Bernabei & Wachtel Blog

Bush Administration Takes Whistleblower Protection From EPA Employees

Public Employees for Enivronmental Responsibility (PEER) recently reported that the Bush Administration has declared itself immune from whistleblower protections for federal workers under the Clean Water Act, according to legal documents obtained by PEER. As a result of an unpublished legal opinion issued on September 23, 2005 by a unit within the Office of the Attorney General, federal workers will have little protection from official retaliation for reporting water pollution enforcement breakdowns, manipulations of science or cleanup failures. Citing an unpublished opinion of the Attorney General’s Office of Legal Counsel, the Secretary of Labor’s Administrative Review Board ruled, on May 31, 2006, that federal employees may no longer pursue whistleblower claims under the Clean Water Act.  As a result, employees of EPA and other federal agencies who are retaliated against for uncovering these violations cannot seek protection under the Clean Water Act.

For more information on the stealth repeal of Clean Water Act whistleblower protection see http://www.peer.org/news/news_id.php?row_id=743

EEOC Rules That Navy Discriminated Against Bernabei Client Based on Record of Illness

The Equal Employment Opportunity Commission issued a significant ruling in favor of a federal job applicant represented by David Wachtel of the Bernabei Law Firm.  The EEOC ruled that the Navy violated the Rehabilitation Act by failing to individually assess the applicant's ability to work safely and that the Navy had no evidence to support its conclusions that hiring the applicant would create a likely and imminent risk of harm.  EEOC ordered the Navy to give the applicant the job he applied for, pay him back pay for nearly six years that the case was pending, pay him compensatory damages in an amount to be determined, and pay his attorney's fees. The EEOC also ordered the Navy to train the supervisors responsible and to consider disciplining both of them. The case began with the support of the law firm of Rose & Rose, where Mr. Wachtel was affiliated between 1993 and 2005.

Federal Circuit Rules for Whistleblower

The Federal Circuit, on July 11, 2006, reversed a MSPB decision, and ruled in favor of the whistleblower, under the Whistleblower Protection Act, a somewhat unusual occurrence.  The decision has some good language about how an agency cannot subvert the hiring process in order to avoid hiring (or promoting) known whistleblowers.

Ruggieri v. MSPB, No. 05-3311, (Fed. Cir. 2006), online at:

http://www.fedcir.gov/opinions/05-3311.pdf

The employee claimed that he was not selected for a position with the Mineral Management Services (Dept. of Interior), because he had been a whistleblower during a previous position with the Coast Guard.  Instead, the MMS simply canceled the position vacancy without hiring anyone, and then reopened it several months later, and once it became clear that the plaintiff did not apply this time around, the MMS filled the position with another applicant.  The government argued, and the MSPB agreed, that a WPA claim could not be stated unless the agency filled the position with someone else at the time the whistleblower applied.  The Federal Circuit rejected that as too narrow a reading of the WPA, and one that would circumvent the WPA, as the following excerpts make clear:


The Board's position on this issue reflects an unduly narrow construction of the statutory language "fail to take ... a personnel action." The Whistleblower Protection Act does not state that the failure to select an applicant for employment cannot be actionable unless someone else is selected for the position in the applicant's place. If the statute defined a failure to make an appointment as the act of hiring another applicant in place of the complainant, the Board's construction would have force. But it does not. It provides that an appointment is a personnel action and that a failure to make an appointment is a trigger for an Individual Right of Action appeal.

To endorse the Board's interpretation of the statute would immunize an agency's decision not to hire a whistleblower, so long as the agency was willing simply not to fill the position for which the whistleblower had applied, even if the agency's conduct was plainly motivated by whistleblowing activity. This case illustrates the potential mischief that could be caused by the Board's interpretation. . . .

. . . Including such conduct within the reach of the Whistleblower Protection Act is consistent with Congress's purpose to protect whistleblowers from a wide variety of actions taken against them in retaliation for protected disclosures. See Caddell v. Dep't of Justice, 96 F.3d 1367, 1372 (Fed. Cir. 1996); Marano v. Dep't of Justice, 2 F.3d 1137, 1139-41 (Fed. Cir. 1993). In light of that congressional purpose, as reflected in the broad statutory language, we hold that Mr. Ruggieri's evidence regarding his nonselection for the position of electrical engineer was sufficient to satisfy the requirement that an appellant in an Individual Right of Action appeal make a nonfrivolous allegation that the agency has failed to take a personnel action. We therefore reverse the decision on appeal and remand this case to the Board for further proceedings.

Alan R. Kabat
The Bernabei Law Firm, PLLC

Litigation Update: Bernabei Law Firm Brings Suit for Woman Mistreated as Military "Role Player"

On August 8, 2006, the Bernabei Law Firm, along with the Lawyers’ Committee for Civil Rights Under Law, the law firm of Kirkland & Ellis, and local counsel Dale E. Williams filed a civil action in the U.S. District Court for the Western District of Louisiana, Lake Charles Division, against a Department of Defense contractor and its subcontractor, for intentional discrimination and retaliation in violation of Section 1981 of the Civil Rights Act of 1866 and Title VII of the Civil Rights Act of 1964.

The complaint alleges that the Defendants subjected Ms. Susan Safi-Rafiq, and other women similarly situated to a dangerous, humiliating and hostile work environment because of their race, sex and national origin. In July 2004, Ms. Safi-Rafiq, who fled her native country of Afghanistan in 1980, was hired to serve as a role-player in simulations designed to replicate life in her native country for U.S. soldiers training for their mission in Afghanistan.  She and a dozen other women, many of whom had limited English proficiency, were bused to Ft. Polk, Louisiana, the site of the simulations.  Upon arriving at Ft. Polk, the women were escorted to the barracks where they had to sleep, but which were not suitable for human habitation.  According to the complaint, the floors, walls and bathroom were filthy, the room was infested with vermin, and there was almost no ventilation in the single room where all of the women were forced to sleep.  The women were also subjected to taunts, insults and harassment specifically directed at their race and sex.  For example, when Ms. Safi-Rafiq requested a fan from one of her managers he told her that she should keep her mouth shut and that if the women did not speak English they did not deserve better.  He then grabbed her by the arm, pushed her and threatened, “You know what we did to women like you in Bosnia.”  Ms. Safi-Rafiq reported the assault and verbal threat as well as the dangerous conditions within the barracks, however, no action was taken by the contractors and she was retaliated against because of her complaints.

Ossai Miazad*

The Bernabei Law Firm, PLLC

*Licensed to Practice Law in the State of New York

Mbulu v. Bureau of National Affairs

On August 31, 2006, U.S. District Judge Bates of the District of Columbia issued a decision denying defendant BNA's motion for $167,000 in attorneys' fees after it prevailed in a Title VII/DCHRA case brought by a pro se plaintiff (admittedly, the plaintiff was an attorney but not knowledgeable about employment litigation). After summary judgment was granted, and the plaintiff did not pursue any further appeals, BNA filed its motion for attorneys' fees and costs. There's a good discussion in the first half of the opinion about why fees should be given to prevailing plaintiffs, but only given to prevailing defendants if the suit was brought in bad faith. The decision is online at:

http://www.dcd.uscourts.gov/opinions/district-court-2006.html

http://www.dcd.uscourts.gov/opinions/2006/Bates/2004-CV-1540~8:57:40~8-31-2006-a.pdf

Alan R. Kabat
The Bernabei Law Firm, PLLC
1775 T Street, N.W.
Washington, D.C.  20009-7124
tel. (202) 745-1942 (ext. 242)
fax (202) 745-2627
email:  Kabat@BernabeiPLLC.com