The recent U.S. Court of Appeals for the Federal Circuit decision in Miller v. Department of Justice offered some clarification as to the standard for how to determine if an agency met its responsibility under the Whistleblower Protection Act to demonstrate it would have taken the same action with its personnel in the absence of the employee’s protected whistleblowing act.
The plaintiff in the case, Troy Miller, worked as a superintendent of industries at a Texas prison, overseeing a factory in the prison that produced ballistic helmets. In October 2009, Miller reported what he believed to be mismanagement of the factory’s funds. In December 2009, the DOJ’s Office of the Inspector General (OIG) visited the factory to conduct an investigation. The OIG requested Miller’s superior to tell him not to work that day so the staff would not feel uncomfortable by the presence of the superintendent during the inspection.
The next day, Miller claimed someone had placed rejected material on the production line as a form of sabotage, and he requested a closing of the factory until the incident could be investigated. Just hours later, Miller was informed he was being reassigned and no longer held his position. He was repeatedly reassigned over the next four-and-a-half years to menial jobs, and eventually filed a suit claiming he was retaliated against.
In siding with Miller, the court reaffirms and strengthens the idea that employers must be able to prove they would have taken the same action — in this case, the alleged retaliation — regardless of the employee’s whistleblowing act. Evidence includes the motive for retaliation and a record of how the employer has handled non-whistleblowers in similar situations.
There are now more protections available to whistleblowers than ever before, but these individuals still face some significant risks, including retaliation from their employers. For further guidance, contact a skilled Dallas attorney at Whistleblower Law for Managers.