Whitmore v. Department of Labor
680 F.3d 1353
| Fed. Cir. | 2012Background
- Whitmore, a long-tenured DOL employee, engaged in whistleblowing disclosures starting in 2005 about OSHA recordkeeping and underreporting injuries.
- Tensions with supervisors escalated after 2005, including altered leave accounting, hostile emails, and a 2007 incident involving a confrontation with a supervisor and alleged spitting.
- A Morgan investigation (2007) questioned Whitmore’s conduct; OSHA proposed removal in 2007, but Whitmore remained on leave pending outcomes.
- Whitmore made additional whistleblowing disclosures (Congress testimony, media appearances) while on paid leave, prompting a 2009 proposed removal action finalized by outside officials Witt and Shalhoub.
- The AJ’s hearing limited witnesses, excluded key Morgan witnesses and other evidence, and bifurcated issues, focusing on the charges rather than Whitmore’s whistleblower defense.
- MSPB denied Whitmore relief; Whitmore appealed to the Federal Circuit arguing improper evidentiary handling and failure to apply the clear-and-convincing standard for the Carr framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the agency able to prove, by clear and convincing evidence, that Whitmore would have been removed absent whistleblowing? | Whitmore | Whitmore | Remand required; court vacates MSPB decision for full Carr-based weighing. |
| Did the AJ abuse discretion by excluding Morgan witnesses and other evidence relevant to Carr factors? | Whitmore | DOL | Abuse of discretion; removal vacated and remanded to consider all evidence. |
| Did the AJ err in excluding Whitmore's EEO defense evidence and arguments from the hearing? | Whitmore | DOL | On remand, consider EEO evidence; initial exclusion found reversible error but record allows reconsideration. |
| Was there a retaliatory motive evidence under Carr factor two warranting reversal? | Whitmore | DOL | The record supports potential motive; remand to reweight Carr factor two with broader evidence. |
| Was Carr factor three (similarly situated non-whistleblowers) properly applied and did the AJ adequately compare Dubois’s conduct? | Whitmore | DOL | AJ misapplied; remand to reassess similarity and evidence under Carr factor three. |
Key Cases Cited
- Carr v. Soc. Sec. Admin., 185 F.3d 1318 (Fed.Cir.1999) (Carr factors, clear and convincing burden for agency must show same action would occur absent disclosure)
- California ex rel. Cooper v. Mitchell Bros. Santa Ana Theater, 454 U.S. 90 (Supreme Court 1981) (standard of proof and evidentiary considerations for certain civil burdens)
- Li Second Family L.P. v. Toshiba Corp., 231 F.3d 1373 (Fed.Cir.2000) (weigh all evidence collectively; aggregate analysis required for clear and convincing)
- Price v. Symsek, 988 F.2d 1196 (Fed.Cir.1993) (aggregate consideration of evidence in clear and convincing standard)
- Chambers v. Dep't of the Interior, 116 MSPR 17 (MSPB 2011) (motive to retaliate may be inferred from broader agency conduct and disclosures)
- Miller v. Dep't of Veterans Affairs, 92 M.S.P.R. 610 (MSPB 2002) (assessment of Carr factors and retaliation evidence)
- McCarthy v. Int'l Boundary and Water Comm., 116 M.S.P.R. 594 (MSPB 2011) (motive and similarly situated analyses in Carr framework)
- Russell v. Dep't of Justice, 76 M.S.P.R. 317 (MSPB 1997) (example of balancing Carr factors in whistleblower cases)