Whistleblower heard at Ninth Circuit after state OSHA fails to investigate her claims

Helen Armstrong’s personal odyssey from loyal employee to beleaguered whistleblower and cancer survivor would be harrowing at any time, but it reverberated with even greater meaning Monday morning as her attorney argued her case’s constitutional merits before the U.S. Ninth Circuit Court of Appeals.

It traveled a treacherous road to get there.

Armstrong worked nearly 23 years in human resources at the Ear Nose and Throat Associates (ENTA) medical group in Southern Nevada. In that time, her own employee file contained not a single complaint. That began to change in 2013 after Armstrong and a co-worker witnessed expired drugs being prescribed to patients and the use of contaminated syringes.

They first brought the issues to the attention of the facility’s managers. Seeing no improvement despite the obvious dangers and potential liabilities, in February 2014 they filed a complaint with the state Occupational Safety & Health Administration (OSHA) outlining what they had witnessed.

Nevada OSHA is mandated to investigate workplace hazards and investigate whistleblower complaints. Despite its placement inside the corporation-boosting Division of Business and Industry, OSHA exists to protect workers. Anonymity is granted in OSHA whistleblower complaints in an effort to prevent workplace retaliation.

Almost immediately, Armstrong and her colleague began receiving workplace demerits. OSHA inspected the medical practice and eventually cited it with four health and safety violations, but a week after the initial inspection Armstrong was demoted. She was on her way to paying a heavier price.

Within weeks her once-immaculate employee file filled with write-ups. She turned to state OSHA and filed a whistleblower complaint only to be warned that the company might discover her identity. She changed her mind but then learned that a letter notifying her of her rights as a whistleblower was sent by OSHA official Linda Pellegrini to Armstrong’s employer. OSHA officials later admitted the mistake, but the damage was done. So much for confidentiality.

She decided to refile her complaint despite being diagnosed with cancer. “At that moment,” a filing in her appeal understated, “Armstrong became entitled to reinstatement if the investigation were to reveal that retaliation occurred.”

It would have been nice to think so.

Armstrong’s job became more difficult. Her employer, “unleashed a new wave of retaliation against Armstrong,” her attorney Phillip Spector wrote in an appeal brief. “Armstrong was berated and belittled at her office. Devastated, Armstrong became emotionally distraught and physically ill. She was hospitalized for a heart procedure.”

Before being reassigned, letter-writer Pellegrini was placed in charge of the whistleblower investigation. After Armstrong was fired, the OSHA complaint was closed without anything like a thorough investigation into its merits.

The remarkably resilient Armstrong filed a lawsuit in U.S. District Court against four state employees, claiming her due process rights had been violated by state OSHA’s suspiciously inept investigation. In affidavits, OSHA investigators admitted they “were constantly obstructed” by ENTA officials “and that obstruction was assisted by Nevada Division of Business and Industry.” Further that, “Pellegrini’s objective was to immediately close the case.”

Another wrote, “To say [Armstrong] didn’t receive due process is a gross understatement.”

A federal judge disagreed, ruling that Armstrong lacked a due-process property interest as an at-will employee. But she wasn’t finished fighting.

The facts of the Armstrong case were so egregious that they came to the attention of attorney John Tye, the former State Department official and federal whistleblower who in 2017 created the nonprofit law firm Whistleblower Aid. In tandem with attorneys Spector and Noah Messing, Tye’s firm is handling Armstrong’s appeal on a pro bono basis.

“If they’d done nothing, it would have been better than what they did,” Tye said in an interview. “They were literally conspiring with the doctors on how to squelch the investigation. … And not only did they not actually help her, but they were literally working against her, literally harming Helen in their conspiracy with the doctors. So, Helen probably would have been better off if OSHA hadn’t even existed. The only way the doctors learned that Helen was the whistleblower is because OSHA sent them a letter telling them.”

Spector, arguing via livestream, appeared to make an impression on the three-judge panel. OSHA’s botched investigation and its cozy proximity to a business it ought to have been scrutinizing was impossible to deny – even in an at-will state.

“The key issue in this case is that filing that complaint made her life much, much worse,” he said. “Nevada state officials proceeded to mishandle, obstruct, and ultimately shut down her whistleblower complaint. Among other steps they wrongly informed her doctors about her complaint … colluded with her employer, and ordered her complaint to be closed without any investigation at all. One of the lead investigators on the case resigned in disgust over what he saw transpire.”

Damning affidavits of OSHA officials notwithstanding, the attorney general’s office argued through Deputy Solicitor General Jeffrey Conner that the medical company “identified” reasons for terminating Armstrong, and despite the lack of a thorough whistleblower investigation, claimed in court filings that the case was “ordered to be closed in light of the conclusion that ENTA had not retaliated against Armstrong.” It’s a bold statement given the conflicting evidence provided by outraged current and former state employees.

On Monday, the state’s argument eroded under the weight of ugly facts. Conner was compelled to acknowledge that it was “right to say [Armstrong] only has a limited due process property interest,” and by the end of the hearing admitted, “This may be something that does need to be remanded to the District Court for further factual analysis.”

From the sound of things, Judge Marsha Berzon thinks that’s a fine idea.

After more than 30 minutes of listening to the lawyers and her Ninth Circuit colleagues, she concluded, “I’ve got an even simpler disposition, which is we now have the agreement of the government that the District Court was wrong to say that she had absolutely no due process right here. Why don’t we just say that?”

That’s an undeniable ray of hope for Helen Armstrong. Thanks to her, we’ve been able to peek behind state OSHA’s tattered curtain of credibility.

If Armstrong’s whistleblower case with its audacious admissions of OSHA ineptitude and insider dealings fails to receive its day in a proper court, what chance does any harassed Nevada worker have of finding justice?

John L. Smith is an author and longtime columnist. He was born in Henderson and his family’s Nevada roots go back to 1881. His stories have appeared in Time, Readers Digest, The Daily Beast, Reuters, Ruralite and Desert Companion, among others. He also offers weekly commentary on Nevada Public Radio station KNPR. His newest book—a biography of iconic Nevada civil rights and political leader, Joe Neal— “Westside Slugger: Joe Neal’s Lifelong Fight for Social Justice” is published by University of Nevada Press and is available at Amazon.com. He is also the author of a new book, "Saints, Sinners, and Sovereign Citizens: The Endless War Over the West’s Public Lands.On Twitter: @jlnevadasmith.