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The Employment Law Group® Law Firm Establishes Precedent in Sarbanes-Oxley Whistleblower Retaliation Dispute


The Employment Law Group® law firm client Mary Garey prevailed in a dispute with her former employer Best Buy in a dispute over whether Ms. Garey is entitled to pursue her claim in federal court.   Ms. Garey, former senior vice president for Best Buy, filed an OSHA complaint alleging that Best Buy retaliated against her by terminating her employment because she attempted to disclose to senior Best buy executives apparent fraud resulting in millions of dollars of losses that were unreported or inaccurately reported to shareholders.

After OSHA completed its investigations, Ms. Garey removed her claim to federal court and Best Buy moved to dismiss.  Judge Jordan held that OSHA’s decision is of no precedential value, and that she is entitled to pursue her claim de novo in federal court.

Federal Circuit Reverses MSPB Dismissal under the Whistleblower Protection Act

In Kahn v. Dept. of Justice, the Federal Circuit held that the Merit Systems Protection Board (“MSPB”) erred in dismissing Kahn’s individual right of action (“IRA”) appeal under the Whistleblower Protection Act (“WPA”).  In his IRA appeal, Kahn, a special agent for the Drug Enforcement Agency (DEA), alleged that he was retaliated against after he made disclosures to his superiors about another agent’s alleged violations of DEA rules and regulations.  

The MSPB held that Kahn’s reporting of Agent Annis’ activities were not protected under the Whistleblower Protection Act because the disclosures were made as part of his normal duties as a special agent.  The Federal Circuit reversed, concluding that there was an issue of material fact as to whether Kahn’s disclosure was a part of his normal duties given Kahn’s job description and competing sworn statements from him and his supervisor.  Finding that Kahn presented non-frivolous allegations that his disclosures were outside of the scope of his normal duties, the Federal Circuit remanded the case to the MSPB.