All Should Be Forgiven–I’m a Whistleblower!

A federal employee who is subject to discipline will sometimes argue that the discipline was in retaliation for whistleblowing activity and that the discipline should be overturned. In this Air Force case, an employee admitted manipulating a process to steer contracts to one company but says the disciplinary action was retaliation. The court doesn’t buy it and leaves the 30-day suspension in place.

The Federal Circuit recently upheld an arbitrator’s decision that in turn upheld the Air Force’s suspension of a 20+-year employee. The employee unsuccessfully argued that the suspension has been illegal reprisal for her whistleblowing, but neither the arbitrator nor the appeals court bought the argument. (Coleman v. Department of the Air Force, C.A.F.C. No. 2006-3395 (nonprecedential), 6/8/07) The following facts are as reported by the court’s brief decision.

Coleman works for the Transportation Management Office at Robins Air Force Base where she is responsible for picking moving companies to handle change of station moves for base employees. She is supposed to follow an automated system that selects a carrier. The idea is to rotate the contracts equitably among several approved carriers.

Coleman’s 30-day suspension was based on her manipulating the system to book six moves to one particular company out of turn over a one-month period. A Sgt. Weathersby brought this to the attention of Coleman’s supervisor when he received complaints from several other carriers that they had been passed over for moving contracts.

Now, here’s where the facts get interesting. The arbitrator who heard Coleman’s grievance appealing her suspension found that it was this very same Sgt. Weathersby who had asked Coleman to manipulate the system and steer the contracts to the one company. (No word in the court’s decision as to what, if anything, happened to Sgt. Weathersby for his role in this.)

But, the plot thickens.

Less than a month after the good Sgt. Weathersby reported Coleman’s manipulation of the system (a manipulation that he, ironically, had a large role in), Coleman turned around and anonymously called the base commander’s "hot line" to report that Sgt. Weathersby was misusing a government car. A few days later, another hot line call came in complaining about Coleman’s improper routing of moving contracts to one carrier.

Needless to say, one of Coleman’s defenses to her suspension was that it was in retaliation for her whistleblowing. Of course, the sergeant was not her supervisor, and the whistleblowing occurred after Coleman’s manipulation of the contracts was reported to her supervisor. At arbitration, while admitting she manipulated the selection process and steered contracts to one company, she further argued in defense that she did it because Weathersby had told her to.

The arbitrator did not find merit in either of Coleman’s defenses and upheld the suspension. Undaunted, Coleman marched to the appeals court where she argued that the arbitrator erred in not buying the whistleblowing defense. (p. 3)

The court astutely points out that Coleman’s alleged whistleblowing—while the complaint had been anonymous, Coleman argued that it was "commonly assumed" that she is the one who had reported Sgt. Weathersby–came after the investigation into Coleman’s manipulation of the system had been launched. The court agreed with the arbitrator that a "common assumption" is not enough to prove that the deciding official even knew about Coleman’s alleged whistleblowing. (p. 4)

In short, the 30-day suspension stands.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.