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Whistleblower cannot be punished for revelations in news media

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    NMU         WASHINGTON, D.C.         Freedom of Information         Dec 16, 2002    

Whistleblower cannot be punished for revelations in news media

  • The government cannot retaliate against an employee whose reports of health and safety defects appeared in the news media, a labor department review board held in mid-November.

The Los Alamos National Laboratory in northern New Mexico must pay back salary increases, costs and attorney’s fees to whistleblower Joe Gutierrez, a U.S. Department of Labor administrative review board ruled Nov. 13.

The board held that the laboratory retaliated against Gutierrez after he reported safety and health concerns that were not being addressed by Los Alamos to a public interest group and members of Congress. Local newspapers reported his concerns.

In 1996 Gutierrez, who worked in internal assessments at Los Alamos National Laboratory, revealed to the Citizens Concerned for Nuclear Safety, Sen. Jeff Bingaman (D-N.M.) and Bill Richardson, then a Democratic congressman from New Mexico, that the laboratory was not complying with the Clean Air Act or adhering to other standards. The Santa Fe New Mexican, the Santa Fe Reporter and the Albuquerque Journal reported some of Gutierrez’s concerns during the next year. He also was interviewed by the news media.

In August 1997 Gutierrez’s satisfactory performance rating at Los Alamos cited “unfavorable” feedback from managers whose programs he had assessed. When Gutierrez complained about the feedback remark, his supervisor added a note that the comment related to media coverage on “internal assessment issues.” The managers “don’t want to read about” real or perceived deficiencies in the media, he wrote. Employees need to be sensitive to these concerns and avoid media coverage of these issues, he said.

Despite Gutierrez’s satisfactory rating he received a lower pay raise than others in his group and was told, he said, not to discuss environmental, health and safety concerns with anyone outside “established avenues.”

Gutierrez complained to the Occupational Safety and Health Administration, which found that the laboratory violated the whistleblower law, and an administrative law judge ordered restitution. The laboratory appealed to the administrative review board.

The board said that a performance appraisal citing “unfavorable” feedback is a personnel action. Revealing information on health and safety issues is a protected activity, it said, and the laboratory in chastizing Gutierrez retaliated against him. The board awarded him damages.

Tom Carpenter, an attorney with the Seattle office of the Government Accountability Project, who helped Gutierrez appeal, said that Gutierrez, aware of a breakdown in procedures at Los Alamos, tried to resolve problems internally and when he could not, he revealed the information externally. That action is what the Nuclear Whistleblower Protection Act allows, Carpenter said.

The sad part, Carpenter said, is that even though Gutierrez has prevailed at every level, the public is still paying the government, which continued to push this case, for harassment of a whistleblower.

(Gutierrez v. Regents of the University of California, before the Administrative Review Board; Attorneys: Carol Oppenheimer, Santa Fe, NM; Tom Carpenter, GAP, Seattle) RD


© 2002 The Reporters Committee for Freedom of the Press

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