One of the Longest-Running Whistleblower Cases Is About to Get Longer
Ex-FAA inspector who claimed she was fired for disclosures will appeal MSPB denial.
Kim Farrington’s job with the Federal Aviation Administration ended in 2004, yet her protest, eventually directed to the Merit Systems Protection Board, was denied only three weeks ago—two and a half years after her latest hearing. Now the Florida-based member of the community of whistleblower activists plans to appeal, Government Executive has learned.
It’s a case that combines questions of whether complainants go through proper channels, whether a termination constitutes an illegal reprisal for whistleblowing and—perhaps most tellingly—whether complainants and the responsible federal agencies act with sufficient dispatch.
Farrington, now age 61, was 48 when she began her journey through the complex federal whistleblower adjudication process, during which she became mobilized by advocacy groups pursuing reforms to the process.
As a safety inspector in the office focused on the carrier AirTran, Farrington, who had won several productivity awards since joining the FAA in 1997, became concerned in 2000 about poor training of flight attendants and “problems related to replica fuselages used to teach flight crews how to exit the back of a Boeing 717 in an emergency,” according to a 2008 Washington Post profile. “AirTran was using a mock-up of the tail section of a DC-9, not a Boeing 717 replica, to teach flight attendants how to deploy an emergency slide to exit the plane. The two planes are similar, but the tail sections are slightly different.”
Farrington met with resistance from her direct supervisor and from AirTran employees, and she eventually disclosed this to a supervisor several layers up in another location. Some facts of her termination are in dispute, according to the June 1 MSPB ruling that the board provided to Government Executive. She was steered to counseling and went on medical leave, prompting the FAA managers to conclude that she was not available to continue in the job.
Farrington, however, waited until 2009 to file a case with the Office of Special Counsel, a delay that damaged her case. The plot thickened in 2012, when Congress passed the Whistleblower Protection Enhancement Act, which appeared to strengthen her case. The next year she joined with other activists in signing a letter of support for whistleblower protection improvements in the annual National Defense Authorization Act.
Her case, meanwhile, had migrated to the MSPB after its three members in 2012 reversed a 2010 dismissal and remanded it for further adjudication. MSPB held a hearing on her case in Orlando, Fla., in December 2013. The ruling released this month by Administrative Judge Sharon J. Pomeranz in MSPB’s Atlanta region denied her appeal.
“I find that the appellant has provided no satisfactory explanation for her delay in bringing this action,” the judge wrote. Further, “although I have found the requirement to cease communications with AirTran to be a personnel action,” the judge said, “I find a preponderance of the evidence does not support that it was done in retaliation for any protected disclosures the appellant may have made.”
The passage of time was also cited as a hindrance. Several key witnesses “were not available to testify at the hearing in this matter because they could not be located,” the ruling said. “I also find that her delay has caused material prejudice to the agency’s ability to defend itself in this appeal to the extent it would not be able to establish certain personnel actions by clear and convincing evidence.”
That outcome—but particularly the two-and-a-half-year wait—seemed unfair to Robert MacLean, the well-known Transportation Security Administration civil aviation specialist whose whistleblowing got his name on a Supreme Court case.
“Agencies know that the MSPB is exceptionally underfunded and overburdened,” he told Government Executive via email. “This is why they quickly fire you, bankrupt you, and get your attorney to quit after not making payments, and why most whistleblowers take the standard agency-bribe: a clean record and an active security clearance if you quietly resign or go into the `black hole’ of the board.”
Farrington has until July 6 to file an appeal.