Tuesday, August 15, 2017

Don't Whistleblow! (or why I left my job at FDA)

For those who are wondering why I left my job at FDA, it was due to persistent harassment and whistleblower retaliation by FDA management (Asim Akbari, Michael Gandolph, Kristine Leiphart, Walter Harris, Stephanie Collins, Christine Galvin, Valeria Ramirez, and Yvette Simpson).  The case has settled now to the "mutual agreement" of all parties.  I specifically retained my right (in the settlement) to discuss all of the events that led up to the settlement.   This is the complaint that I filed in the Merit Systems Protection Board describing my whistleblowing and the subsequent actions of FDA.  I will upload some of the attachments later, but I will need to review them first to ensure that I can legally share them.  


Lessons Learned: 
1) DO NOT WHISTLEBLOW.  If you work for the federal executive and you intend to keep working there, never report anything, no matter what.  No one will care; no will listen; you will be harassed openly and with impunity by all levels of management; your reputation will be tarnished; and you will most likely never get another award or promotion for the rest of your federal career.  It is also very likely that the Agency will manufacture a reason to fire you (the majority of retaliation cases are based on the Agency firing the whistleblower, usually for dubious/subjective reasons, such as "inappropriate conduct.")

In one case, where the employee was attempting to resolve a pay-issue (something that was the government's error and was costing the employee money in his paycheck), his Agency fired him claiming that he was "absent without excuse" when he was dealing with the issue (which he had told his supervisors he would be doing).  

In another case, the whistleblower, on finding problems during an inspection, made the statement: "this is what command gets for not listening to me." The Agency then used this one statement as an excuse to discipline and eventually remove the employee claiming the following violations:  (1) making false statements; (2) making statements with the intent to disparage the command; and (3) conduct unbecoming a federal employee. If the Agency's response seems extreme, it was, the Agency just wanted to get rid of the guy for whistleblowing and were willing to use any excuse (manufactured, embellished, or otherwise) to do so, including throwing the book at a guy or making one statement under his breath (the MSPB judge made that factual finding).  

Where Agencies have the power to discipline and fire employees based on any conduct (subjective or otherwise), employees are correct to be fearful that any perceived disloyalty to the agency (which whistleblowing usually involves, because an employee usually would not be whistleblowing unless they had already alerted and been ignored by management regarding the alleged violation) will result in retaliation and permanent harm to their careers.  

2) The Office of Special Counsel will not help you and will bend over backwards to support management against you.  If you think I am exaggerating then ask yourself why OSC gets more than 5500 cases a year alleging whistleblower retaliation and congratulates itself for disciplining 15 employees a year in connection with those cases. To trust those numbers, means that 99% of complaints are invalid.  Do you really think that 99% of government employees who file complaints are lying?  https://osc.gov/Resources/CBJ-FY2018-Final.pdf.  

In my particular case, OSC ignored the majority of my evidence and ultimately issued me a letter stating that no actionable retaliation had occurred.  In this letter, OSC misstated the law several times (despite my providing them with case citations that correctly stated the law), misconstrued facts, and made some absurd speculations as well (such as stating that Asim Akbari, the second-in-command of HHS OGC Ethics, the office about which I whistleblew for over a year prior to Akbari being hired by FDA's Division of Ethics and Integrity, had no motivation to retaliate against me). Because I am an attorney and I knew that OSC was wrong, I continued to pursue my case ultimately resolving it by settlement.  However, most federal employees would give up when OSC tells them they don't have a case. Ironically, OSC, the agency meant to protect whistleblowers, emboldens rather than deters retaliation by agency management.  

One reason why OSC functions like this is the language of the Whistleblower Statute which requires that OSC prosecute any case in which whistleblower retaliation occurs.  Because OSC does not have the discretion to turn down a case where they do find retaliation occurred (even if the retaliation was minor), OSC is motivated instead to use their resources and staff to find excuses (legally/factually sound or not) to dismiss complaints as not having merit (to the detriment of the thousands of federal employees trying to do the right thing and thinking that OSC will protect them against retaliation).  

After OSC refuses to prosecute a case (by claiming that no actionable retaliation occured), the individual has the right to bring the case directly in front of the MSPB.  It is hard to know just how many meritorious cases where OSC finds "no violation" there are, because good cases, like mine, settle (my case was fully settled, to my satisfaction, within 2 months of filing my complaint with the MSPB). The cases that do end up being fully litigated in front of the MSPB are generally weaker (which is why the agency doesn't settle them)  That said, when a case does end up in front of the MSPB and the MSPB judge determines that whistleblower retaliation did occur, the judge is required to forward the case back to OSC so that OSC can do its own investigation and discipline any agency employees who engaged in retaliation.  Consider the irony here.  Those cases that the MSPB refers back to OSC are cases that OSC already had the chance to review (because whistleblowers are required to file initially with OSC) and OSC already determined that the case had "no merit" and didn't warrant any investigation.   Yet, a court found that not only did the case have merit, but the whistleblower retaliation statute was violated. And these are just the weak cases because good cases never even make it into the courtroom, so we'll never know just how many "meritorious" cases, OSC has thrown out, to the detriment of whistleblowers and the benefit of agency management engaging in retaliation.  

Given the absurdity of OSC's response to my case, I was curious about OSC's initial response to those cases that eventually get referred back to them by the MSPB.  So I put in a FOIA request for a list of MSPB cases, which they sent me.  On May 18, 2017, I sent the list to OSC and asked for the preliminary and final determinations letters for those cases (in order to see how much law they misstated in making their determination to not prosecute the case that eventually was successful in front of the MSPB).  Unfortunately but not surprisingly, OSC does not comply with FOIA so I'm still waiting on the response months later.    

3) The statutory whistleblower protections are not effective in deterring retaliation.  There's a few reasons for this:  

First, litigation is expensive, time-consuming, and very stressful.  Rightfully, most employees prefer to avoid spending years in court (usually after being unfairly fired).  This goes back to my advice to never whistleblow.  No matter how much you might recover at the end, it will take years, cause a huge amount of emotional distress, and you will never be made fully whole. Even if you "win" your case, your federal career will never recover (many whistleblowers end up in court multiple times because the retaliation continues even after they are "reinstated" or have the personnel action corrected).  

Second, because most whistleblowing will involve the unit the employee is working in (and usually wrongdoing by the employee's management), the employee is forced to continue working in an environment where he is perceived as "disloyal" or a "troublemaker" for speaking up and reporting things that management had already determined were not problematic (or violations of law that management is actively participating in).  During the interim period from the date of the whistleblowing/retaliation to the final outcome in a courtroom, the employee is treated like a pariah at the office, colleagues are afraid to interact with him, and any perceived infraction is investigated and pursued by the Agency in the hopes that they can fire the employee for it.  The employee is also subject to the whims of a pissed-off management, which has the power to change the employees working conditions, write up the employee for disciplinary issues, lower an employee's performance appraisal score, and manufacture other reasons to harass the employee.   

Third, management is never held accountable for retaliation. Therefore, even where an Agency eventually loses in court and is forced to reinstate an employee, promote the employee, or settles a case with an employee, the management officials themselves who engaged in the retaliation, get off scot free. It is perfectly rational for a management official to retaliate against any whistleblower because most of the time, the employee will give up, quit, or be fired (and thus out of management's hair), and in the minority of cases where the employee "wins," the management official who retaliated faces no consequences at all.  Openly harassing any whistleblower in your office creates an environment of fear and serves as a useful way for agency management to curb any inclination of other members of the staff to whistleblow as well. 

Solutions: 
Based on my experiences, if Congress were asking me how to strengthen whistleblower protections, I would suggest that they add a provision to the whistleblower statute that a whistleblower has the right to record anything that takes place in the federal office with one-party consent (meaning, only the whistleblower needs to know the recording device is on, and the whistleblower must be part of the conversation) and has the right to keep these recordings a secret. The reason for this is that once a person whistleblows, they have a target on their back and agency management will try to manufacture reasons to fire them, usually by claiming the employee was insubordinate, disrespectful, or disruptive (almost always it is something subjective that is difficult for a person to dispute without corroboration).  Because other employees fear retaliation, the employee being targeted is unable to defend himself; witnesses will only back up agency management's version of events. Allowing the employee to make recordings protects the employee from false allegations and, often, may be the only corroborative evidence the employee has to substantiate claims of retaliation.  

Federal law already allows for recordings with one-party consent, but Agency management has discretion to prohibit it (and an employee can be fired for not following management's directives).  The whistleblower statute should enable employees to protect themselves by specifically authorizing whistleblower employees to record with one-party consent, notwithstanding state laws or management directives.  The whistleblower statute should also state that any and all recording that an employee makes pursuant to the statute will be admissible in the MSPB (it already is admissible based on case law, but the statute should make it explicit).  There should not be privacy concerns here because (1) the employee is part of all these conversations, so there is no expectation of privacy where you are speaking/interacting with someone else; (2) all of these conversations/meetings will only be taking place on government time in the government workplace, where again, there is not an expectation of privacy.  The ability to record conversations preserves factual accuracy in describing past events/conversations, which often are the basis of agency management disciplining whistleblowers.    

In my own case, recording certain conversations was the only proof that I had that my supervisor (Michael Gandolph) was lying through his teeth.  Once Asim Akbari, the office Director, learned about my recordings, he formally told me as a management directive that I could no longer do so.  At that point, Akbari was able to (and proceeded to) invent reasons to discipline me based on "conduct" in the office and I was limited in my ability to defend myself as my colleagues were too afraid to speak up and Akbari controlled his management such that they supported anything he said. 

I will update this post with more attachments/information in the future.  

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