Whitmore v. Dep't of Labor, No. 11-3084 (Fed. Cir. 2012)Annotate this Case
Whitmore began his federal government career in 1972. In 1990 his group transferred to the Occupational Safety and Health Administration. Prior to 2005, Whitmore regularly received better than satisfactory performance reviews, bonuses, and awards, and was never subject to discipline. In 2005, Whitmore began making public disclosures that OSHA was failing to enforce its recordkeeping requirements and acquiescing in industry reports of impossibly low numbers of injuries and illnesses. He provided comments to newspapers. Also in 2005, Whitmore provided an affidavit supporting a co-worker in her Equal Employment Opportunity complaint for alleged discrimination and retaliation by her managers at OSHA. Due to various medical and personal matters, Whitmore took significant leave from work. Following a number of additional incidents, he was removed from his position. The Merit Systems Protection Board upheld the termination. The Federal Circuit reversed. In analyzing whether the DOL had proven by clear and convincing evidence that Whitmore would have been removed regard-less of his whistleblowing disclosures (5 U.S.C. 2302(b)(8)), the MSPB excluded or ignored evidence offered by Whitmore necessary to adjudicate Whitmore’s retaliation claim, and otherwise applied the law incorrectly.