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Whistleblower wins round in fight against state workplace safety agency

Markus Schweiss, Michael Frey/Wikimedia Commons

Commentator John L. Smith says a federal appeals court “opened the door” for a whistleblower’s closely watched lawsuit to proceed against Nevada’s workplace safety agency.

A three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously ruled last week that Helen Armstrong can sue four officials from the Nevada State Occupational Safety and Health Administration, or OSHA.

“It basically opened the door for her to refile a lawsuit focused on the issue of whether OSHA followed its own best practices, whether they kept her identity confidential, and whether their failure to do so makes them liable,” Smith told State of Nevada.

The court reinstated much of Armstrong’s lawsuit, which alleges she faced retaliation after her name was provided to her employer following what she thought would be an anonymous complaint.

A decade ago Armstrong worked for a medical practice and along with a co-worker complained to OSHA about improper practices, including reusing syringes and using expired medicines.

“They brought those concerns to management, and when nothing changed, that's when they pursued whistleblower complaint with Nevada OSHA,” Smith said.

Armstrong contends that after her employer learned she made the complaint — something OSHA says was accidental — she was written up for policy violations despite her good work record.

“She served for more than 20 years at the medical practice. She never had a complaint, not one complaint,” Smith said. After making her whistleblower allegations “she began receiving one after another complaint from her colleagues; they built a thick file.”

Armstrong’s allegations against her employer “were considered serious enough to level citations and fines against the medical practice,” Smith said. “However, the harassment that she suffered, continued until she was driven from her job.”

A lower court threw out her original lawsuit, saying employers are free to fire at-will employees without cause, but the appeals court’s ruling, which pointed to the health and safety nature of her complaints, will allow much of it to proceed.

“This case really focuses on whether Nevada OSHA is doing its job effectively and with ethics, Smith said. “And I think that raises a real question that that might be revisited in other whistleblower type complaints that come through that office.”

Representing Armstrong is John Tye, founder of the Whistleblower Aid organization and a former whistleblower himself. While working in the federal government, Tye went through channels to report warrantless surveillance of Americans.

“He has a substantial history of representing persons in government and in private industry,” Smith said.

John L. Smith, contributor, State of Nevada

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