OSHA whistleblower wins court victory

A whistleblower who was fired by the Occupational Safety and Health Administration after complaining publicly about the poor quality of injury and illness data kept by employers has won a major court victory.

Robert Whitmore, a supervisory economist with OSHA’s Office of Statistical Analysis, lost his job in 2009, ostensibly for insubordination. On Wednesday, the U.S. Court of Appeals for the Federal Circuit held that Whitmore was fired in retaliation for telling journalists and Congress about OSHA’s failure to crack down on companies submitting suspect data. OSHA is supposed to use the data to identify potentially unsafe workplaces; accuracy, therefore, is crucial.

The Merit Systems Protection Board upheld Whitmore’s firing, finding that he had acted in a threatening manner toward a supervisor. The appeals court, however, found that OSHA failed to provide “clear and convincing” evidence that Whitmore’s whistleblowing had no bearing on his dismissal. The case will go back to the board for rehearing.

The court found that Whitmore’s airing of concerns about employer recordkeeping, beginning in 2005, led to “increasingly strained relationships with OSHA officials” and “paralleled his increasingly poor performance reviews and adverse personnel actions after decades of exceptional service.”

The court went on: “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.”

Whitmore would like to have his job back, his lawyer, Paula Dinerstein, told the Center for Public Integrity on Thursday. He went public with his concerns because “OSHA for a long time had not been enforcing [recordkeeping] requirements,” said Dinerstein, senior counsel with Public Employees for Environmental Responsibility, which advocates for federal whistleblowers. “In certain industries, [injury and illness] rates were so low that nobody could possibly believe them. OSHA was accepting really low numbers and was actually bragging about them, saying, ‘Look how much progress we’ve made.’”

An OSHA spokesman did not immediately respond to a request for comment.