As you may know, Army Corp of Engineers whistleblower Bunny Greenhouse has been actively involved in the fight for stronger whistleblower protection. She has often said that she is only trying to allow the truth to be spoken. Studies have proven that the best way to discover the truth is to encourage employees to blow the whistle and protect them from retaliation.
Ms. Greenhouse, concerned about the provisions included in the Senate bill, wrote a letter urging the Senate and the White House to “stop paying lip service to strong whistleblower protection for federal employees.” She stated that despite all the retaliation she suffered as a result of blowing the whistle on the no-bid contract to Halliburton she would still not be able to tell her story to a jury of her peers. Ms. Greenhouse explained that most federal employee would also be denied court access under the current Senate bill.
NWC Executive Director Stephen M. Kohn has asserted in the 12-part blog series entitled “What’s Wrong With The Senate Whistleblower Bill?” that the “when read together, the numerous ‘poison pill’ provisions inserted into S. 372 all but guarantee that very few, if any, federal employee cases will ever be removed to district court for a real trial.”
On the other hand, according to a news media report, the White House and members of the Senate including Senator Daniel K. Akaka (D-HI) assert that the Senate bill would dramatically improve protections for federal employees and give whistleblowers, like Bunny Greenhouse, access to federal court.
This assertion is wrong, however.
The Senate bill limits access to jury trials to employees who suffer a major personnel action as defined by Section 7512 of the Civil Service Reform Act (5 U.S.C. § 7512). This means that a whistleblower must suffer a removal, a suspension for more than 14 days, a reduction in grade, a reduction in pay, or a furlough of 30 days or less (there are additional limitations to these five actions) in order to potentially receive a jury trial in federal court.
In Ms. Greenhouse’s case, a federal court has already ruled that she did not suffer a major personnel action as defined by Section 7512. A copy of the Court’s ruling is linked here. This ruling directly contradicts the exaggerated claims by the White House and proponents of the Senate bill about the true scope of the bill’s jury trial provisions.
It is clear that Ms. Greenhouse would not qualify for the right to jury under the Senate’s proposed whistleblower bill unless the Senate bill is changed to remove the limitation to jury trials for only those cases involving major personnel actions.
So, the question is what do you think will happen?
My opinion is that federal agency employers will just get “smarter” about how they retaliate against a whistleblower. They will avoid the list of actions that could potentially expose them to real consequences – a jury trial in federal court. They will suspend a whistleblower for 13 days instead of 14 days. They will transfer employees to another position outside their area of expertise without a reduction in grade or pay. There are many ways that an employer can create a hostile working environment and silence a whistleblower. The only way to truly protect whistleblowers is to prohibit any retaliation against a whistleblower.