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Whistleblower Law Blog

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Federal Investigation Reveals that Air Force Unlawfully Punished Air Force Mortuary Whistleblowers

On January 31, 2012, investigators from the Office of Special Counsel reported that Air Force officials at the Dover military mortuary unlawfully punished four civilian workers who reported numerous incidents in which the mortuary mishandled deceased soldiers’ remains. The whistleblowers, who included mortuary inspectors and embalming and autopsy technicians, alleged that their supervisors retaliated against them for disclosing to the U.S. Office of Special Counsel (OSC) that mortuary workers mishandled soldiers’ body parts. Employees who reported these matters to the OSC were issued five day suspensions, placed on indefinite administrative leave, or terminated.

Based on the employees’ reports, the Office of Special Counsel conducted an initial investigation in November and found that the mortuary had engaged in “gross mismanagement”, where it misplaced body parts of troops killed in Afghanistan. The Air Force acknowledged that it punished the three supervisors who were responsible for the facility’s mishandling remains, but it did not discipline the supervisors who retaliated against those who had reported their wrongdoing. The Office of Special Counsel then began a separate investigation under the Whistleblower Protection Act to look into the whistleblowers’ retaliation claims.

Secretary of the Air Force Michael Donley has taken action based on the results of the latest investigation.  Donley reported on that he had appointed a two-star general to review the specific findings and take “appropriate action.”

“There is no place for reprisal in the Air Force. Reprisals against employees are unethical and illegal and counter to Air Force core values,” stated Donley.

The Employment Law Group® law firm has an extensive nationwide whistleblower practice representing employees who have been victims of retaliation.

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Former BP Employee is Terminated After Refusing to Alter Data About the Progress of Clean-up of the Deepwater Horizon Oil Spill

Former BP employee August Walter filed suit  in the U.S. District Court for the Eastern District of Louisiana last week, alleging that the oil company violated the Louisiana Environmental Whistleblower Statute when it terminated Walter after he refused to alter data related to the progress of clean-up for the Deepwater Horizon oil spill.

Walter, a “state planning lead” on BP’s cleanup efforts in the Mississippi gulf coast, raised concerns in May and June 2011 that BP was removing only large tar balls, intentionally leaving smaller oil debris on the beaches.  According to Walter, BP failed to follow the Shoreline Treatment Recommendations, a plan delineated by federal agencies, including the Coast Guard and the Department of Interior.  BP’s reason for its inadequate cleanup efforts, said Walter, was to report to the Coast Guard that it was ready to begin its next phase of cleanup, which in turn would help boost the prices of BP shares.  Walter reports that at one point he was called into a meeting with BP’s VP of Operations, Carla Fontenot, and was asked to falsify data because his reports were inconsistent with BP’s planned progress reports.  When Walter refused to comply with BP’s demands, the company placed him on administrative leave and later terminated his employment.

Walter is seeking back pay, reinstatement to his former position, and compensatory damages.

The Employment Law Group® law firm has an extensive nationwide whistleblower practice  representing employees who have been victims of retaliation.

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Jury Orders TD Bank to Pay $67 Million to Victims of Ponzi Scheme

On January 18, 2012, a jury for the U.S. District Court for the Southern District of Florida found TD Bank liable for engaging in fraudulent activity and ordered the company to pay $67 million in damages to the victims of the Ponzi scheme. Texas firm Coquina Investments filed a lawsuit against TD Bank in May 2010, accusing the bank of aiding Scott Rothstein in his $1.2 billion Ponzi scheme.

The suit alleges that TD Bank was aware of Rothstein’s illegal business transactions but still allowed him to conduct his affairs with the bank.  Questionable activity, such as sizable funds passing through Rothstein’s account, occurred without any objections from the bank. In a deposition, Rothstein testified that he wouldn’t have been able to conduct his scheme without the help of TD bank management, such as former bank vice president Frank Spinosa, who Rothstein claims to have paid $50,000 to falsify account balances.

TD Bank denies any wrongdoing and maintains, that it was Scott Rothstein “who defrauded investors.”

The Employment Law Group® law firm has an extensive nationwide whistleblower practice  representing employees who have been victims of retaliation.

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Feature Article Interviewing The Employment Law Group® Principal Attorney Dave Scher Receives Wide Coverage in Military Publications

On January 11, 2011 the Air Forces Times featured The Employment Law Group® law firm principal attorney Dave Scher in a story regarding recent whistle-blowing by U.S. Department of Veterans Affairs (VA) physicians.

The story has since been featured in other Gannet Government Media publications including the Army Times, Navy Times, Marine Corps Times, and Military Times.  In addition, the article was mentioned on the Government Accountability Project’s (GAP) Daily Whistleblower News blog.

The Air Force Times and the other Gannet publications are weekly newspapers that serve active, reserve, and retired members of the U.S. military and their families by providing news and analysis that is relevant to members of the military community.  The newspapers are among the most widely purchased publications on U.S. military bases and other military installations and, together, have an average weekly circulation of over 240,000.

The article highlighted a current case that arose following allegations that a whistleblower was fired from a VA facility in Northport, New York after complaining about unsafe patient practices and hazardous working conditions. The Employment Law Group® law firm attorney Dave Scher noted that the U.S. Office of Special Counsel substantiated the allegations and that “the special counsel herself went out of her way to praise [the whistleblower’s] courage in a press release.”

The article also profiled other cases in which The Employment Law Group® law firm has advocated for whistleblowers’ rights by assisting VA doctors who claim that “they were fired or harassed for speaking out about problems affecting patient care”.  In these cases, said Scher, the “former healthcare professionals attempted to point out the dangers patients were facing at VA medical facilities.”

“How such rampant disregard for regulations and respect for patients took place is a travesty.  The whistleblowers are stepping forward to protect these patients’ rights as well as their own.”

The original article, entitled “Whistle-blowers Sue VA, Claim Reprisal”, appeared in the January 16, 2012 print edition of the Air Force Times.

The Employment Law Group® law firm has an extensive nationwide whistleblower practice  representing employees who have been victims of retaliation.

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Ohio Police Sergeant Files Whistleblower Suit Claiming Retaliation after He Disclosed Police Chief’s Misconduct

Elmwood Place, Ohio Police Sergeant Gary Darty filed a lawsuit two weeks ago in the U.S. District Court for the Southern District of Ohio against Chief William Peskin, who Darty claims retaliated against him after he disclosed to local officials that Peskin had engaged in police misconduct.

Darty wrote a letter to the Elmwood Place Village Council and mayor in July 2011 citing instances in which the Chief of Police committed “unlawful and immoral acts” in the workplace. According to Darty, Peskin destroyed evidence, allowed uncertified officers to use radar guns and chemical spray, poked a handcuffed man until the man’s nose bled, and mistreated officers by firing plastic bullets at them.

Darty claims that Peskin became aware of the allegations in September and suspended Darty for three days for allegedly “lying about how a shift was covered.” According to Darty’s complaint, Peskin continued to retaliate by scheduling Darty to work unfavorable and additional shifts, including on Christmas and weekends. When Darty told Peskin that he could not work a third shift because of his childcare obligations, Peskin responded, “Maybe it’s time to a find a new job.”

The lawsuit also alleges that Elmwood Place Mayor Stephanie Morgan was negligent in investigating the incidents of police misconduct that Darty described in his July 2011 letter.  Under Ohio law, it is mandatory that government officials act upon claims of this nature.

The Employment Law Group® law firm represents employees nationally who have blown the whistle on hostile work conditions and have been the victims of retaliation.

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Whistleblower Alleges That Contractors Cut Corners at Marlins Stadium

Roy Fastabend, a welder and inspector, alleges that he was fired after reporting that in order to save time and money, a subcontractor cut corners in the construction of the new stadium that will be home to the Florida Marlins.  Fastabend claims to have witnessed  Mike Garcia, a fellow inspector , routinely ignoring engineering specifications and falsifying records, signing off on welds that were never examined.

When Miami-Dade County Inspector General (IG), Chris Mazzella, learned of Fastabend’s complaints, the IG sent the Marlins a letter asking detailed questions about the welding done in the ballpark. The Marlins general contractor, Hunt/Moss, reported that after receiving the Inspector General’s letter, it had many parts of the stadium redone or replaced .  Miami-Dade County then had its engineer of record sign off on the final inspection.

“If people knew what was going on there or how they did things, I mean, I won’t go to that stadium… I won’t take my kids into that place,’’ said Fastabend. “Sadly, it looks beautiful, but there are questions.”

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Marine Corps Whistleblower Has Top-Secret Security Clearance Reinstated

Earlier this month, the Navy Department in charge of security clearances reinstated the top secret security clearance of Franz Gayl, a civilian science and technology advisor for the Marine Corps. Gayl was placed on administrative leave for criticizing military leaders and allegedly stealing classified information. According to the Associated Press:

Beginning in 2007, Gayl accused the Marine Corps of gross mismanagement for failing to answer the call in 2005 for heavy-duty trucks called MRAPs (M-raps) that could withstand roadside bombs in Iraq. The trucks would eventually be delivered in large numbers to all of the military services and were credited with saving thousands of lives. Gayl also said requests from commanders in the field for other key technologies that could help troops disperse crowds and detect explosives were slow to be delivered because of flaws in the acquisition system and internal disputes over money.

Gayl was harassed and retaliated against by his supervisors, including being accused of stealing Marine Corps property, after coming forward with his allegations. Gayl’s supervisors accused him of inserting an unsecured flash drive into his work computer without authorization. However, there were no witnesses or evidence that he did any of the acts of which he is accused. In October 2010, the Marine Corp suspended Gayl’s security clearance and placed him on paid administrative leave, facing indefinite suspension.

Earlier this month, a Navy Department office in charge of security clearance determinations reinstated Gayl’s top secret security clearance, which voided his suspension and allowed him to return to work.


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DCAA Whistleblower Promoted After Enduring Years of Retaliation

The U.S. Office of Special Counsel (OSC) announced its conclusion last week that the Defense Contract Audit Agency (DCAA) violated the Whistleblower Protection Act when it retaliated against Diem-Thi Le for blowing the whistle on fraudulent DCAA practices.

Ms. Le worked for the DCAA as a Senior Auditor for 17 years. In September 2005 Le was performing a routine audit when, according to her statement before the Senate Committee on Homeland Security and Government Affairs, she found “that the accounting system was inadequate in part and, as a result, the contractor was misallocating and mischarging costs to the Government.” Le reported this discrepancy to her supervisor; however, the DCAA ignored her findings and altered them in favor of the contractor. Le contended that supervisors approved findings of compliance not supported by audit work papers or simply changed or deleted findings of noncompliance, because DCAA operated on a metrics-oriented culture, focusing on the quantity of audits performed rather than the quality of the audits.

On November 13, 2005, Ms. Le filed a complaint with the Department of Defense Office of Inspector General (OIG) alleging that DCAA violated the Generally Accepted Government Auditing Standards (GAGAS). According to the U.S. Office of Special Counsel, Le subsequently made the same allegations to the U.S. Government Accountability Office (GOA) and the Defense Criminal Investigative Service (DCIS). However, due to the number of complaints OIG was processing, Le’s complaint was erroneously referred back to DCAA managers.

The OSC executive summary states:

Once DCAA supervisors came to believe that Le made the disclosures about [DCAA’s Santa Ana Branch Office’s] auditing practices, they took a series of retaliatory actions against her. They denied her a cash award for the performance year ending June 30, 2006, although she had received an outstanding performance rating. Then, they lowered Le’s performance ratings in 2007 and 2008 to fully successful, although she had received outstanding performance ratings in each of the four preceding years. They also failed to give Le performance awards in 2007 and 2008.  

The OSC conducted a two year investigation and determined that DCAA “engaged in a pattern and practice of retaliation against Ms. Le for her disclosures.”  The OSC determined that DCAA must take full corrective action, which includes changing Le’s performance ratings to the highest level of achievement, awarding her retroactive performance awards, and lifting a gag order that had been imposed on her. DCAA also offered Le a promotion and the officials that retaliated against Le either reassigned or were disciplined.

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DC Federal Court Holds Employee Reporting Wrongdoing Can Proceed with Wrongful Termination Lawsuit

The E. Barrett Prettyman Federal Courthouse lo...

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On September 12, 2011, the United States District Court for the District of Columbia ruled that Jonathon Myers can proceed with his wrongful termination lawsuit against his former employer, Alutiiq International Solutions, LLC, and his former supervisors.  Myers reported to several supervisors an inappropriate romantic relationship between another supervisor, George Bailey, and an employee, Lori Strictland, where Bailey had given Strictland unearned raises and promotions and had hired relatives and friends of the employee to positions for which they were not qualified.  Since Bailey and Strictland were working on a government contract, such conflicts of interest are a violation of federal regulations.

The matter was referred to the Office of Inspector General (OIG), resulting in Bailey’s removal from the contract and Strictland’s termination.  A day later, Alutiiq also terminated Myers.  In his complaint, Myers alleges he was unlawfully punished because his reporting of the conflict of interest may have jeopardized the government contract.

In Adams v. George W. Cochran & Co., 597 A.2d 28, the D.C. Court of Appeals held that an at-will employee stated a cause of action for wrongful discharge where the employee would have been forced to violate the law in order to avoid being terminated.  The D.C. Court of Appeals then expanded this public policy exception in Carl v. Children’s Hospital, 702 A.2d 159 (D.C. 1997). The exception may exist where the employee acted in furtherance of a public policy “solidly based on a statute or regulation that reflects the particular public policy to be applied, or (if appropriate) on a constitutional provision concretely applicable to the defendant’s conduct.”

The court held that the facts alleged by Myers establish a prima facie claim of wrongful termination, thus allowing the lawsuit to proceed.  The court also held that Myers could proceed on his claim that his supervisors were estopped from terminating him after they had promised not to retaliate against him if he cooperated with the OIG’s investigation.  The case is Myers v. Alutiiq Int’l Solutions, LLC.

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Voices for Corporate Responsibility Hosts Whistleblower Seminar on Dodd-Frank Act SEC Whistleblower Reward Provision

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Washington, D.C. — Voices for Corporate Responsibility is hosting a Whistleblower Seminar on Tuesday, May 10, 2011 at the Fairmont Hotel.  The seminar will include whistleblower attorney Jason Zuckerman as a panellist and will consist of two sessions: Will Internal Compliance Requirements Strengthen or Weaken the Law? and Can the SEC Handle the Whistleblower Law? To register for the event and learn how the proposed SEC rules will affect the implementation of the Dodd-Frank Act, click here.


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