Whistleblower suit against state OSHA was without merit, Court of Appeals rules

One whistleblower suit remains alive, while another was thrown out by a three-judge panel.

By DAVID SHAFFER, Star Tribune

Last update: June 9, 2009 - 8:43 PM

A state Appeals Court panel on Tuesday upheld the dismissal of a lawsuit from a former Minnesota Occupational Safety and Health Administration (OSHA) investigator who had alleged retaliation for his complaints about supervisors' handling of worker safety investigations.

Writing for a three-judge panel, Judge David Minge said that Douglas Crosby, who formerly worked in OSHA's Bemidji office, has not shown that his transfer to St. Cloud in 2006 or his subsequent denial of a raise were retaliation by supervisors. Crosby left the agency in 2008 and filed a whistleblower lawsuit that was thrown out in district court.

It is the second recent whistleblower case to come before the same judges. In March, the panel reinstated a separate suit filed by former OSHA investigator Terrance Swanson, who made similar claims about his transfer from Babbitt to Duluth in 2006. The suit had been dismissed in district court, but now can go to trial.

The state OSHA program has said the transfers were part of a longstanding effort to centralize staff, and that changes made by supervisors to investigators' electronic reports or to citations are appropriate management decisions.

Among the allegations raised by Crosby is that a supervisor illegally dropped citations against a concrete company that Crosby believed had violated worker safety laws. But the panel found that dropping the citations was a management decision and that Crosby had not identified laws or rules that were broken by it.

In addition to Minge, the appeals court judges hearing the case were Larry Stauber and Michelle Larkin.

Although the other whistleblower case remains in court, the appeals opinion in March offered a dim view of its chances. The judges said that if the same evidence were presented at trial "the record would be adequate to sustain a final decision adverse to" Swanson. Even so, there were enough factual inconsistencies to warrant a trial, the opinion said.

David Shaffer • 612-673-7090