"GUEST BLOG: A FAILURE OF ACCOUNTABILITY: Wells Fargo Fraud Goes Unanswered As Washington Dithers" By Darrell Whitman (BrokeAndBroker.com Blog, September 5, 2017)Darrell Whitman Petitions Attorney General Sessions About Wells Fargo Investigation" (BrokeAndBroker.com Blog, August 7, 2017).
About the ProgramOSHA's Whistleblower Protection Program enforces the whistleblower provisions of more than twenty whistleblower statutes protecting employees who report violations of various workplace safety and health, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. Rights afforded by these whistleblower protection laws include, but are not limited to, worker participation in safety and health activities, reporting a work-related injury, illness or fatality, or reporting a violation of the statutes herein.Workplace Safety and HealthSection 11(c) of the OSH Act prohibits employers from discriminating against their employees for exercising their rights under the OSH Act. These rights include filing an OSHA complaint, participating in an inspection or talking to an inspector, seeking access to employer exposure and injury records, reporting an injury, and raising a safety or health complaint with the employer. If workers have been retaliated or discriminated against for exercising their rights, they must file a complaint with OSHA within 30 days of the alleged adverse action.Since passage of the OSH Act in 1970, Congress has expanded OSHA's whistleblower authority to protect workers from discrimination under twenty-two federal laws. Complaints must be reported to OSHA within set timeframes following the discriminatory action, as prescribed by each law. These laws, and the number of days employees have to file a complaint, are:
- Occupational, Environmental, and Nuclear Safety Laws
- Transportation Industry Laws
- Consumer and Investor Protection Laws
SOX whistleblower claims are governed by "a burden-shifting procedure [under] which a plaintiff is first required to make out a prima facie case of retaliatory discrimination." Van Asdale v. Int'l Game Tech., 577 F.3d 989, 996 (9th Cir. 2009). "[I]f the plaintiff meets this burden, the employer [then] assumes the burden of demonstrating by clear and convincing evidence that it would have taken the same adverse employment action in the absence of the plaintiff's protected activity." Id. Because we find Wells Fargo met its burden in showing it would have taken the same adverse employment action, we need not reach the question of whether Guitron made out a prima facie case.Wells Fargo presented clear and convincing evidence that Guitron (1) failed to meet her quarterly sales goals, (2) had been insubordinate to her direct manager, and (3) refused to return to work after Wells Fargo repeatedly informed her that she had only been placed on administrative leave and not fired. This evidence demonstrates that, even without Guitron's protected activity, Wells Fargo would have issued her verbal and informal warnings, placed her on administrative leave, and terminated her, respectively. See Halloum v. Intel Corp., 24-IER-50, 2006 WL 618383, Final Decision and Order (Dep't of Labor SAROX Jan. 31, 2006), aff'd, 307 F. App'x 106, 107 (9th Cir. 2009); Kim v. Boeing Co., No. C10-1850-RSM, 2011 WL 4437086 (W.D. WA. Sept. 23, 2011), aff'd, 487 F. App'x 356, 357-58 (9th Cir. 2012). Guitron has failed to create a genuine issue of material fact with respect to the facts surrounding her warnings, administrative leave, and subsequent termination. Therefore, we affirm the district court's summary dismissal of Guitron's SOX claim.
SIDE BAR: Watch April 27, 2017, speeches by Guitron and Burris about their whistleblowing efforts:
DARRELL WHITMANOakland, CA 94611Email: email@example.comAugust 4, 2017Jeff Sessions, Attorney General of the United StatesU.S. Department of Justice950 Pennsylvania Avenue, NWWashington, DC 20530-0001Re: Wells Fargo consumer financial fraud casesDear Attorney General Sessions,The purpose of my letter and declaration below is to alert you to a very serious failing of government to protect the public interest, and ask that you not abandon the Department of Justice (DoJ)'s effort to protect the public interest by holding federal agencies and corporate defendants to account when they threaten the nation's safety, health, and financial security. The public's faith in government is at a historic low, and as a former federal investigator I too have lost faith in the ability of government to produce equal justice under law. Please prove us all wrong.Recently, I was advised the DoJ is concluding its investigation of Wells Fargo consumerfinancial fraud cases without taking action. As a federal investigator involved in three ofthose cases, there was every reason to believe the DoJ and its Grand Jury would findreason to pursue not only the investigation of Wells Fargo, but to expand thatinvestigation to include the Occupational Safety and Health Administration (OSHA),whose Whistleblower Protection Program (WBPP) played a significant role in concealingthat fraud for several years. For reasons cited below, I strongly urge the DOJ toreconsider and reopen the investigation and look more broadly at the critical role federal agencies played in enabling the fraud to continue for years and engulf millions of Wells Fargo customers, and thousands of Wells Fargo employees.Please consider the remainder of this letter as a Declaration under penalty of perjury,attesting the following statements are true and correct to the best of my memory andbelief:From July 17, 2010, to May 5, 2015, I was a Regional Investigator with the Department of Labor/Occupational Safety and Health Administration's Whistleblower Protection Program, I worked in OSHA's Region IX office in San Francisco, and have direct, personal knowledge of OSHA's management of three Wells Fargo consumer fraud complaints filed in 2010 and 2011. These three complaints, filed by Ms. Yesina Guitron, Ms. Judy Klosek, and Ms. Claudia Ponce de Leon, all alleged Wells Fargo wasgenerating fraudulent customer accounts. At the time I was given the first two WellsFargo accounts in November 2010, OSHA had not provided me any training in theinvestigation of financial fraud cases filed under whistleblower provisions of theSarbanes-Oxley Act (SOX). These investigations required knowledge I didn't have at the time, and I only later discovered the multiple violations of law, policy, and practice by OSHA they represented. As noted below, these included:
The mismanagement of these two Wells Fargo complaints in 2010 was not an isolatedincident. Rather, the pattern of failing to timely assign investigators, interviewcomplainants, and apply statutory time limits to company responses and completinginvestigations repeated itself in many other cases, including a subsequent Wells Fargocase (Ponce de Leon), which I briefly managed in early 2012. In many cases, OSHAeither failed to interview complainants, or failed to conduct credible investigations. Insome cases, OSHA slow walked investigations for years, apparently for the purpose ofdenying a merit finding. In others, OSHA encouraged to investigators to short-circuitinvestigations and close cases for the purpose of improving OSHA's statistics. Then,during a 2014 staff meeting, the Region IX RSI advised investigators entire classes ofcomplaints should be closed without investigations, including SOX complaints, becauseOSHAs national Office of Whistleblower Protection, wanted to clear a backlog of cases.All of these actions and failures to act involved violations of law, rules, and regulations,which OSHA apparently doesn't feel itself bound.This pattern of OSHA mismanagement extends well beyond SOX cases to include othercases involving major corporations and complaints where preliminary reinstatement ofqualifying whistleblowers is at issue. These cases raise concerns about a broad spectrum of safety, health, and financial security involving: trucking (Surface Transportation Assistance Act), railroads (Federal Railroad Safety Act), sea transport (Seaman's Protection Act), air carriers (Wendell H. Ford Aviation Investment and Reform Act for the 21st Century), pipeline safety and security (Pipeline Safety Improvement Act), transit systems (National Transit Systems Security Act), consumer product safety (Consumer Product Safety Improvement Act), health care (Affordable Care Act), consumer financial protection (Consumer Financial Protection Act of 2010), consumer investment protection (Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010), and food safety (FDA Food Safety Modernization Act). Failing to respect the requirements of the law under any one statute presents a serious risk to the public interest. Failing to respect the law under thirteen statutes covering a full range of safety and health issues is potentially catastrophic.It's unconscionable that senior Agency bureaucrats are allowed to effectively legislateaway protection for whistleblowers and the public. Ms. Guitron's request to OSHA toreopen her investigation was denied earlier this year, and hundreds, if not thousands of other Wells Fargo employees who attempted to find justice through OSHA'sWhistleblower Protection Program have been betrayed by indifference, if not outrighthostility to their claims by OSHA managers. This is a denial of fundamental due processand equal justice under law, and should not be allowed to stand.In January 2015, I made a formal disclosure of these problems to the Office of SpecialCounsel (OSC), which has to date failed to investigate. In April 2016, after beingterminated from OSHA in the context of publicly disclosing a culture of corruption inOSHA's management of the WBPP, I filed a complaint with the OSC, which to date theOSC has similarly failed to address. Thus, it appears that the culture of corruption which I first saw in OSHA extends to the OSC, leaving federal whistleblowers no better off than the private sector whistleblowers who receive no protection by OSHA. We cannot have a credible system for protecting the nation's safety, health, and financial security without having a credible system to protect those who report risks, mismanagement and abuse of authority. As the chief law enforcement officer, only you and the DoJ can do that.Respectfully,Darrell Whitman, (former) Regional InvestigatorAugust 4, 2017
On balance, Mr. Whitman's case has been pending for three years, during which he has steadily developed an overwhelming record. The Agency has explained it will not respond to mediation efforts until there is OSC action. Mr. Whitman should not be required to pursue his rights by starting over at the MSPB with an Individual Right of Action. Due to his dire medical condition and the agency's leadership transition, now is the time for the Special Counsel to act with a clear message to restore the integrity of the Labor Department's whistleblower program. Mr. Whitman request the opportunity for counsel to brief the Special Counsel on this request.
This matrix is based on the documents provided to the OSC, with the primary document being the Declaration provided with the April 2016 Amended Complaint. This Declaration has been supplemented with additional documents, including a group of affidavits and statements from witnesses, as noted below. This matrix is not intended as an exhaustive framework for the conduct of a fully-qualified and thorough investigation. Rather it represents an initial framework that should be expanded through the addition of depositions and document discovery. All witness and parties cited here should be subsequently deposed to obtain a full account of their testimony.
Additionally, the narrative reflected in this matrix is also only a starting point to uncovering the full story reflected in the events this matrix documents. It should be understood that I could gather and report only those facts discovered by me from the time I first began my duties with the Agency in July 2010 to the time of drafting this matrix. Each event represents a node connecting to other events and actors, and exploring these nodes should construct a more complete understanding of how and why these events occurred.