On December 22, 2009 Merit Systems Protection Board Administrative Judge JoAnn M. Ruggiero ruled that Mr. Raymond Adams, an air traffic controller at Newark Airport, was illegally issued a reprimand by the Agency on February 22, 2008. The Judge determined that the discipline imposed on Mr. Adams was motivated by his disclosure of unsafe air traffic procedures at Newark Liberty Airport. This reprisal for whistle blowing activity is prohibited by 5 C.F.R. 2302(b)(8) and is considered a “Prohibited Personnel Practice”. The reprimand was ordered cancelled as of its effective date and per MSPB regulation 5 C.F.R. 7701(e)(1), the Judge’s initial decision became final on January 26, 2010 and is not subject to further appeal.
Judge Ruggiero’s reasoning of her decision clearly implicates Air Traffic Manager, Mr. Edward Masterson as the primary actor in the commission of the Prohibited Personnel Practice. In the Judge’s decision, she stated, inter alia, that Mr. Edward Masterson was aware of the appellant’s disclosures to Congress and the media stories regarding the unsafe procedures, and that he attended the February 2008 meeting in Representative Chris Smith’s office where the procedures were discussed. She also stated that Mr. Adams’ disclosures were “a thorn in Mr. Masterson’s side” and Mr. Masterson gave “advice” to Mr. Rushing, the appellant’s immediate supervisor that Mr. Adams would have to be “dealt with”.
Due to his extensive experience in FAA facility management, it is reasonable to believe that Mr. Masterson was well aware of the law and FAA regulation prohibiting reprisals against employees for protected disclosures. Mr. Masterson was previously the Assistant Air Traffic Manager at Philadelphia Air Traffic Control Tower and held regional management positions in FAA. It appears Mr. Masterson committed this illegal action willfully and even when put on notice that his actions constituted retaliation, he refused to reconsider.
5 C.F.R. 1221(f) dictates the action MSPB will take upon the initial decision becoming final. The relevant portion of the Statute reads:
(1) A final order or decision shall be rendered by the Board as soon as practicable after the commencement of any proceeding under this section.
(2) A decision to terminate an investigation under subchapter II may not be considered in any action or other proceeding under this section.
(3) If, based on evidence presented to it under this section, the Merit Systems Protection Board determines that there is reason to believe that a current employee may have committed a prohibited personnel practice, the Board shall refer the matter to the Special Counsel to investigate and take appropriate action under section1215. (Emphasis added)
Section 1215 dictates the procedures for the Special Counsel to follow to initiate a disciplinary action against an employee. Specifically Section 1215(a)(3) indicates the penalties that may be imposed. These penalties include removal, debarment from service for up to five (5) years, suspension, reprimand and assessment of a civil penalty not to exceed $1100.00.
According to its website www.osc.gov, “The U.S. Office of Special Counsel (OSC) is an independent federal investigative and prosecutorial agency. Our basic authorities come from four federal statutes: the Civil Service Reform Act, the Whistleblower Protection Act, the Hatch Act, and the Uniformed Services Employment & Reemployment Rights Act (USERRA).” It also states “OSC’s primary mission is to safeguard the merit system by protecting federal employee`s and applicants from prohibited personnel practices, especially reprisal for whistleblowing.” (Emphasis added)
Although the OSC has the primary responsibility for initiating disciplinary action against employees committing Prohibited Personnel Practices, the OSC may authorize the Agency to discipline the offending employee itself.
According to the FAA’s Human Resources Operating Instructions (effective July 1, 2008), Table of Penalties #40, the penalty for a first offense of committing a Prohibited Personnel Practice listed in the Personnel Management System (PMS), Introduction, Paragraph VII is a 30-day suspension to removal. In #41 of the same table, the penalty for retaliation against an alleged whistleblower is to be determined by the Office of Special Counsel. The act of retaliation against a whistleblower is a Prohibited Personnel Practice (5 CFR 2302(b)(8)).
Since the Agency (i.e. FAA) may be authorized to discipline the offending employee for the Prohibited Personnel Practice, it should immediately contact the OSC and initiate action to remove Mr. Edward Masterson from his service with the Agency. Mr. Masterson’s actions placed many thousands of lives in jeopardy and embarrassed the Agency on multiple occasions in the eyes of the Congress and the Public. He also removed Mr. Adams from the air traffic facility for over a year on administrative leave, costing the Agency over $150,000. Mr. Adams’ victory in front of the MSPB will also cost the Agency tens of thousands of dollars in attorney’s fees. Mr. Masterson should further have all bonuses and promotions gained since 2008 revoked and subsequently repaid to the Agency.
In addition to Mr. Masterson’s involvement, the Front Line Manager, Clifton Rushing was complicit in the commission of the Prohibited Personnel Practice. Mr. Rushing was the instigator of the conflicts leading up to the PPP and his actions disrupted the air traffic operation at Newark Airport on two separate occasions endangering the passengers and causing traumatic injury to Mr. Adams. Mr. Adams’ injury was confirmed by a medical professional and upheld by the Department of Labor, even over the objections of Mr. Masterson. Mr. Rushing’s actions cost the Agency tens of thousands of dollars and a great loss of productivity. The Agency has the authority to discipline Mr. Rushing for his actions. Mr. Rushing should be demoted from his position of Front Line Manager back to an Air Traffic Control Specialist and he should be reassigned to another facility. He should also have his pay reduced to its pre-promotion level. Mr. Rushing’s presence at Newark Tower continues to be an unwarranted source of tension for Mr. Adams.
In the FAA’s own Manager’s Guide to Discipline, under the heading “Provide Positive Leadership and Serve as a Role Model” it is stated that managers are held to a higher standard of behavior than the employees they supervise. It clearly reads, “Simply stated, with all things being equal, a manager would receive a greater “penalty” for his/her failure to comply with a workplace rule than a subordinate would.” For their unprofessional and illegal conduct, both of these managers should receive penalties on the high end of the suggested range.
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