U.S. OFFICE OF SPECIAL COUNSEL WINS CORRECTIVE AND
DISCIPLINARY ACTION IN INS WHISTLEBLOWER CASE
FOR IMMEDIATE RELEASE - 4/8/99
CONTACT: JANE MCFARLAND
The U.S. Office of Special Counsel (OSC) today
announced that, on April 5, 1999, the Merit Systems Protection Board (MSPB)
affirmed its Chief Administrative Law Judge’s decision that the
Immigration and Naturalization Service (INS) violated the Whistleblower
Protection Act (WPA) when it engaged in various acts of retaliation against
Elaine Aikens, an INS employee, because she had made protected disclosures.
The Board’s ruling granted OSC’s petition for corrective action on Ms.
Aiken’s behalf, as well as its petition for disciplinary action against
the two supervisors whom OSC charged had retaliated against her.
Ms. Aikens, the administrative officer in the Rome,
Italy, district office of the INS, made protected disclosures in 1991 when
she notified INS Headquarters that the Rome district office was violating
personnel regulations as well as rules concerning the use of government
vehicles. Ms. Aikens also made protected disclosures in 1992, when she
revealed during an EEO seminar held for employees of the American Embassy
that she had been a victim of sexual harassment while employed by INS in a
previous position and when she made additional disclosures about vehicle
misuse to her supervisor.
Ms. Aikens filed a complaint with OSC in 1993, claiming
that after she made these disclosures, then INS Rome district director
Benedict Ferro and deputy district director Gerard Heinauer, retaliated
against her by denying her previously approved home leave, seeking to
curtail a previously approved extension of her tour of duty in Rome,
removing her administrative officer duties, detailing her to clerical
duties, and including negative statements in her performance appraisal. OSC
investigated Ms. Aikens’ complaints, and, in 1994, filed petitions for
corrective and disciplinary action with the MSPB.
In December of 1997, the CALJ issued a lengthy decision
agreeing with OSC that Ferro and Heinauer had violated Ms. Aiken’s rights
under the Whistleblower Protection Act. As relief for Ms. Aikens, he ordered
INS to restore her leave and reimburse the expenses associated with the
wrongful denial of her home leave. He further directed INS to demote Ferro
and Heinauer to positions one grade below their present positions for at
least one year.
Special Counsel Elaine Kaplan stated that OSC was pleased
with the Board’s affirmance of both the corrective and disciplinary
remedies ordered by the CALJ. “The Board’s decision,” she said,
“should send a strong message to federal managers that there is a price to
be paid for retaliating against whistleblowers.” Ms. Kaplan also observed
that “this case was a particularly difficult one for the complainant, Ms.
Aikens, because the litigation was lengthy and often marked by spurious
personal attacks.” She commended Ms. Aikens “for her courage in making
the disclosures, her cooperation with OSC in litigating the case, and her
patience in seeing it through to the end.”
The Office of Special Counsel protects federal employees
from reprisal for protected whistleblowing and other prohibited personnel
practices. OSC receives and investigates allegations of prohibited personnel
practices, and when warranted, petitions the Board for corrective and