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Employment & Labor Law for Public Safety Agencies


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Whistleblower Requirements and Protection

     Monthly Law Journal Article: Blowing the Whistle on Police Corruption, 2013 (10) AELE Mo. L. J. 501.
     Monthly Law Journal Article:
Whistleblower Protection for Public Safety Employees, Part 1, 2016 (2) AELE Mo. L. J. 201.
     Monthly Law Journal Article:
Whistleblower Protection for Public Safety Employees, Part 2, 2016 (3) AELE Mo. L. J. 201.

     A U.S. Department of Justice employee objected to certain grant-making decisions, reporting them to both the media and members of Congress. She also filed a complaint with the Inspector General, claiming fraud was involved. Based on her complaints, corrective action resulted. She claimed that she faced whistleblower retaliation, with her employer giving her improper low performance ratings, moving some of her duties to other employees, and canceling her authorization for telework. After prevailing on her claim with the Merit Systems Protection Board, she sought attorneys’ fees under 5 U.S.C. Sec 1221(g)(1)(B). A federal appeals court ruled that she was entitled to an attorneys’ fee award. The Merit Systems Protection Board (MSPB) erred in denying attorneys' fees to her for the services of one of the lawyers that represented the employee during the course of proceedings before the MSPB because the employee carried her burden of showing entitlement to some award of attorney’s fees. While the employee had stated that there could be some truth to the claim that the time charges should not be fully compensable, she never suggested that the charges were entirely unwarranted, and her statements were not a basis for denying attorney's fees in their entirety. Rumsey v. Dept. of Justice, #16-2661, 866 F.3d 1375 (Fed. Cir. 2017).

     An officer with the Bureau of Immigration and Customs Enforcement, an agency of the Department of Homeland Security, made disclosures of information about his employer’s alleged practice of releasing unaccompanied alien children to non-family sponsors with criminal records. He asserted that he was subject to adverse personnel action in retaliation for that protected whistleblowing activity. A federal appeals court found that his disclosures alleged serious breaches in DHS’s practices that threaten the safety of minor children. His non-frivolous allegations that such disclosures contributed to a negative personnel action deserved a merits hearing. Piccolo v. Merit Systems Protection Board, #16-2374, 2017 U.S. App. Lexis 17256 (Fed. Cir.).     A narcotics officer reported two other officers for allegedly filing false reports, and subsequently testified against them at a hearing that resulted in their firing. Following this, his fellow officers would not work with him. He retired six years later, and then sued the city, alleging retaliation based on his protected whistleblower activity by failing to assign or promote him to several positions. He sought discovery of the records of the officers selected for the positions to which he had applied, arguing that the documents were necessary to show the city’s stated business reason for its promotions—that the successful candidates were more qualified than him—was a pretext for retaliation. The city argued that the officers’ personnel records were not subject to discovery because they were innocent third parties who had not witnessed or caused Riske’s injury. An intermediate California appeals court ruled that the city should produce the reports for an in camera inspection and then production of all discoverable information should be ordered. It held that the statutory scheme governing the discovery of peace officer personnel records was not limited to cases involving officers who either witnessed or committed misconduct. Riske v. Superior Court, #B270043, 6 Cal. App. 5th 647, 211 Cal. Rptr. 3d 477, 2016 Cal. App. Lexis 1076

     A deputy sheriff who suffered a job-related injury applied for an industrial disability retirement. She also sought and eventually received advance disability pension payments while her retirement application was processed. She further sought penalties for an alleged unreasonable delay in receiving the advance payments. The workers’ compensation judge ruled that such penalties were available for the unreasonable delay in payment of advance disability pension payments, but deferred the decision on whether the delay in this case was unreasonable. The California Workers' Compensation Appeals Board ruled that it had no jurisdiction to award such penalties for unreasonable delay. An intermediate California appeals court held that the board did have jurisdiction to impose penalties for the unreasonable delay or denial of advance disability pension payments to local peace officers who are disabled on the job. Further proceedings were therefore ordered. Gage v. WCAB, #C081618, 6 Cal. App. 5th 1128, 2016 Cal. App. Lexis 1120.
     A purchasing agent for the federal Forest Service submitted a report to his supervisor that stated that he believed that another employee had violated the Federal Acquisition Regulation (FAR). The supervisor took no action, but rather instructed him to delete portions of the report. He followed those instructions but later sent an email to the U.S. Department of Agriculture’s Office of Inspector General again reporting the suspected misconduct, as well as stating that his supervisor had instructed him to cover it up. He was then terminated while still in his probationary period. A federal appeals court ruled that the Merit Systems Protection Board (MSPB) lacked jurisdiction to consider his claim that he was terminated during his probationary period because he notified his supervisor of employee misconduct because he did not raise that claim in a complaint he filed with the Office of Special Counsel (OSC). While he did file a complaint with the OSC which alleged that he was fired because he sent an email to the Department of Agriculture's Office of Inspector General, and that claim was rejected by the MSPB, this was not the same claim and the MSPB did not have jurisdiction to decide that claim until it was submitted to the OSC. Acha v. Dept. of Agriculture, #15-9581, 841 F.3d 878 (10th Cir. 2016).
     The Superintendent of Industries at a federal correctional center oversaw a prison factory that produced ballistic helmets primarily for military use, as well as occasionally serving as associate warden. He disclosed to the government-owned corporation that ran the prison and to the warden what he perceived to be the mismanagement of factory funds. The warden subsequently reassigned him, and over the next four and a half years, he was assigned to low level positions. The warden attributed these reassignments to unspecified Office of Inspector General (OIG) employees after the OIG investigated the alleged fund mismanagement. Finally, the warden assigned the plaintiff to sit on a couch in the lobby for eight months. The plaintiff appealed to the Merit Systems Protection Board, alleging violation of the Whistleblower Protection Act, 5 U.S.C. 2302(b)(8). The ALJ found that the government had rebutted his case. A federal appeals court reversed, finding that the government did not prove by clear and convincing evidence that it would have reassigned the plaintiff absent his protected disclosures. Miller v. Department of Justice, #15-3149, 2016 U.S. App. Lexis 21512 (Fed. Cir.).
     A city implemented a “directed patrols” policy, requiring police officers to engage with city residents even though the residents are not suspected of any wrongdoing. The program consisted of “a structured 15-20 minute deployment into a targeted area to accomplish a specific patrol or crime reduction function.” Officers are to obtain personal information from the individuals they interact with, if the individuals agree to provide it. During these encounters, officers should “approach community members" and "inquire about criminal activity or quality of life issues.” A police union sued, claiming the city had imposed an unlawful quota on arrests or citations because officers on supplemental patrol were expected to conduct a minimum of 27 directed patrols per shift and officers on regular patrol were expected to perform a minimum of 18; with failure to comply as cause for disciplinary action, in violation of N.J.S.A. 40A:14-181.2, an anti-quota law. Individual officers alleged First Amendment and whistleblower retaliation. A federal appeals court rejected the anti-quota law claim, since that law applies to arrests and citations, which the patrols policy did not require. The First Amendment retaliation claims were rejected, but the appeals court ruled that a whistleblower retaliation claim could proceed. under New Jersey's Conscientious Employee Protection Act, N.J. Stat. Ann. § 34:19-3. The officers established that they had a reasonable belief that the policy was illegal, that they performed a protected whistleblowing activity, that their transfers constituted an adverse employment action, and that there was a causal connection between the whistleblowing activity and the adverse action. Fraternal Order of Police Lodge 1 v. City of Camden, #15-1963, 2016 U.S. App. Lexis 20600 (3rd Cir.).

     A Social Security hearing officer failed to make a non-frivolous claim under the Whistleblower Protection Act (WPA), 5 U.S.C. 2302(b)(8)(A) for disciplinary action against him for making certain disclosures. The first two disclosures were not protected disclosures because an agency ruling or adjudication, even if erroneous, was not a violation of the law or gross mismanagement under the WPA, and the other three disclosures were not protected disclosures because communications concerning policy decisions were explicitly excluded from protection under the WPA. Daniels v. MSPB, #13-73913, 2016 U.S. App. Lexis 14602 (9th Cir.).
     An employee of the Centers for Disease Control and Prevention claimed that agency officials violated the whistleblower protections of 5 U.S.C. 2302(b)(8)(A) by retaliating against him for disclosures about agency practices, including that the Pocket PCs were outdated, had bad batteries, lost data, and presented data-entry problems. Because of this he was allegedly not invited to certain meetings, and discouraged from participating in certain projects to which he was assigned. Various supervisors also allegedly treated and evaluated him poorly and placed him on a Performance Action Plan. A federal appeals court reversed the dismissal of the claim, finding that the employee had adequately alleged that at least one of his supervisors knew of the disclosure at issue. Cahill v. Merit Sys. Protection Bd., #15-3152, 2016 U.S. App. Lexis 8554 (Fed. Cir.).
     Employees of the West Virginia Department of Health and Human Resources claimed that they were fired for uncovering and alerting others to irregularities with the procurement process used by the department. Summary judgment in favor of the employer was erroneous, because the Request for Proposal process was governed by a state statute and involved the expenditure of public funds. The plaintiffs raised a genuine issue of material fact as to whether their actions were protected whistle blowing under a state statute. There was also an issue as to whether their activities were improperly motivated, giving rise to a legitimate reason for discharge. Complex issues of intent and motivation were involved that could only be decided by a trier of fact. Taylor v. W. Va. Dept. of Health & Human Res., #14-0679, 2016 W. Va. Lexis 276.
     An FBI special agent was the leader of an operations group assigned the task of relocating a previously compromised undercover facility. A facility was leased from an owner who promised to contribute $70,000 to various facility improvements. The plaintiff both negotiated the lease and managed the tenant improvement funds. While doing this work, he made whistleblower-eligible disclosures regarding alleged misconduct by two individuals. After that, the plaintiff was given a low performance rating by his supervisor, removed as group leader, and reassigned. The plaintiff believed that these actions were retaliatory for the whistleblowing and therefore sent a letter to a U.S. Senator, who referred the matter to the Justice Department's Office of the Inspector General (OIG). The OIG investigated and issued a report. The Merit Systems Protection Board upheld the plaintiff's ultimate termination for alleged lack of candor under oath in an inquiry as to the accounting for the tenant improvement funds. A federal appeals court found that the lack of candor charges were not supported by substantial evidence, and that the Merit Systems Protection Board had erroneously barred the agent from raising an affirmative defense of whistleblower retaliation. Parkinson v. Dep't of Justice, #15-3066, 2016 U.S. App. Lexis 3614 (Fed. Cir.).
     An attorney hired by the International Boundary and Water Commission, a federal agency, within four months of hiring had prepared four legal memos challenging activities of the Commission as “gross mismanagement,” contrary to existing law, and characterizing certain officers as lacking “core competencies.” He also then submitted a report entitled “Disclosures of Alleged Fraud, Waste and Abuse” to the Office of Inspector General (OIG) and other federal agencies and informed his supervisor of his reports. His supervisor then fired him, listing his alleged failure to support the executive staff in a constructive manner as the reason. Relevant case law at that time established that reports made to an employee's supervisor about the supervisor's own conduct and reports made in the normal course of the employee's duties were not protected under the federal Whistleblower Protection Act. As a result, an administrative law judge, the Merit System Protection Board, and the U.S. Court of Appeals for the Federal Circuit found no unlawful retaliation.
     While these claims were pending, however, Congress enacted the Whistleblower Protection Enhancement Act of 2012, under which the legal memos at issue could be protected disclosures. That law can be applied retroactively to pending whistleblower cases. The plaintiff did not raise the issue of the change in the law while his petition for a rehearing was pending. Accordingly, the Merit System Protection Board refused to reopen his case, a ruling the federal appeals court upheld as the plaintiff had failed to exhaust his available Office of Special Counsel administrative remedies with respect to his legal memos, leaving the MSPB without jurisdiction to reopen his case. McCarthy v. Merit Sys. Protection Bd., #15-3072, 2016 U.S. App. Lexis 560 (Fed. Cir.).
     An employee of the Wisconsin State Department of Justice claimed that her employer took unlawful retaliatory action against her because she lawfully disclosed information in an email sent to her supervisor and two other employees expressing her concerns about her supervisor's announcement that the agency would provide the state Attorney General with 24-hour security services while he attended the Republican National Convention in another state. Her opinion was that this might be an improper use of state funds. One month later, she was removed from her job as Public Integrity Director and returned to her prior position as Special Agent-In-Charge. She claimed that her "disclosure" was protected from retaliation under a state whistleblower statute. The Wisconsin Supreme Court upheld the rejection of this claim. A mere opinion as to the lawfulness or appropriateness of a government action was not "information" being disclosed as defined in the statute. The email in question was also not a disclosure as all recipients already knew the information about the security plans. State Dep’t of Justice v. State Dep’t of Workforce Dev., #2013AP001488, 2015 WI 114, 2015 Wisc. Lexis 721
     A former IRS agent claimed that he was fired in retaliation for whistleblowing about the Exxon oil company allegedly perpetrating a $500 million tax fraud and IRS agents covering it up. A federal appeals court, however, found that the Merit Systems Protection Board properly dismissed his claim under the Whistleblower Protection Act. He failed to make a non-frivolous allegation of government involvement in Exxon's purported wrongdoing, and disclosures about purely private wrongdoing were not protected under 5 U.S.C.S. § 2302(b)(8) of the statute. Aviles v. Merit Sys. Protection Bd., #14-60645, 799 F.3d 457 (5th Cir.).
     A Correctional Department Lieutenant filed a lawsuit in federal court claiming both federal civil rights violations and violations of a California state whistleblower protection statute by his employer. He claimed that adverse actions, including his dismissal, were taken in retaliation for him disclosing alleged improper governmental actions to his superiors, including negligent inmate supervision resulting in an escape, exhibiting a movie to inmates that violated Department policy, attempts to collect overtime for work not done, and allowing in contraband. The trial court rejected the state whistleblower claim, finding that the plaintiff was barred from "relitigating" it because it had already been litigated during hearings before the state Personnel Board. A federal appeals court reversed, finding that the decision by the state Personnel Board did not preclude the plaintiff under theories of either res judicata or collateral estoppel from litigating his whistleblower retaliation damage claim in the trial court. Wabakken v. CA Dep't of Corr. & Rehab., #13-56075, 2015 U.S. App. Lexis 16307 (9th Cir.).
     A police chief sanctioned an officer for releasing to the media a recording of an Emergency Response Team's radio communications during an incident involving a suspect exchanging gunfire with officers and barricading himself inside a home. The officer claimed that this was unlawful retaliation for protected speech in violation of the First Amendment and a D.C. Whistleblower protection statute. The appeals court upheld the rejection of the First Amendment claim as the response team recording was within the provisions of a valid general order issued by the department against the disclosure of confidential information that could jeopardize ongoing investigations. The police department's interest in non-disclosure outweighed the interests of the public and the plaintiff in releasing the recording. Release of the recording could have harmed pending criminal investigations into the incident, since the confidential information concerning the barricade, if kept confidential, could provide a basis to gauge other evidence offered by witnesses and those involved in the incident. The whistleblower claim was rejected as the plaintiff failed to show how the release of the recording was a "protected disclosure" under the statute as in effect at the time of the incident. Baumann v. District of Columbia, #13-7189, 2015 U.S. App. Lexis 13530 (D.C. Cir.).
     A discharged fire captain sued the department under a D.C. whistleblower protection act. The trial court granted summary judgment to the defendant department, but a federal appeals court ruled that this was erroneous. The plaintiff claimed that she was unlawfully terminated in response to her protected communications to supervisors following a major fire at a high rise building. The trial court, the appeals court found, should have considered her communications individually, rather than grouping them into broad categories for consideration. Considering the communications individually, however, a reasonable jury could determine that at least one of these communications qualified as a protected complaint, because it disclosed alleged gross mismanagement or a substantial and specific danger to public health and safety. Additionally, the defendant department failed to show by clear and convincing evidence that it had legitimate, non-retaliatory reasons for its actions. Coleman v. District of Columbia, #12-7114, 2015 U.S. App. Lexis 12350 (D.C. Cir.).
     Fire investigators for the District of Columbia sued under the D.C. Whistleblower Protection Act, claiming that they had been unlawfully reassigned to less desirable jobs in retaliation for them having accused some of their superiors of gross mismanagement and workplace racial discrimination. But the employer made the unrebutted explanation that they had been reassigned because prosecutors refused to work with them and not because of their filing of Equal Opportunity complaints regarding alleged racial discrimination. The plaintiffs' failure to rebut this explanation meant that they had failed to create a genuine issue of material fact as to the reason for their reassignment. Additionally, their transfers to their new assignments occurred before their racial discrimination complaints were filed. Bowyer v. District of Columbia, #13-7012, 2015 U.S. App. Lexis 11624 (D.C. Cir.).
     A former chief deputy in the sheriff's office sued the sheriff, claiming that his termination after he raised complaints about recordings being made in interrogation rooms violated his rights under a state whistleblower protection statute as well as constituting unlawful retaliation in violation of his First Amendment rights. The First Amendment claims failed because his complaints were made within the scope of his employment duties and therefore his speech was not protected. And he failed to establish a claim under the Louisiana whistleblower statute, because he did not show that the sheriff's office, in making the recordings, committed an actual violation of state law.
Wilson v. Tregre, #14-31179, 2015 U.S. App. Lexis 8582 (5th Cir.).
     The U.S. Supreme Court held that a federal appeals court did not err in finding that the federal Transportation Security Administration (TSA) violated an air marshal's whistleblower rights by firing him for disclosing to a reporter that the TSA had decided to cut costs by removing air marshals from some flights even though there was supposedly credible information that al Qaeda was planning attacks on passenger flights in the U.S. The reason given for his firing was disclosing sensitive security information without authorization. When Congress used the phrase "specifically prohibited by law" in crafting an exception to the federal Whistleblower statute, it chose not to use the phrase "specifically prohibited by law, rule, or regulation," and therefore did not remove protection for unauthorized disclosures that violated rules or regulations but not laws. TSA administrative regulations did not qualify as "law" for purposes of the exception, and the statute authorizing the TSA to issue regulations did not specifically prohibit the disclosures at issue. Department of Homeland Security v. MacLean, #13-894, 2015 U.S. Lexis 755.
     An employee of the Texas Department of Human Services reported wrongdoing to his supervisor, who allegedly then disciplined him for doing so. He then reported the wrongdoing he claimed to have witnessed to his supervisor's supervisor, and subsequently to the lead program manager, after which he was fired. He sued his former employer under a state Whistleblower statute. The Supreme Court of Texas rejected the claim, holding that the plaintiff had not reported the alleged misconduct to appropriate law enforcement authorities (in this case the state's Office of Inspector General) as required for coverage under the statute. The court overturned a finding by an intermediate appeals court that the supervisors constituted appropriate law enforcement authorities. Additionally, the plaintiff, under the circumstances, could not have believed in good faith that he had done what was required for protection under the statute. Tex. Dep’t of Human Servs. v. Okoli, #10-0567, 2014 Tex. Lexis 685, 57 Tex. Sup. Ct. J. 1214
     A state statute protected a whistleblowing sheriff's deputy against retaliation even if he was not the first employee to report another deputy for alleged multiple unlawful acts, including a murder, a cover-up, and involvement in methamphetamine transactions. Additionally, substantial evidence supported a verdict that terminating the deputy for falsely reporting wiretapped conversations was a pretext. But the appeals court ruled that substantial evidence did not support the award of $2,006,015 in lost actual earnings, but upheld an award of $2,500,000 in non-economic damages. Hager v. County of Los Angeles, #B238277, 228 Cal. App. 4th 1538, 2014 Cal. App. Lexis 758, 38 I.E.R. Cas. (BNA) 1669.
     The Executive Director of the Idaho Peace Officer Standards and Training Council (POST) was terminated for allegedly failing to comply with directives regarding budget difficulties POST was having or certain personnel management issues, and how to address issues raised in an audit report. He sued, claiming that his firing violated two provisions of a state whistleblower's act involving good faith communication regarding a violation or suspected violation of the law, or refusal to carry out what an employee believes to be an unlawful directive. Finding that he had not engaged in protected activity, the trial court granted summary judgment to the defendant. The ruling was affirmed by the Idaho Supreme Court, which found that the plaintiff's belief that some of the directives given to him were illegal simply were not objectively reasonable. . Black v. Idaho State Police, #39822, 2013 Ida. Lexis 334.
    A former employee of the District of Columbia, fired from his job as an elevator inspector, sued the employer and four supervisors for violation of a District Whistleblower Protection Act. His firing was for allegedly soliciting work for his private business while on duty. A federal appeals court ruled that he had no possible claim against the individuals, as the statute provided no cause of action against individuals at the time of his firing. A subsequent amendment to the law allowing such claims did not apply retroactively. Payne v. District of Columbia Government, #11-7116, 2013 U.S. App. Lexis 11478 (D.C. Cir.).
     A federal Air Marshal went on television in disguise to criticize various actions and policies of the employing agency. He was removed from his job when another employee with the agency recognized his voice, since the interview with the reporter was deemed an unauthorized disclosure of sensitive security information. The Merit Systems Protection Board upheld his removal from the job by the Transportation Security Administration (TSA). A federal appeals court held that the board had incorrectly determine that the disclosure made fell outside the boundaries of the Whistleblower Protection Act as material prohibited by law from being disclosed. The court ordered further proceedings to examine whether, in fact, the particular information disclosed was specifically prohibited by law from being disclosed. MacLean v. Department of Homeland Security, #11-3231, 2013 U.S. App. Lexis 8485 (Fed. Cir.).
     A county employee claimed that she had been fired from her job as director of the county's 911 department in violation of a state whistleblower protection statute after she questioned the transfer of county funds from the county's ambulance funds and raised concerns about the ambulance service provided to the county. The Michigan Supreme Court held that the plaintiff had presented sufficient evidence so that reasonable people could differ as to the true motivation for eliminating her job. The defendants, therefore, should not be granted summary judgment, Debano-Griffin v. Lake County, #143841, 2013 Mich. Lexis 146.
     The federal istleblower Protection Enhancement Act has been passed into law. The statute expands on the Whistleblower Protection Act of 1989 by strengthening a wide range of protections for disclosures of government wrongdoing. It eliminates loopholes that had resulted in the protection of whistleblowers only when they are the first to report misconduct as opposed to subsequent reporters, clarifies that whistleblowers are protected for challenging the consequences of government policy decisions, and also clarifies that protection of critical infrastructure information does not override protection of whistleblowers under the Act.
    An African-American police officer was terminated after he blew the whistle on a detective and fellow officer in connection with a missing persons investigation he assisted them in, and in which the three of them failed to arrest two suspects or collect certain evidence in what later turned into a murder prosecution. The detective and other officer, both of whom are Caucasian were only recommended for suspension by the same Internal Affairs investigation that resulted in his firing. A jury awarded him $3.5 million on a whistleblowing claim, $2.5 million on as a breach of contract claim, and $500,000 (half compensatory and half punitive damages) on a race discrimination claim for the disparate discipline. An intermediate state appeals court overturned the whistleblowing and contractual awards, while upholding the race discrimination disparate discipline award. The city was protected from the whistleblowing claim by sovereign immunity, since whistleblowing is a tort rather than contract cause of action. As for the contract claim; it was based on statute saying that non-probationary officers can only be fired for cause, the court found that it was not a "contract." Holmes v. Kansas City Bd. of Police Cmsnrs., #WD72852, 364 S.W.3d 615, 2012 Mo. App. Lexis 133.
     Nurses who worked in the health care unit of a privately run jail failed to show that their employer violated an Indiana state whistleblower protection law by allegedly constructively discharging them for complaining about safety problems at the jail. The plaintiffs could not point to any violation of the law that they reported, which was a prerequisite to making a claim under the whistleblower statute. A federal appeals court also rejected the nurses' racial discrimination and hostile work environment claims. While the effect of the adoption of a shift rotation policy was to split up a predominately black shift, there was no evidence that the change was motivated by race. Ellis v. CCA of Tenn. LLC, #10-2768, 2011 U.S. App. Lexis 11577, 112 Fair Empl. Prac. Cas. (BNA) 791 (7th Cir.).
     
     A Supervisory Border Patrol Agent's disclosures were not protected by the federal Whistleblower Act because management was already aware of those allegations. Stiles v. Dept. of Homeland Security, #DA-1221-08-0402-W-2, 2011 MSPB 28.
     Whistleblower claim rejected. Management demonstrated that the employee, a language instructor, was unable to implement lesson plans with her students and a failed to demonstrate an acceptable level of teaching proficiency. Royal v. Dept. of the Army, #2010-3190, 2011 U.S. App. Lexis 5732 (Unpub. Fed. Cir.).
    Under the federal Whistleblower Act, a disclosure will not be protected if it is made as part of an employee's normal duties reported through normal channels or if the disclosure is made to the wrongdoer. Lane v. Dept. of Homeland Security, #DC-1221-10-0231-W-1, 2010 MSPB 245.
     Federal Merit Board orders the reinstatement of and back pay for a U.S. Park Police Chief who was fired after speaking out against manpower shortages, resulting in increased crime and drug activity in Washington area parks. Chambers v. Dept. of the Interior, DC-1221-04-0616-M-2, 2011 MSPB 7.
     Third Circuit rejects a retaliation suit against a city police officer who reported possible misconduct to state officials. She was transferred to the property room, without any loss of pay. "Plaintiff's transfer and the alleged comments and behavior directed towards her do not amount to punitive conduct that would deter a person of ordinary firmness from exercising her free speech rights, and ... the lack of adverse employment action was fatal to [her] claims. Revell v. City of Jersey City, #09-4207, 2010 U.S. App. Lexis 19407 (Unpub. 3rd Cir.).
     A DEA Agent's communications were not protected disclosures because he reported conduct as part of normal duties through normal channels. Kahn v. DoJ, #2009-3125, 2010 U.S. App. Lexis 18679 (Fed. Cir.).
     Federal appeals panel sustains three charges against the former chief of the U.S. Park Police, who claimed that she was terminated because of her whistleblower-protected public statements. Only one charge against her was protected by the Whistleblower Protection Act. The Merit Systems Protection Board must reconsider whether removal remains a reasonable penalty. Chambers v. Dept. of Interior, #2009-3120, 602 F.3d 1370, 2010 U.S. App. Lexis 8209 (Fed. Cir.).
     First Circuit confirms a jury award against Boston's sheriff of $360,000 in compensatory damages and $250,000 in punitive damages, plus attorney's fees and costs in the amount of $275,437. The plaintiff, a nurse, was barred from the jail after she reported the physical abuse of an inmate to the FBI. The jury had "significant evidence" indicating that a substantial factor in the sheriff's decision to bar the plaintiff from the House of Corrections was her communications with the FBI. They found the sheriff's conduct to be "reprehensible" Porter v. Cabral; Cabral v. Suffolk Co. Sheriff's Dept., #07-1633 & 07-1640, 2009 U.S. App. Lexis 24811 (1st Cir.).
     Federal appeals court reinstates a wrongful discharge suit brought by a city employee who reported a ghost payroll. Valentino v. Vil. of So. Chicago Heights, #06-3882, #2006 U.S. App. Lexis 16817 (7th Cir.).
     Federal Merits Systems Protection Board overturns the dismissal of a TSA employee’s whistleblower claim. Although he may have lacked formal education or training in explosives-related technology, his four years of experience in conducting tests using detection machines was more than sufficient to support a reasonable belief in the fallibility of the machines. Miller v. Dept. of Homeland Security, #DC-1221-08-0274-W-1, 2009 MSPB 75, 2009 MSPB Lexis 2328.
    Jury awards $3.127 million to a white L.A. police officer who claimed that he was involuntarily transferred for reporting that a sergeant had made racist statements about blacks and Latinos and had pilfered money from a Police Explorer fund. The award included $3 million in damages for emotional distress and $127,000 for past and future wage losses. Hill v. City of Los Angeles, L.A. Co. Super. Ct. (Verdict, 2008).
     Appellate court rejects a retaliation action brought by a campus officer who was not selected as chief, after he reported the prior chief for misconduct. The officer failed to prove his disclosure was a factor in the university’s decision to select a major with the state DPS instead of promoting him. Davenport v. Univ. of Arkansas, #08-1438, 2009 U.S. App. Lexis 2501 (8th Cir.).
Wrongful Discharge/Discipline: Damages & Settlements
     D.C. government employee, who lost her job after serving four months of jury duty, is awarded reinstatement, backpay, retroactive employment benefits, costs, attorney’s fees, and a statutory penalty of $5,000. Madison v. Dist. of Columbia, #07-289, 2009 U.S. Dist. Lexis 4630 (D.D.C.).
     Federal court dismisses §1983 damages claims brought by a whistle-blowing state corrections employee against the DoC. The 11th amendment bars monetary claims, but he could proceed on his complaint seeking declaratory and injunctive relief. Murray v. N.Y. Dept. of Corr. Serv., #08-CV-6383, 2008 U.S. Dist. Lexis 93131 (W.D.N.Y.).
     Seventh Circuit dismisses a whistleblower retaliation claim brought by a terminated corrections official. Although her report to the FBI was protected speech, she failed to present evidence that her supervisors knew that she had made the report. Trigillo v. Snyder, #06-2578, 2008 U.S. App. Lexis 23545, 2008 WL 4755789 (7th Cir.); prior decis. at 2006 U.S. Dist. Lexis 28598 & 22615 (C.D. Ill.).
     Ninth Circuit rejects a whistleblower claim raised by a terminated air marshal. He revealed to the media the contents of a DHS decision to suspend air marshal protection for overnight flights. The Whistleblower Protection Act did not apply to the TSA staffing decision because it was not a personnel action. Mac Lean v. Dept. Homeland Security, #04-17050, 2008 U.S. App. Lexis 19618 (9th Cir.).
     The failure to reappoint a detective sergeant constitutes an adverse employment action sufficient to support a §1983 action; his whistleblower claims should be decided by a jury, since there was a question of fact as to whether he was not reappointed because of his involvement in a grand jury investigation. Welch v. Campi, #072470, 2008 U.S. App. Lexis 20485 (1st Cir.).
     Whether a disclosure under the federal Whistleblower Protection Act is unprotected because "it was made as part of an employee's normal job duties," is governed by three categories into which a disclosure may fall, only the latter two of which are protected under the WPA: (1) disclosures made as part of normal duties through normal channels; (2) disclosures as part of normal duties outside of normal channels; and (3) disclosures outside of normal duties. "The third category involves the situation in which the employee is obligated to report the wrongdoing, but such report is not part of the employee's normal duties or the employee has not been assigned those duties." Kahn v. Dept. of Justice, #2007-3216, 2008 U.S. App. Lexis 12425 (Fed. Cir.).
     In a whistleblower action, the Federal Circuit remands the action for further findings, but writes that "removal was a reasonable penalty in light of [the appellant's] repeated violation of that trust." Chambers v. Dept. of Interior, #2007-3050, 2008 U.S. App. Lexis 3161 (Fed. Cir.).
     Federal court holds that city police officers that are fired for cooperating in a state investigation lack First Amendment protection. Unlike citizens, they have a duty to cooperate. Cheek v. City of Edwardsville, #06-2210, 514 F.Supp.2d 1220, 2007 U.S. Dist. Lexis 63097 (D.Kan.).
     Federal employee's complaint that training deficiencies could impair job safety was protected under the Whistleblower Protection Act of 1989; a subsequent reduction in her responsibilities was actionable as a reprisal. Johnston v. M.S.P.B., #2007-3167, 2008 U.S. App. Lexis 4476 (Fed. Cir.).
     Following the Supreme Court's 5-4 holding in Garcetti v. Ceballos, 547 U.S. 410 (2006), the Second Circuit rejects a retaliation lawsuit filed by a NYPD sergeant after he wrote a report about health concerns at his precinct. He was required to prepare the report in his role as the precinct Safety Officer, and was not writing as a citizen. Ruotolo v. City of New York, #06-3886, 2008 U.S. App. Lexis 2551.
     Police detective and a deputy police chief who reported alleged illegal conduct by fellow officers to the professional accountability bureau and to the chief of police were protected by Michigan Whistleblowers' Protection Act, where the act protects reports made within employee's own agency. "... the WPA does not require that an employee of a public body must report violations or suspected violations to an outside agency ..." Brown v. Mayor of Detroit, #132016, 26 IER Cases (BNA) 1057.
     Federal court refuses to dismiss a whistleblower action filed by a former police chief; his position was abolished by ordinance, he was reduced to lieutenant with no pay loss, and a public safety director assumed his administrative duties. "We cannot say as a matter of law that no reasonable jury could find that the actions taken in eliminating the position of chief of police ... did not amount to a wrongful intentional act or a wanton and willful disregard of [the plaintiff's] rights." The New Jersey whistleblower law allows a jury to award punitive damages. Ragan v. Fuentes, #1:05-cv-02825, 2007 U.S. Dist. Lexis 72605 (D.N.J.).
     A city's interest in promoting police efficiency does not outweigh a union official's First Amendment right to disclose allegations of misconduct to the FBI. See v. City of Elyria, #06-4195, 2007 U.S. App. Lexis 22308 (6th Cir.).
     Third Circuit rejects a free speech claim by trooper/instructors at a state police firing range who complained of hazardous conditions. They were speaking pursuant to their official duties when they complained through the chain of command and when they gave statements to the State Auditor. Foraker v. Chaffinch, #06-4086, 2007 U.S. App. Lexis 20739 (3rd Cir.).
     Two former, whistleblower Detroit police officers are awarded $6.5 million against Mayor Kwame Kilpatrick and the City of Detroit. The court instructed jurors that the state's whistleblower protection act required them only to determine if the officers believed the allegations were legitimate and whether they were punished for coming forward. Brown v. Kilpatrick, Wayne Co. Cir.Ct. (2007). Source: Detroit Free Press (9/12/2007).
     H.R. 1, Improving America's Security Act, became Public Law #110-53 in 2007; among other provisions, it creates rights for public transit, motor carrier and railroad whistleblowers. Workers will be able to seek reinstatement, back pay with interest, compensatory damages, litigation costs, expert witness fees, attorney fees, and punitive damages not exceeding $250,000.
     Montana canine officer who alleged retaliation after reporting that other two officers pilfered the drugs that he used to train his dog wins $1.3 million. The retaliatory acts included unwarranted discipline, denial of training opportunities and promotions. Feuerstein v. Billings Police Dept., #DV06-0332 (13th Dist. Ct. Montana, 2007); verdict summarized at 45 (2217) G.E.R.R. (BNA) 915.
     Keeping a detailed log on the errant activities of coworkers is not protected activity under the Idaho Whistleblower Law and was a waste of resources, justifying the termination of a fire dept. clerk. Curlee v. Kootenai Co. Fire & Rescue, #32794, 2007 Idaho App. 44.
     Two suburban Chicago police officers that were allegedly fired for speaking out about a fellow officer's purported use of cocaine, are awarded $1.75 million in compensatory damages, $120,000 in liquidated damages, and $245,000 in punitive damages. Sims v. Schultz, #03C381, Pacer Doc. 229; Wiseman v. Schultz, #03C382, Pacer Doc. 100 (N.D. Ill. 2007).
     Federal court refuses to dismiss a First Amendment suit brought by an employee that claimed that he was terminated after he submitted an analysis of the inefficient use of take home vehicles by police commanders. Franklin v. Clark, #04-2042, 2006 U.S. Dist. Lexis 73853 (D.Md. 2006). {N/R}
     Federal appeals court holds that a whistleblower who won $70,000 in her suit against the New York Air National Guard was entitled to a refund of the federal income tax she paid on compensatory damages awarded by the Labor Dept. Murphy v. Internal Revenue Serv., #05-5139, 2006 U.S. App, Lexis 21401 (D.C. Cir. 2006). {N/R}
    Former police commander wins $3.7 million in his whistleblower retaliation lawsuit brought against the chief and mayor -- including $2 million in punitive damages. Hare v. Zitek, #1:02-cv-03973, Pacer Docs 186 & 187 (N.D. Ill. 2006). [2006 FP Nov]
     Federal appeals court affirms the dismissal of a suit by a DEA Agent, under the Whistleblower Protection Act. He failed to prove that he had made a protected disclosure under the Act. In order to constitute a "disclosure" protected by the WPA, a statement must reveal something that was hidden and not known. Fields v. Dept. of Justice, #05-3133, 2006 U.S. App. Lexis 14746 (Fed Cir. 2006). {N/R}
     In a 5-4 decision, the Supreme Court holds that public employees who make statements as part of their official duties are not protected by the First Amendment purposes or insulated from disciplinary action. Garcetti v. Ceballos, #04-473, 2006 U.S. Lexis 4341, 74 U.S.L.W. 4257 (2006). [2006 FP Aug]
     U.S. Office of Personnel Management issues final regulations to implement agency reimbursement provisions of Title II of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act). 71 (90) Fed. Reg. 27185 (5/10/2006).{N/R}
     First Circuit, in a 2-to-1 decision, affirms a $125,000 award to a former undercover drug agent against two of his superiors. Following his complaints of possible corruption by coworkers, he was fired because of an expunged, three-year-old conviction for domestic abuse. Tejada-Batista v. Morales, 424 F.3d 97, 2005 U.S. App. Lexis 20109, 23 IER Cases (BNA) 828 (1st Cir.). {N/R}
     Disclosures of misconduct or waste, which are made as part of an employee's normal job responsibilities through normal channels, are not covered by the Whistleblower Protection Act. Blakemore v. Dept. of the Navy, #04-3444, 2005 U.S. App. Lexis 22842 (Fed. Cir. 2005). {N/R}
     A police chief, who was suspended with full pay for one month by the town manager based on variety of allegations that had never appeared in his personnel file, lacked a valid whistleblower claim. Tripp v. Cole, #04-2588, 425 F.3d 5, 2005 U.S. App. Lexis 20933, 23 IER Cases (BNA) 820 (1st Cir. 2005). {N/R}
     Supreme Court declines to review lower court holdings that dismissed the claims of an ex-FBI translator who claims that she was fired after she reported security problems and incompetence. Consideration of state secrets prevented her from maintaining her lawsuit. Edmonds v. Dept. of Justice, cert. den. #05-190, 2005 U.S. Lexis 8589, 74 U.S.L.W. 3321 (2005). {N/R}
     First Circuit upholds a jury finding that officials in the state's organized crime division terminated an undercover officer for disclosing mismanagement and possible corruption to a newspaper. Tejada-Batista v. Morales, #03-1841, 424 F.3d 97, 2005 U.S. App. Lexis 20109, 23 IER Cases (BNA) 828 (1st Cir. 2005). {N/R}
     Justice Dept. orders the FBI to reinstate a Chicago agent who faced dismissal for accusing his superiors of not doing enough to prevent the Sept. 11 attacks. The agent was suspended for insubordination, unprofessional conduct and talking to the media without approval. In re Robert G. Wright, Jr., FBI Office of Professional Responsibility (2005). {N/R}
     Navy adopts strong prohibition against whistleblower retaliation: "No person may take, or threaten to take, an unfavorable personnel action (including a referral for mental health evaluation), or withhold, or threaten to withhold, a favorable personnel action in reprisal against any member of the Armed Forces for making or preparing to make a protected communication, including an allegation of sexual harassment or unlawful discrimination, to one authorized to receive the communication." Military Whistleblower Reprisal Protection, SecNavInst 5370.7C (14 Oct. 2005). {N/R}
     Appellate court finds that a DHS employee who oversees access to facilities failed to prove that adverse personnel action was in retaliation for "whistleblowing" activities, although he did complain about the unauthorized issuance of ID cards. Scott v. Dept. of Homeland Security, #5-3083, 2005 U.S. App. Lexis 17258 (Unpub. Fed Cir. 2005). {N/R}
     Federal appeals court affirms dismissal of an ex-FBI translator who claims that she was fired after she reported security problems and incompetence. Consideration of state secrets prevented her from maintaining her lawsuit. Edmonds v. Dept. of Justice, #04-5286, 2005 U.S. App. Lexis 8116 (Unpub. D.C. Cir. 2005) affirming 323 F.Supp.2d 65 (D.D.C. 2004) and 272 F.Supp.2d 35 (D.D.C. 2003). [2005 FP Jul]
     Federal court dismisses 8 of 9 counts of a lawsuit brought by an FBI agent and his wife, claiming retaliation because his investigations of the Potts Party and Ruby Ridge standoff led to disciplinary action against high-ranking Bureau officials. FBI agents have limited rights to bring civil actions challenging adverse personnel actions. Roberts v. Dept. of Justice, #1:03cv1920, 2005 U.S. Dist. Lexis 5410 (D.D.C. 2005). [2005 FP Jun]
     Whistleblower law did not protect a North Carolina state trooper who was fired for omitting information about the use of force by another officer in his initial report, and then reported it in an amended report. "The purpose of the Whistleblower Act is to protect truthful reporting ..." Newberne v. Crime Control and Public Safety, #COA03-530, 606 S.E.2d 742, 2005 N.C. App. Lexis 176 (2005). [2005 FP May]
     Trial judge upholds firing of U.S. Park Police chief who publicly highlighted security profiles of Washington monuments. Her concern about budget underfunding and personnel understaffing were not protected by the First Amendment or the federal Whistleblower Act. Chambers v. Dept. of the Interior, #DC-1221-04-0616-W-1 (MSPB-ALJ 2004).[2005 FP Jan]
     Supreme Court declines to review a $952,000 award to a teacher who was fired after complaining about the administration's treatment of disabled students. Settlegoode v. Portland Public Schools, #02-35260, 371 F.3d 503 (9th Cir. 2004); cert. den., #04-313, 2004 U.S. Lexis 7419, 73 USLW 3285 (2004). {N/R}
     To establish a cause of action for retaliatory discharge in Illinois, a whistleblower must show that he was discharged in retaliation for his activities and that the discharge violated a clearly mandated public policy. Engstrom v. Provena Hospitals, #4-03-0965, 2004 Ill. App. Lexis 1390 (2004). {N/R}
     Federal appeals court rejects an allegedly involuntary retirement claim from a whistleblower. She failed to exhaust her administrative remedies. Rhodes v. Office of Personnel Mgmt. (IRS), #04-3184, 385 F.3d 236, 2004 U.S. App. Lexis 19367 (Unpub. Fed. Cir. 2004). {N/R}
     The filing of in internal grievance was not a "report" within the meaning of the Texas Whistleblower Act, which prohibits taking adverse personnel action against a public employee who in good faith reports a violation of law. A divided appellate court rejected the appeal of a sergeant's demotion. County of Bexar v. Steward, #04-03-00580-CV, 139 S.W.3d 354, 21 IER Cases (BNA) 677, 2004 Tex. App. Lexis 4249 (4th App. Dist. 2004). {N/R}
     Federal court dismisses a whistleblower action brought by a terminated FBI contract translator for the FBI. Although the plaintiff alleged security lapses, the court dismissed the action because a trial could expose intelligence-gathering methods and disrupt diplomatic relations with foreign governments. Edmonds v. Dept. of Justice, #02-1448, 2004 U.S. Dist. Lexis 12355 (D.D.C. 2004). {N/R}
     Federal court dismisses a whistleblower action brought by a terminated FBI contract translator for the FBI. Although the plaintiff alleged security lapses, the court dismissed the action because a trial could expose intelligence-gathering methods and disrupt diplomatic relations with foreign governments. Edmonds v. Dept. of Justice, #02-1448, 2004 U.S. Dist. Lexis 12355 (D.D.C. 2004). {N/R}
     The public policy protecting an employee from retaliation for filing a whistleblower lawsuit does not extend to job applicants. While the U.S. Supreme Court has recognized failure-to-hire claims based on retaliation for engaging in conduct protected by First Amendment free speech and associational rights, such reasoning does not apply to the right of free access to the judicial system, the court concluded. Toth v. Bd. of Parks Cmsnrs., #31340, 593 S.E.2d 576, 2003 W. Va. Lexis 170, 20 IER Cases (BNA) 1220(W.Va. 2003). {N/R}
     EEOC publishes rules to implement the posting requirements of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No Fear Act), which protects whistleblowers and other victims of federal discrimination. P.L. 107-174, 116 Stat. 556, 28 U.S. Code §2301. It requires federal agencies to maintain No Fear websites in specified formats. Under the act, agency budgets are assessed any damages imposed as a result of retaliatory and other unlawful treatment of their workers. Posting Requirements in Federal Sector, 69 (16) Fed. Reg. 3483-3492. {N/R}
     LAPD pays $6 million to settle nine federal lawsuits and two state claims brought by nine current and former officers, who alleged retaliation after they reported or testified about misconduct. Jones v. City of Los Angeles, #00-CV-11505 (C.D. Cal., filed 2000); removed from L.A. Co. Super. Ct., #BC 235705 (2000). Federal court litigation (C.D. Cal.): Warren Brooks v. L.A., #02-CV-7192; Barry Brooks v. L.A., #02-CV-7432; Craig Crosby v. L.A., #02-CV-6417; Chris Dunn v. L.A., #02-CV-6421; Nicole Garner v. L.A., #02-CV-6423; John Goines v. L.A., #02-CV-6419; Lillian Johnson v. L.A., #02-CV-6407; Johnneen Jones v. L.A., #02-CV-6417; Dana Walker v. L.A., #02-CV-7193.Workers' Compensation claims (WCAB): Warren Brooks v. L.A., #VEN 188194; John Goines v. L.A., #VNO 413379, 474672 & 0329072. [2003 FP Mar]
     Under the federal and Maryland Whistleblower Acts, an employee's complaint about the behavior of a supervisor is not a protected disclosure. Thus, a state corrections employee has no cause of action based on alleged retaliation for filing a grievance against the warden. The retaliation complaint lacked a "public interest" component. Montgomery v. Eastern Correctional Institution, #2003-13, 20 IER Cases (BNA) 1019, 835 A.2d 169, 2003 Md. Lexis 739 (2003). {N/R}
     A new whistleblower law in Illinois, which applies only to the private sector, prohibits retaliation against employees for making disclosures to governmental or law enforcement agencies, or retaliation for refusing to participate in an activity that would result in a violation of a state or federal law, rule or regulation. {N/R}
     Violation of the law is a Class A misdemeanor and the employee may sue for reinstatement, back pay, litigation costs and attorney fees. An "employee" can be full or part-time, and even a paid consultant of the entity that retaliates. Illinois Public Act 093-0579. {N/R}
     Texas appellate court holds that a jailer who was supposedly terminated for reporting staffing shortages and surveillance problems did not have to abandon his administrative remedy under the Texas Whistleblower Act before filing a lawsuit. Harris Co. v. Lawson, #01-02-00288-CV, 2003 Tex. App. Lexis 7368, 20 IER Cases (BNA) 592 (Tex. App. 2003). {N/R}
     Los Alamos Lab reinstates law enforcement whistleblower and offers $930,000 plus back pay. Walp v. Univ. of Calif., (prelitigation settlement). Also see, Hearing Testimony, "Procurement and Property Mismanagement and Theft at Los Alamos National Laboratory" (2003). [2003 FP Nov]
     University of California settles a second whistleblower lawsuit arising over financial irregularities revealed at its Lawrence Livermore facility near Berkeley. The plaintiff, a lab worker who turned informant, received $33,000 in lost wages, $264,000 for medical and sickness expenses, and $264,000 in general damages -- plus attorney's fees and costs of $428,000. Doggett v. Regents of the Univ. of Cal., #829369 (Super. Ct. Alameda Co. Cal.). {N/R}
     Federal appeals court holds that a police report, revealing misconduct of a fellow officer, is protected "speech" and addressed a matter of public concern. Their terminations violated the First Amendment. Taylor v. Chief of Police Keith, No. 01-6460, 338 F.3d 639, 20 IER Cases (BNA) 3532003 U.S. App. Lexis 15602, 2003 FED App. 0270P (6th Cir. 2003). [2003 FP Nov]
     Terminated Utah public employee was entitled to collect compensatory and punitive damages for whistleblowing. Youren v. Tintic Sch. Dist., #01-4131, 2003 U.S. App. Lexis 18768 (10th Cir. 2003). {N/R}
     Federal court upholds the right of management to fire a prison psychologist who released confidential records to public advocates and the news media. Whistleblower laws protect only those who report misconduct to the appropriate public officials. Dennison v. Penna. Dept. of Corrections, #3:01cv56, 2003 U.S. Dist. Lexis 9579 (M.D. Penna. 2003). [2003 FP Oct]
     City worker who was fired after he testified against his boss wins an $853,750 verdict. Ospalski v. City of Warren, #01-CV-71454, 46 (5) ATLA L. Rep. (E.D. Mich. 2003). [2003 FP Oct]
     Appeals court affirms comp. benefits for a police lieutenant who was fired and was later exonerated and reinstated. The chief caused him to be ostracized and stripped of his authority. The "environment was abnormal for any person, not just a police officer." Bor. of Beaver v. WCAB (Rose), #18 C.D. 2002, 810 A.2d 713 (Pa. Cmwth. 2002). {N/R}
     Federal appeals court rejects claims of a railroad watchman, who alleged that he was fired because of the criminal acts of his supervisor. There was testimony that the watchman had threatened violence and used drugs. More importantly he failed to report his superior's alleged criminal conduct to anyone in authority. Rivera v. Natl. R.R. Pass. Corp., #01-16232, 331 F.3d 1074, 20 IER Cases (BNA) 25, 2003 U.S. App. Lexis 11505 (9th Cir. 2003). {N/R}
     N.J. police officer, who claimed seven years of harassment from fellow officers, after he reported possible misconduct, wins over $3 million in damages, including $2 million for pain and suffering. Pisano v. Twp. of Parsippany, #MRS-L-002351-97 (Morris Co., N.J. Super. Ct. 2003). {N/R}
     Ninth Circuit affirms the criminal contempt conviction of a police practices researcher who violated a court protective order when he gave copies of 79 LAPD files to TV journalists, exposing efforts by officials to shield police officers from domestic violence prosecutions. The defendant's story also aired on the CBS news show, 60 Minutes. The Supreme Court has denied review. Mullally v. City of Los Angeles, #01-55620, 49 Fed. Appx. 190, 2002 U.S. App. Lexis 22535 (Unpub. 9th Cir. 2002); cert. denied, 2003 U.S. Lexis 3025 (2003). {N/R}
     Federal appeals court rejects a First Amendment and whistleblower suit by a police chief, alleging that he was fired for continuing an investigation of city council members, instead of referring it to an outside agency as requested by the mayor, and for referring to the mayor as Hitler. Tharling v. City of Port Lavaca, 02-20061, 2003 U.S. App. Lexis 9159 (5th Cir. 2003). {N/R}
     Arbitrator holds that management violated the Federal Whistleblowers Protection Act and a Michigan state law when it fired an employee who notified a corruption task force about alleged illegal activity in his department. Reinstatement and back pay ordered. City of Detroit and Individual Grievant, 118 LA (BNA) 135, City Grievance No. 97-025 (Hodgson, 2003). {N/R}
     Ninth Circuit sustains an award of $1,150,000 in compensatory damages and $1,150,000 in punitive damages against a private sector employer that wrongfully terminated a radiation safety officer that had reported nuclear safety violations. Freund v. Nycomed Amersam, 01-56491/4, 2003 U.S. App. Lexis 7537 (9th Cir. 2003). {N/R}
     Whistleblower Requirements and Protection State narcotics agents awarded $1.5 million for retaliatory action after they exposed a money laundering operation benefiting a CIA-favored Caribbean politician. McLaughlin v. Fisher, #00-CV-521 (M.D. Pa. 2003). [2003 FP Apr]
     First Circuit holds that a police officer that was transferred to a position he had previously requested after complaining about departmental corruption was unable to prove he was the victim of retaliation for whistleblowing. Dirrane v. Brookline Police Dept., #01-2523, 315 F.3d 65, 2002 U.S. App. Lexis 27197 (1st Cir. 2002). {N/R} Illinois Governor issues executive order strengthening whistleblower laws. E.O. No. 4-2003 (Jan. 23, 2003). [2003 FP Apr]
     Federal court overturns a $100,000 jury verdict for a NYPD officer who was unable to prove the Police Commissioner knew of the alleged retaliation or tolerated a custom of retaliation against officers who are critical of police brutality. Davis v. City of N.Y., #00 Civ. 4309, 228 F.Supp.2d 327, 2002 U.S. Dist. Lexis 17701 (S.D.N.Y. 2002). [2003 FP Mar]
     California appeals court rejects a mental disability retirement for a police officer who suffered allegedly retaliatory discipline and threats from fellow officers after he reported the use of excessive force by his coworkers. A rational fear for his own safety if he returns to work in the same agency is not enough; the claimant must show a likelihood of retaliation if he works in police agencies elsewhere in the state. City of Anaheim v. Nolan, #G028272, 104 Cal.App.4th 1170, 128 Cal.Rptr.2d 714, 2002 Cal. App. Lexis 5235 (4th Dist. Cal. App, 2002). [2003 FP Mar]
    Federal appeals court rejects the whistleblower claims of former employees who signed a release of claims "arising out of my employment at, or termination of employment." Thomas v. U.P.R.R., #01-2631, 308 F.3d 891, 2002 U.S. App. Lexis 21995 (8th Cir. 2002). {N/R}
     Federal appeals court allows a California corrections officer to bring a delayed whistleblower and retaliation suit against the state. The officer's filing of workers' compensation claim, based on stress injuries resulting from a punitive job reassignment, extended the filing time for his lawsuit. Rigg v. California, #00-17371, 32 Fed. Appx. 398, 2002 U.S. App. Lexis 4702 (Unpub. 9th Cir. 2002); cert. denied sub nom Smith v. Rigg, 2002 U.S. Lexis 6570. {N/R}
     A parole officer who wrote a memo to her supervisor complaining that her case load exceeded work limits set by a collective bargaining agreement was engaged in protected activity under the state's whistleblower law. Hutson v. Wisconsin Personnel Cmsn., #01-2959, 2002 Wisc. App. Lexis 1003 (2002). {N/R}
     Fifth Circuit holds that the adoption of a Whistleblower law which allows damages against a state employer does not waive Eleventh Amendment immunity in federal court for other claims. Martinez v. Texas Dept. of Criminal Justice, #00-51135, 300 F.3d 56, 2002 U.S. App. Lexis 14915 (5th Cir. 2002). {N/R}
     A California public defender who alleged constructive termination, after disclosing illegal and unethical practices in the public defender's office, was awarded $231,850 by a Nevada County Superior Court. Moore v. County of Nevada, reported in the Calif. Bar Journal Trial Digest, June 2002. {N/R}
     Assistant U.S. Attorney wins $200,000 in punitive damages against the Justice Dept. for imposing a pretextual five-day suspension after he contacted a member of Congress about hazardous waste contamination at an airport. Environmental whistleblowers are protected under 33 U.S. Code §1367, 42 U.S. Code §6971 and §7622. Sasse v. Dept. of Justice, #1998-CAA-7, 40 (1962) G.E.R.R. (BNA) 557 (ALJ decis. 2002); facts and jurisdiction at ARB #99-053, 2000 DOL Ad. Rev. Bd. Lexis 94 (DoL-Adm.Rev.Bd. 2000). {N/R}
     FAA settles whistleblower claim. Aviation specialist was fired for going outside the chain of command to report to the FBI that a Saudi national, with a name similar to a 9-11 hijacker, had attended a FAA flight school. Office of Special Counsel ex rel. Hopkins v. DoT, #CB-1208-02-0004-U-1, 40 (1963) G.E.R.R. (BNA) 568 (Settlement, 2002). [2002 FP Aug]
     First Circuit holds that states have sovereign immunity from federal administrative proceedings that are initiated by state employees to invoke federal whistleblower protections. Rhode Island Dept. of Environ. Mgmt. v. United States, #00-2326, 286 F.3d 27, 2002 U.S. App. Lexis 6423(1st Cir. 2002). [N/R]
     Federal court in Connecticut dismisses some, and upholds some of the pleadings in a suit by a suspended detective, who alleges retaliation for investigating other officers for drug-related corruption. Russo v. City of Hartford, #3-97-CV-2380, 184 F.Supp.2d 169, 2002 U.S. Dist. Lexis 2555 (D.Conn. 2002). [2002 FP Jul]
    Jury awards a police officer more than $3 million in compensatory and punitive damages in a suit against his town and named officers. He endured 7 years of threats and harassment, after reporting fellow officers for misconduct. Pisano v. Twp. of Parsippany, #MRS-L-002351-97 (Morris Co., N.J. Super. Ct.), 2/18/2002 Natl. Law Journal, p. B5). [N/R]
     NYPD pays $1.5 million to settle lawsuits brought by two high ranking officers who allegedly were sanctioned for refusing to change the findings in a sexual harassment investigation in the Staten Island command. Donovan v. Safir (S.D.N.Y.); Marsh v. Safer 99 Civ. 8605 (S.D.N.Y.). [2002 FP May]
     New Jersey jury awards a police officer over $3 million for harassment, after he reported that fellow officers were involved in selling blue jeans overseas. Award included $2 million for past pain and suffering, $545,000 for future lost wages and punitive damages. Pisano v. Township of Parsippany, No. MRS-L-002351-97 (Morris Co., N.J. Super. Ct.). [N/R]
      The Seventh Circuit has held that county or municipality may be sued as a "person" under the False Claims Act, 31 U.S. Code 3729 et seq. U.S. ex rel. Chandler v. Cook County, #00-4110, 277 F.3d 969, 2002 U.S. App. Lexis 847 (7th Cir. 2002).  The Third Circuit disagrees, and has ruled that county and city governments cannot be sued under the False Claims Act because the mandatory treble damages provision is "punitive" in nature and public entities are immune from punitive damages. The U.S. Dept. of Justice, in an amicus brief, supported the claim of the whistleblower-plaintiff in this case. U.S. ex rel. Dunleavy v. Co. of Delaware, #00-3691, 297 F.3d 219, 2002 U.S. App. Lexis 1214 (3rd Cir. 2002). [N/R]
    Federal Merit Board orders the temporary restoration, to full regular duties, of an FAA specialist who was disciplined after he called the FBI to report that the FAA had trained a Saudi with a name similar to a Sept. 11th hijacker. Office of Special Counsel ex rel. Hopkins v. DoT, #CB-1208-02-0004-U-1, 39 (1933) G.E.R.R. (BNA) 1150, – M.S.P.R. – (MSPB, 10/17/01). [2002 FP Jan]
     New Jersey appeals court reverses a large verdict won by a police officer. An allegation that superiors should not have issued two gun permits is not the kind of employee complaint the law was designed to protect, and does not shield an employee from disciplinary action. McLelland v. Moore, #A-4534-98T5, 343 N.J. Super. 589, 779 A.2d 463, 2001 N.J. Super. Lexis 353 (N.J. App. 2001). [2002 FP Jan]
     Federal jury awards former police chief and deputy chief $1.7 million in damages. They had sued for wrongful termination and malicious prosecution after they refused to reveal to the mayor's lawyer the content of their corruption disclosures to the FBI. Niebur v. Town of Cicero, #98-C-4157 (N.D. Ill., verdict May 21, 2001). Interim rulings at 90 F.Supp.2d 930, 2000 U.S. Dist. Lexis 3969 and at 1998 U.S. Dist. Lexis 15425. [2001 FP 93-4]
     Texas traffic officer who was transferred for low ticket-writing could file a state whistleblower lawsuit complaining of an illegal quota system. Austin (City of) v. Ender, #03-00-00286-CV, 30 S.W.3d 590, 2000 Tex. App. Lexis 6644, 16 IER Cases (BNA) 1432. [2001 FP 14-5]
     Police officer who claimed that he was fired for issuing a traffic citation to a politician's son could pursue a retaliatory discharge action under the state whistleblower law. Puig v. Gr. New Orleans Expr. Cmsn., #00-924, 772 So.2d 842, 2000 La. App. Lexis 2686, 16 IER Cases (BNA) 1595. {N/R}
     Under the federal civil rights act, a jury finding that a public employee would have been fired, even if she did not engage in whistleblower protected speech, precludes any recovery by the plaintiff and does not merely offset damages. Ballard v. Muskogee, #99-7132, 238 F.3d 1250, 2001 U.S. App. Lexis 1175, 17 IER Cases (BNA) 257 (10th Cir.). {N/R}
     Federal appeals court rejects the termination lawsuit of a payroll clerk who allegedly ignored a county commissioner's instruction not to pay overtime because of her FLSA concerns. Even if her interpretation of the FLSA was correct, her superior believed she was insubordinate and disruptive and was justified in discharging her. Chesser v. Sparks, #99-14594, 248 F.3d 1117, 17 IER Cases (BNA) 883, 6 WH Cases 2d (BNA) 1736 2001 U.S. App. Lexis 6772 (11th Cir.). {N/R}
     Justice Dept. pays legal costs of a FOIA suit brought by FBI crime law whistleblower and others. 53,000 documents will be available on the plaintiffs' website. Whitehurst v. Fed. Bur. of Inves., #96-CV-00572, (D.D.C. 1998). [2000 FP 142-3]
     Jury awards union organizer $1.62 million after he was fired by the union for informing police and the FBI about illegal activity. Silva v. AFSCME, #Civ 98-0579 JC/KBM, 43 (3) ATLA L. Rptr. 96 (D.N.M. 1999); 1999 (6-18) Albq. Journal p. C1. [2000 FP 94]
     State upholds award of $503,952 plus attorney's fees of $514,853 for two firefighters who reported misconduct of the city's Safety Director. Fairbanks (City of) v. Rice, #S-8469, 998 P.2d 419, 2000 Alas. Lexis 23, 16 IER Cases (BNA) 142. [2000 FP 94]
     Ninth Circuit reverses a trial judge that dismissed a suit by an officer who suffered anonymous retaliation and minor harassment after he reported misconduct by his coworkers. Blair v. City of Pomona, #98-55548, 223 F.3d 1074, 2000 U.S. App. Lexis 18349 (9th Cir.). [2000 FP 77-8]
     Federal appeals court in New York upholds a retaliatory harassment and constructive discharge lawsuit filed by three officers against the sheriff and undersheriff, after they reported to the FBI the physical abuse of jail inmates. Jeffes v. Barnes, #98-9369, 208 F.3d 49, 2000 U.S. App. Lexis 5150, 16 IER Cases (BNA) 333 (2nd Cir.). [2000 FP 109-10]
     Although a deputy sheriff reported misconduct to his superiors, he was not a protected whistleblower because the decision to terminate him was made by senior officers who were unaware of his complaints about coworkers. Phelps v. Cortland Co., #86000, 706 N.Y.S.2d 522, 2000 N.Y. App. Div. Lexis 4649. [2000 FP 110-11]
     Texas pays $235,000 to three former criminal justice employees who filed a whistleblower lawsuit. Failure to follow grievance procedures did not defeat their claims. Curbo v. State of Texas, 998 S.W.2d 337, 1999 Tex. App. Lexis 5546. [2000 FP 14-15]
     FBI whistleblower final regulation adopted: whistleblowers are not protected if they report misconduct or errors to the Congress or in open court. They do not have a legally- enforceable right to an administrative hearing for retaliation or to judicial review. A.G. Order No. 2264-99, 28 C.F.R. 27.1-6, 64 (210) Fed. Reg. 58782-88 (Nov. 1, 1999). [2000 FP 14-15]
     Memorandum from psychologist at federal a prison, urging the warden to create a suicide watch room was not a protected disclosure under the federal whistleblower statute. Herman v. Dept. of Justice, 193 F.3d 1375, 1999 U.S. App. Lexis 26826, 15 IER Cases (BNA) 1162 (Fed. Cir. 1999). {N/R}
     Supreme Court, in a 7-2 ruling, limited the use of RICO in whistleblower cases. The "overt act" must be a racketeering type action; the act of termination itself is not enough. Beck v. Prupis, #98-1480 (2000). {N/R}
     Federal appeals court rule that to be a protected disclosure, a complaint cannot be made to the wrongdoer, but must be expressed to a higher authority or to an outside audience. Randles v. Dept. Veterans Affairs, #99-3069, 1999 U.S. App. Lexis 18696 (Fed. Cir. 8/11/99). [1999 FP 158-9]
     FBI issues regulation creating whistleblower rights; 1989 federal law had exempted the Bureau. Whistleblower Protection for FBI Employees, A.G. Order #2190-98, FR Doc. 98-29700, 63 Fed.Reg. 62937 (Nov. 10, 1998). [1999 FP 45]
     Federal court refuses to dismiss a damage suit, brought by three officers against the sheriff and others, claiming that the officials had acquiesced in allowing other officers to harass and intimidate the plaintiffs for exposing the beatings of jail inmates by various correctional officers. Jeffes v. Barnes, 20 F.Supp.2d 404, 1998 U.S. Dist. Lexis 14654 (N.D.N.Y.). [1999 FP 45-6]
     Seventh Circuit upholds the right of a law enforcement officer to report misconduct to the prosecutor, and to sue his superiors for imposing discipline for continuing an investigation of a fellow officer. Lickiss v. Drexler, 141 F.3d 1220 (7th Cir. 1998). [1999 FP 30]
     Law enforcement officer wins $600,200 in compensatory and $1.5 million in punitive damages for a retaliatory transfer when he reported environmental misconduct by a former councilman. Fort Worth v. Zimlich, #03-97-00475-CV, 975 S.W.2d 399, 1998 Tex.App. Lexis 5489. [1999 FP 13-14]
     An ex-employee's frequent complaints, antagonistic behavior to a supervisor, accusations of a coverup, was unreasonable behavior. Robbins v. Jefferson Co., 186 F.3d 1253, 1999 U.S. App. Lexis 18284, 80 FEP Cases (BNA) 795 (10th Cir.). {N/R}
     Federal Court awards a NYPD officer $90,000 against her dept. and superiors, for failing to prevent retaliation after she reported a theft by her partner. White-Ruiz v. City of N.Y., 983 F.Supp. 365, 1997 U.S. Dist. Lexis 11390 and 1996 U.S. Dist. Lexis 15571 (S.D.N.Y); prior rulings at 1996 U.S. Dist. Lexis 15571; 1996 U.S. Dist. Lexis 18890; and 1996 U.S. Dist. Lexis 19346. [1998 FP 119-20]
     A Superior Court jury in Los Angeles has awarded a private sector manager $21,900,000 for wrongful termination after he reported potentially illegal conduct. Darghous v. Johnson Controls Inc., 98-12 Cal.Bar.J. Trials Digest (Cal. Super.Ct. 1998). {N/R}
     Supreme Court allows an untenured employee to sue his superiors, claiming that he was fired for testifying before a grand jury. Haddle v. Garrison, 1998 U.S. Lexis 8081, 525 U.S. 121, 119 S.Ct. 489. [1999 FP 14]
     Federal appeals court rejects the suit of an officer who had been fired for disobeying an order to strip search three prisoners and then lying about her insubordinate behavior. The fact she had sent two memos complaining about the minor deportment of other officers did not prove she was fired in retaliation for whistleblowing. Gubitosi v. Kapica, #97-2575, 1998 U.S. App. Lexis 20223, 14 IER Cases (BNA) 437, 1998 WL 500141 (2nd Cir.). [1998 FP 174-5]
     Federal appeals court affirms termination of police officer who accused coworkers of second-degree murder because they failed to administer CPR to a man they had shot. His remarks undermined morale, and no reasonable person could believe his accusations were justified. Lytle v. City of Haysville, 138 F.3d 857, 13 IER Cases (BNA) 1355 (10th Cir.). [1998 FP 110-11]
     FBI to pay $1,466,000 to an agent who reported problems in its crime lab. $300,000 of the total is to settle his privacy claims. Attorney fees also to be paid. Whitehurst v. Fed. Bur. of Inves., #96-CV-00572, (D.D.C. 1998). [1998 FP 61-2]
     Federal appeals court overturns a suspension of a supervisor who gave a trainee officer a poor evaluation. INS management claimed the negative rating was in retaliation for being reported by the trainee for a minor transgression. Frederick v. Dept. of Justice, 1996 U.S. App. Lexis 81, 73 F.3d 349 (Fed. Cir.). [1997 FP 141-2]
     Misconduct, not whistleblowing, was the reason for the discharge of an INS inspector. The decision to investigate the officer was not a pretext for retaliation. Geyer v. D.O.J., 1997 WL 163507 and 334944 (Fed.Cir.); 1996 WL 543268 (Fed.Cir.). {N/R}
     Former federal correctional officer awarded $500,000 in whistleblower suit. Asberry v. United States (C.D. Cal. 5/30/97). L.A. Times May 30. 1997 p. B-3 (Online archives). [1997 FP 109]
     Officer receives $175,000 to settle whistleblower suit. He claimed he was demoted after accusing a superior for environmental crimes. Mensch v. Cal. Dept. Fish & Game (E.D.Cal. 1997). S.F. Recorder (6/4/97 Online edit). {N/R}
     City of Los Angeles agrees to pay $430,000 to a police officer who claimed retaliation and harassment, following her public criticism of fellow officers for their racial attitudes and discrimination. Bouey v. City of Los Angeles, L.A. Co. Super.Ct. BC110011; 109 (241) L.A.D.J. 3 (stlmt. summ.); Mar. 13, 1996 L.A. Times p. B-1. [1997 FP 29-30]
     Texas Supreme Court adopts an objective test on whistleblower protection; the motives of the employee are irrelevant. Wichita Co. v. Hart, 917 S.W.2d 779, 11 IER Cases (BNA) 641 (Tex. 1996. [1997 FP 30]
     Sweeping New York State Executive Order requires all state officers and employees to become whistleblowers; new IG Office given subpoena powers. N.Y. Executive Order #39 (June 17, 1996). [1996 FP 141-2]
     Appellate court disallows expert witness testimony concerning a "whistle-blower profile." $250,000 verdict set aside. Adams v. Amore, 895 P.2d 1016 (Ariz.App. 1994; Rev. den. 1995). [1996 FP 29-30]
     Supreme Court declines review; trial and appellate courts held that Texas corrections officials did not impose retaliatory discipline because of an officer's whistleblowing activities, even though a jury ruled in her favor. Pierce v. Tex. Dept. Crim. Justice, 37 F.3d 1146 (5th Cir. 1994); cert. den., 63 LW 3817 (1995). [1995 FP 125-6]
     Appellate court affirms damage awards and attorneys fees given five high ranking police officers, who were demoted after they publicly complained the city manager violated a charter provision when he named a new police chief. Beaumont (City of) v. Bouillion, 873 S.W.2d 425 (1993). {N/R}
     Probationary police officer, who claimed his discharge was in retaliation for complaining about falsified reports, recovers $325,000. Nabulsi v. City of Long Beach, #BC092357, 107 (208) L.A.D.J. V&S 5 (L.A. Co. Super. 1994). [1995 FP 30]
     Ex L.A. County employee wins $1.5 million for wrongful termination after he reported his superiors for purchasing an unnecessary computer. Hall v. Weil, L.A. Co. Super.Ct. #VC009721, 107 (150) L.A.D.J. V&S 9 (8/5/94). [1995 FP 14]
     Three sheriff's deputies, who suffered retaliation after reporting suspected misconduct to an outside agency, recover $396,350. Wanish v. Dachel, (W.D. Wis. 1994). Ref: 124 (63,64) Chippewa Herald Telegram 1. [1994 FP 158]
     Mississippi supreme court modifies at-will employment doctrine and imposes an exception where an employee is terminated for refusing to engage in illegal conduct or for reporting it. McArn v. Allied B.T. Co., 626 S.E.2d 603, 8 IER Cases (BNA) 1317 (Miss. 1993). [1994 FP 14]
     Discharged police officer could sue under the "whistleblower" protection act, without exhausting civil service appeals. Hatton-Ward v. Salt Lake City, 828 P.2d 1071 (Utah App. 1992). [1993 FP 30]
     Federal court upholds claim of terminated inspector who refused to grant a permit for deficient work, and reporting his superior to police for improperly accepting gifts from contractors. Roper v. County of Chesterfield, 807 F.Supp. 1221 (E.D.Va. 1983). [1993 FP 94]
     Nevada statutes allow limited "whistleblower" protections; retaliation broadly defined. Nev. Laws 1991, Ch. 607, 672 (Eff. 10/1/91). [1992 FP 14]
     A municipal employee who blows the whistle on corruption is deprived of his federally protected civil rights if promotions are denied him in retaliation. Wetzel v. Hoffman, 928 F.2d 376 (11th Cir. 1991). [1992 FP 57].
     Florida sergeant who claims he was demoted for reporting misconduct could file suit under Whistleblowers Act without exhausting administrative remedies. Ujcic v. City of Apopka, 581 So.2d 218 (Fla.App. 1991). [1992 FP 110] Ex police chief and sergeant recover $264,464 for wrongful termination, following their disclosure of misconduct of two city council members. Case modified on appeal and remanded for reassessment of damages. Roberts v. Joiner, 590 So.2d 195 (Ala. 1991). [1992 FP 174]
     Nevada statutes allow limited "whistleblower" protections; retaliation broadly defined. Nev. Laws 1991, Ch. 607, 672 (Eff. 10/1/91). [1992 FP 14]
     Whistle-blowing action by police officers disrupted dept. efficiency; officers motivation was also a personal grudge. Suit against city and officials dismissed. Perry v. City of Kinloch, 680 F. Supp. 1339 (E.D. Mo. 1988).
     Officer, denied promotion and transferred for exposing cover-up, awarded $50,000 compensatory and $250,000 punitive damages against chief. Martinez v. Vigil, (unreported) U.S. Dist. Ct., Albuquerque, NM (11/4/86).
     Whistle-blowing lieutenant entitled to $20,750 in compensatory and $28,000 in punitive damages against superiors who terminated him. Williams v. Board of Regents of Univ. of Georgia, 629 F.2d 3740 (5th Cir. 1980).

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