BK Blog Post
Posted by Tom Devine.
Tom Devine is legal director of the Government Accountability Project, where he has worked to assist thousands of whistleblowers to come forward and has been involved in the all of the campaigns to pass or defend major whistleblower laws over the last two decades.
This week marks the fifth anniversary of the passing of Dr. Dean Wyatt, a former Government Accountability Project (GAP) client who blew the whistle on violations of humane handling and food safety regulations in Oklahoma and Vermont slaughter plants. His story is an important one to tell because it illustrates the trap that federal whistleblowers found themselves in before strong legal safeguards were put in place to protect them. Dr. Wyatt didn’t reap the benefits of the Whistleblower Protection Enhancement Act (passed in 2012) but he nonetheless helped pave the way for the likes of Jim Schrier and other truth-tellers who followed in his footsteps.
Retaliation Without Recourse Pre-WPEA
At the time of his disclosures, Dr. Wyatt was a longtime veteran of the U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS). He had served the agency as a public health veterinarian for nearly 20 years.
Dr. Wyatt reported numerous unlawful acts while performing his duties as a veterinarian, including the shackling and bleeding out of conscious pigs, allowing livestock to be trampled and killed while unloaded from trucks, and general animal cruelty.
Per agency practice, he reported these gross violations to the FSIS District Office. Rather than investigate his reports and praise him for diligently performing his responsibilities, however, his superiors ignored his allegations and instructed him to essentially stop meddling in the plants’ affairs. Dr. Wyatt was repeatedly retaliated against for his disclosures and subjected to an unwelcome and hostile work environment. Despite his many years of impeccable work performance, the agency ordered Dr. Wyatt to attend remedial training classes, a humiliating prospect which damaged his professional reputation.
Despite the ultimate vindication of Dr. Wyatt’s disclosures due to the release of an undercover video documenting the many disturbing abuses, Dr. Wyatt had no legal recourse against the agency’s bullying and retaliation. While the Whistleblower Protection Act (WPA) existed to protect federal employees from whistleblower retaliation, courts had carved out an exception for employees who were retaliated against for disclosures made during the course of performing their regular job duties.
Despite legislative history to the contrary, courts determined that the WPA was not designed to protect the “quintessential” employee, and that whistleblowers were only those who went “above and beyond the call of duty.” The United States Supreme Court decision in Garcetti v. Ceballos, 547 U.S. 410 (2006) upheld these decisions, reasoning that the First Amendment did not protect a government employee from discipline based on speech in these circumstances. In other words, employees targeted for doing their job too well and requesting that agencies rise to their same standard were without legal protection.
A Brighter Future for Whistleblowers
Fortunately, Congress saw the problem with excluding such employees from protection and passed the WPEA in 2012. It amended the WPA to strengthen federal employee whistleblowers’ rights and in doing so undid years of damage wrought by hostile forums responsible for its enforcement. Congress expressly rejected the so called “Job Duties Doctrine” in the new legislation. This seemingly small change has revolutionized the whistleblowing stage for truth-tellers in the food industry.
In the past, whistleblowers and truth-tellers like Dr. Wyatt have approached GAP’s Food Integrity Campaign (FIC) about helping them end overwhelming and burdensome retaliation. Tragically, our hands were tied because their disclosures had been made during the course of their job performance and thus were not protected. Now, thanks to the WPEA, FIC can offer similarly situated whistleblowers legal support.
Jim Schrier is one example of several USDA meat inspectors that FIC has been able to support thanks to the change in whistleblower law. Mr. Schrier risked his professional career when he exposed the inhumane handling of pigs at a Tyson Foods slaughter plant in Columbus Junction, Iowa. He thought he was doing his job when he brought these concerns to his supervisor, but instead of enforcing the regulations, management retaliated. They transferred him to a slaughterhouse more than 120 miles away from his home in an effort to silence his criticisms. But with FIC’s help, Mr. Schrier filed a whistleblower complaint and his disturbing revelations made headlines. Ultimately, FSIS agreed to move him to a plant close to his family.
FSIS employees like Dean Wyatt and Jim Schrier deserve the right to speak out about unlawful or unsafe practices in slaughterhouses and processing plants. Their humane handling and food safety disclosures exposed important abuses in our food system. Unfortunately, all too often, food safety takes a backseat to profit, and employees who stay silent are rewarded while those who voice concerns are penalized. To protect their bottom line, plants routinely and without basis label these whistleblowers as “hostile,” “harassing,” and “intimidating,” and demand that FSIS remove them from the plant.
Whereas before WPEA, FSIS management and slaughterhouse plants could intimidate and harass diligent employees who reported wrongdoing without check, the amendments to the Act prohibit this type of behavior. We can only hope that this legislation – in combination with targeted legal action – will pave the way for future truth-tellers to better hold government agencies and corporations accountable.
Sarah Nash is Counsel for the Food Integrity Campaign, a program of the Government Accountability Project – the nation’s leading whistleblower protection and advocacy organization.