U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Salvatore Giove v. Department of Transportation, No. 99-3159 (Fed. Cir., October 31, 2000).

The Federal Circuit upheld an arbitrator's decision on the two arguments presented: (1) the employee lacked a reasonable belief that he had knowledge of a violation of law, rule, regulation, etc., sufficient to invoke the Whistleblower Protection Act; and (2) the employee had no right to union representation during an agency interview because the investigation was in a preliminary or background stage and the agency lacked a individualized suspicion that the employee engaged in misconduct warranting disciplinary action.

Mr. Giove was employed by the Federal Aviation Administration as an air traffic controller at the Grand Junction, Colorado airport. Several months after a plane crash in October 1992, the appellant anonymously contacted a law firm involved in litigation concerning the accident. Four and half years later, the appellant contacted a second law firm with the same information, regarding a "Notice to Airmen" (NOTAM) that the appellant did not understand or know if it had expired. At the same time, the appellant contacted the airplane manufacturer, anonymously claiming the FAA was covering up its error by destroying the NOTAM. The second law firm moved for a new trial, requesting further discovery. Upon further discovery, the NOTAM was determined not to be a relevant factor and had not been improperly destroyed, having expired prior to the crash.

Due to the enlarged discovery, the FAA realized information from within the agency was being supplied. The agency began its own investigation to verify the accuracy of the allegations. The appellant was interviewed in an informal way at the beginning of the investigations, where the appellant denied being the information source. The second law firm also deposed the appellant along with his fellow air traffic controllers. After being told of his right to counsel, the appellant told the truth as to being the information source. The FAA removed the appellant for intentional falsification of a material fact, disclosing information without going through the proper channels, and other charges. The appellant filed a grievance, claiming protection as a whistleblower for his disclosures. The arbitrator found the appellant had no reasonable belief that the information he disclosed was true. The appellant appealed to the Federal Circuit.

The court gave deference to the arbitrator's decision but carefully reviewed the whistleblower claim and as well as his claim that he was denied the right to union representation during the investigation. The court found the arbitrator applied the proper objective standard, whether the belief is reasonable, to the appellant's whistleblowing defense. Based on the given facts, the court found the arbitrator properly found appellant's belief in a cover-up was without a basis. The appellant had no idea what the "NOTAM" message was or meant and did not know exactly what his manager had done with the "NOTAM" message after removing it from the computer console.

As to appellant's claim that he was denied his right to union representation during the investigation under Article 6 of the agency collective bargaining agreement (CBA), the arbitrator properly found the appellant was not entitled to representation during the initial investigation because of the informal nature and lack of an individualized suspicion towards him. The court stated that Article 6 reflected a balance between the right of the agency to conduct unhindered investigations and the right of the employee to be notified in advance of possible disciplinary action, giving the employee time to obtain representation. The court held the trigger for Article 6 to be "only when the investigation has moved to the stage where: (1) employee misconduct subject to possible disciplinary action has been discovered; and (2), the employee being questioned . . . is [suspected] of engaging in the misconduct."

The court found that the appellant was not being specifically investigated nor was there an individualized suspicion towards the appellant. The court stated the arbitrator's decision was fully supported by "substantial evidence" so Article 6 had not been triggered in favor of the appellant. The court affirmed the arbitrator's decision.