U.S. OFFICE OF SPECIAL COUNSEL WINS CORRECTIVE AND DISCIPLINARY ACTION IN INS WHISTLEBLOWER CASE

FOR IMMEDIATE RELEASE - 4/8/99
CONTACT: JANE MCFARLAND
(202) 653-7984      

    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 disciplinary action. 

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