that Dubois told Kitzmiller that he was intentionally altering Whitmore's timesheets to deprive Whitmore of leave time. In May 2007, Whitmore's numerous requests for a formal leave audit were finally granted, and the results were much closer to Whitmore's totals than Dubois's, finding 75 hours of leave time that had not been properly credited.

Whitmore received “minimally...