The American Civil Liberties Union (ACLU) of Ohio issued a press release today calling on the University of Akron to retain Professor Matt Williams. Prof. Williams resigned his adjunct position last October to protest the university's policy of collecting a DNA sample from all job applicants. The practice is illegal under the newly enacted Genetic Information Nondiscrimination Act (GINA). The university rehired Prof. Williams to teach this semester, but has now rescinded that contract on grounds that his prior resignation makes him unreliable. It is hard to see how this is anything other than firing him for blowing the whistle.
The governor of Ohio and an attorney working for Ohio's Bureau of Workers Compensation are disagreeing about what is a "typical whistleblower situation." According to the Columbus Dispatch, attorney Joseph Sommer sent an email to the Governor last May. He asked for an official state investigation of why a state panel had not complied with a state law requiring nominations for the Industrial Commission within sixty (60) days of a vacancy. Sommer used the state's email account to send his email. Instead of investigating the state's nominating panel, the state investigated Sommer for using his work email account. The state has now issued a reprimand to Sommer for communication that was less than "professional." Sommer is contesting it. The Governor's office says that Sommer's case, "differs from a typical whistle-blower situation." I don't know. An employee points out how superior officials are breaking the law, and the boss blames the messenger. That sounds pretty typical to me. The boss says that the whistleblower didn't use the proper means for raising the concern. That sounds pretty typical, too. The boss punishes the whistleblower. Typical again. Sommer may benefit from following the Supreme Court's consideration of City of Ontario v. Quon. The issue there is whether employees can have any expectation of privacy in using work equipment to communicate. Also, it is ironic to have a state claiming that the whistleblower communication was personal and didn't belong on the work computer. That argument could support Sommer if he were to claim that his email was made in his personal capacity and protected under Garcetti v. Ceballos, 547 U.S. 410 (2006).
I am pleased to announce here that I will be delivering the keynote address of the commemoration of Dr. Martin Luther King, Jr., Day in Tuscarawas County, Ohio. The event will begin at 7:00 p.m., this Monday, January 18, 2010, at the First Baptist Church, 140 Regent St., Dover, Ohio. The local Time Reporter newspaper has a lead story about the event in today's edition. The event will be an opportunity for me to speak about my work here at the National Whistleblowers Center, and how we draw on the message and mission of Dr. King. Dr. Martin Luther King, Jr., serves as a prophet for the present day. His message and life work ended apartheid in America. Yet, his call for an end to povery, discrimination and war are still unfulfilled. The national holiday in his honor is an opportunity for us to think about how every person has the capacity to change within, and to change the world.
An Ohio court of appeals has issued an extraordinary writ, requiring a state judge to proceed with a whistleblower's wrongful termination case. The Court of Appeals for Stark County, Ohio (part of the Fifth Appellate District in Ohio) issued the writ of procedendo on November 3, 2008.
In the case of State ex rel. Carpenter v. Brown, 2008-Ohio-5687, James Carpenter asked for the writ to compel Ohio Common Pleas Judge Charles Brown to lift a stay and proceed with his lawsuit. Judge Brown had stayed the case in September 2007 to wait for a decision in Carpenter's Department of Labor (DOL) case. The DOL's Administrative Review Board (ARB) has had Carpenter's case pending for over a year. Carpenter has asked the ARB to dismiss his DOL case "without prejudice" so that he can seek a jury trial in the Ohio state court.
James Carpenter had worked for 12 years with Bishop Well Services Corp. when a burst hose permanently injured his back, and released toxins into the environment. Carpenter called OSHA to complain about safety at the company, and he was fired a week after OSHA conducted a surprise inspection. In defending the DOL case, the company claimed it did not fire Carpenter because of the OSHA inspection, but rather because his workers compensation case became contentious. Ohio law prohibits retaliation either for calling OSHA or for filing a workers compensation claim.
It is ironic that Judge Brown would stay the case when part of the reason for bringing the case was so we would not have to wait for the ARB. The Court of Appeals opinion says, "the delay which has been imposed in the case before Respondent, coupled with the potential length of time in reaching a resolution in the ARB case, unjustifiably interferes with Petitioner’s right to have his claim litigated." The Court added, "Although the claims in both the Common Pleas case and the federal court case may be factually interrelated, state claims can exist independent of those in federal court."
This case demonstrates the hardship for whistleblowers, and for state courts, that arise from the ARB's slow pace in issuing decisions.