GovernmentExecutive.com

A House lawmaker last week introduced legislation intended to strengthen protections for workers who expose misdeeds at federal agencies.

The Whistleblower Protection Enhancement Act (H.R. 3281), sponsored by Rep. Todd Platts, R-Pa., would clarify the methods civil servants can use to divulge agency mismanagement without fear of retaliation. The act expands on legislation introduced by former Rep. Connie Morella, R-Md., during the last congressional session. That bill never made it out of committee.

Proponents of Platts' bill say it would bolster the 1989 Whistleblower Protection Act, which has taken a beating from several recent federal circuit court decisions. The 1989 law is designed to prevent current and former federal employees who reveal significant mismanagement and behavior that violates regulations or endangers the public from being harassed, fired or otherwise retaliated against.

But federal circuit judges have ruled that civil servants who directly criticize the person they believe is responsible for mismanagement, as opposed to alerting a higher authority, are not legally insulated from retaliation. Civil servants disclosing misbehavior while engaged in normal work duties are also left unprotected according to circuit court decisions, as are employees who reveal information that is already known.

The legislation introduced by Platts on Oct. 9, and a bipartisan Senate companion bill (S. 1358), would amend Title 5, Chapter 23 of the United States Code to clarify that whistleblower disclosures are protected regardless of "time, place, form, motive, context or prior disclosure made to any person by an employee or applicant, including a disclosure made in the ordinary course of an employee's duties."

In order to come forward and report problems at agencies, civil servants need to feel they are "truly protected" by the law, Platts said in a statement.

"Being a whistleblower takes courage," he said. "Reporting waste, fraud and abuse within the federal government should not result in harassment, a damaged career or the loss of income or employment altogether."

Older, But Not Wiser

An analyst at the Labor Department's Employment and Training Administration claims the agency passed him over for a promotion, favoring a younger job applicant. But the U.S. District Court for the District of Columbia is not obligated to hear his age discrimination complaint, a federal appeals court ruled Tuesday.

The GS-13 level analyst, Robert Rann, alleged that in 1997, the Labor Department denied him a GS-14 level position because of his age. At the time, he was 64 years old. The department hired a 37-year-old for the job.

Rann filed an informal discrimination complaint with Labor's Equal Employment Opportunity office, which is called the Civil Rights Center. After an attempt at mediation failed, he submitted a formal complaint asking the center to investigate.

But Rann subsequently refused to cooperate with the investigation. He said he felt providing information requested by the EEO office would have been a "losing proposition." The administrative process would also "drag on forever, ever and ever," he said.

Instead of helping Labor's investigator, Rann filed a lawsuit in the U.S. District Court for D.C. The court dismissed his case, arguing that he lacked grounds to file suit in federal court since he had not exhausted remedies offered by the Labor Department's EEO office.

Under the 1967 Age Discrimination in Employment Act, federal employees can file discrimination lawsuits in federal court up to 180 days after the alleged act of discrimination occurs, as long as they give the Equal Employment Opportunity Commission a 30-day advance notice.

Alternatively, the act allows civil servants to try and resolve differences through the Equal Employment Opportunity Commission. If unsatisfied with the EEOC's decision, the federal worker could then file a case at a federal court.

In an Oct. 14 ruling, the U.S. Court of Appeals for the D.C. Circuit upheld the district court's decision to dismiss Rann's case. Rann had not followed either of the Age Discrimination in Employment Act procedures for filing a lawsuit in federal court, the appeals judges reasoned.

If Rann had wanted to take his case directly to federal court, he would have needed to notify the EEOC 30 days in advance. Filing a formal request for an EEO investigation within the Labor Department is not an adequate substitute for notifying the commission, the appeals court decided.

Rann would have also had grounds to bring his case to federal court if he had cooperated with Labor's EEO investigators and later been unsatisfied with their findings, the appeals judges said. "Nothing in the EEO investigator's requests - plainly aimed at facilitating the investigation - gave Rann reason to believe a response would be futile," the appeals decision said.

"We see no sense in Rann's proposal to turn his own obduracy into a basis for penalizing the agency," the appeals judges added.

Robert W. Rann v. Elaine Chao, Secretary of Labor, U.S. Court of Appeals for the D.C. Circuit (02-5200), Oct. 14, 2003