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OSHA Whistleblower Awarded $820K

Tuesday, July 9, 2013

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The federal agency tasked with protecting corporate whistleblowers has just signed an $820,000 settlement with one of its own, who had accused the agency of complicity in underreporting injury rates.

The Occupational Safety and Health Administration gave Robert Whitmore increasingly poor performance reviews and finally fired him after he publicly cast doubt on injury rates reported by OSHA in connection with construction on the San Francisco Bay Bridge Project and others.

'Impossibly Low Numbers'

Whitmore, now 66, also was quoted in the press as "alleging that OSHA was failing to enforce its recordkeeping requirements and acquiescing in industry reports of impossibly low numbers of injuries and illnesses."

Robert Whitmore
picsauditing.com

In news interviews and Congressional testimony, OSHA economist Robert Whitmore alleged that OSHA allowed employers to underreport their illness and injury rates. He was later fired.

That failure "allegedly hampered OSHA’s ability to target inspections and undertake enforcement actions to prevent such injuries and illnesses," according to a U.S.. Court of Appeals ruling that upheld his claims last year.

Whitmore, an economist, had been with the Labor Department since 1972. His division was transferred to OSHA in 1990, when he became head of the Directorate of Evaluation and Analysis for the Office of Statistical Analysis—a position he held until he was fired in 2009.

Whitmore's new settlement agreement, signed in June, admits no wrongdoing by OSHA.

'Outstanding' for 35 Years

Whitmore had an unblemished career for his first 35 years with the Department of Labor, regularly receiving  "outstanding" performance reviews, bonuses and awards, the Appeals Court said. He was never disciplined.

That all changed in 2005, when Whitmore spoke to the Oakland Tribune and other news outlets about OSHA's record-keeping practices on illness and injuries.

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 [Cal/OSHA], which is overseen by federal OSHA," the court said.

"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."

Bay Bridge
baybridgeinfo.gov

Whitmore told the Oakland Tribune in 2005 that Cal/OSHA injury rates on the Bay Bridge project were "hard to believe" and needed verification.

The same year, Whitmore supported a retaliation and discrimination claim by a co-worker against an OSHA official who later ended up above Whitmore in his chain of command.

'Unprofessional'

After the Tribune article, the court found, an OSHA official told colleagues that Whitmore's comments were "unprofessional" and that the offical was "going after" Whitmore.

Shortly after that, Whitmore's performance review was downgraded and, for the first time in 35 years, he was not rated as "outstanding" or "exceeds expectations." One supervisor starting trying to get Whitmore fired in 2007. and another finally succeeded in 2009, the court found.

The years between 2005 and 2009 saw additional whistleblowing disclosures by Whitmore and growing tension with his supervisors. The court's opinion paints an ugly picture of an OSHA office tarred by personal fights, nasty emails, snooping employees, and vengeful supervisors.

In 2006, the court said, Whitmore participated in a series of articles by the Charlotte Observer about OSHA's reporting rates, publicly saying that the agency was "'leaving businesses to police themselves' and had little awarness of the hazards in certain industries."

March Madness and Sick Leave

At the same time, discrepancies abruptly arose at OSHA between Whitmore's leave-of-absence records as kept by OSHA and Whitmore on one hand, and by his supervisor on the other hand. Supervisors also ignored Whitmore's requests for serious health issues, insisted on a doctor's note whenever he called in sick (a rule not applied to other employees,), and docked his pay when he was ordered by a physician to take time off, the court ruling said.

OSHA recordkeeping
OSHA

For 25 years, Whitmore headed the Directorate of Evaluation and Analysis for the Office of Statistical Analysis at OSHA. He alleged underreporting of injuries.

Whitmore responded to these situations with angry emails, frequently copied to multiple staff members and officials up the reporting chain.

In March 2007, Whitmore submitted a Waste, Fraud and Abuse claim to the DOL Office of Inspector General, regarding an NCAA March Madness pool run by a supervisor. The IG confiscated the supervisor's computer but did not charge him.

Immediately after that episode, the supervisor revoke Whitmore's authority as an OSHA rating official. It was also later revealed that that supervisor admitted to another employee that he was "intentionally altering Whitmore's timesheets to deprive Whitmore of leave time," the court found.

Shoving and Spitting

Memos written by supervisors began to circulate, calling Whitmore unstable and dangerous. The climax came in July, Whitmore and the supervisor got into a vicious hallway argument that included shoving and spitting.

OSHA inspectors
OSHA

Whitmore said OSHA was "leaving businesses to police themselves' and had little awareness of the hazards in certain industries."

Whitmore was then put on paid administrative leave for two years, then fired. No action was taken against the supervisor.

In June 2008, Whitmore testified before Congress "where he accused senior OSHA management of intentionally ignoring fraudulent data submitted by employers."

Whitmore appealed his firing administratively, but the appeal was denied. Last year's appellate ruling acknowledged "highly unprofessional and intimidating conduct" by Whitmore, but said he was a "bona fide whistleblower" who was entitled to protection under the federal Whistleblower Protection Act.

   

Tagged categories: Business management; Enforcement; Government; Health and safety; Laws and litigation; OSHA

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