Whistleblower Fights Back Against Retaliatory Jailing

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Salazar persistently challenged confirmed race and sex discrimination at DOE's Savannah River, South Carolina nuclear weapons facility. In 2002 the Merit Systems Protection Board dismissed an attempt to fire him. His efforts led to stronger EEO policies on paper, but he blew the whistle on their non-implementation, as well as a manager's alleged sexual assault of a female coworker. When DOE sought to prosecute the co-worker Salazar again spoke out. The DOE facility's chief counsel Lucy Knowles told him to stay out of it, or he would "be next." When Salazar persisted, DOE opened a retaliatory investigation.

Tired of steady harassment, Mr. Salazar reluctantly agreed to a DOE- proposed settlement agreement in which he would drop all pending EEOC and MSPB cases against the department, and the department would allow him to exhaust his leave and retire rather than losing his pension and benefits. "Unfortunately," says Kasey Dunton, author of the disclosure, "this agreement wasn't just a double-edged sword, it was a sword of Damocles." As explained more fully below, DOE inserted a birth date for Mr. Salazar in the agreement that it later charged was false, and prosecuted Mr. Salazar for signing it.

Salazar, who was born at home, has neither a birth certificate nor a reliable document indicating his birthday. DOE files inconsistently list it from 1954-1958. When Salazar signed his retirement paperwork, he asked and was reassured by DOE Human Resources staff that the 1954 birth date was correct. But without any further communications, on the same day he signed Knowles made a criminal referral to prosecute Salazar for fraud based on using a "false" birthday. Contrary to normal procedure, Knowles did not seek an Inspector General investigation first. In effect, Knowles made the criminal referral to herself. She was doing double duty with the U.S. Attorney's Office and joined the prosecution team. Salazar was ultimately found guilty of three counts fraud and sentenced to one year and one day in medium-security prison.

In the OSC whistleblowing disclosure, Mr. Salazar seeks an independent investigation of alleged DOE false statements in the agency-drafted settlement, and associated DOE abuse of authority summarized above. "If Mr. Salazar goes to jail for signing an inaccurate form," Dunton asked, "shouldn't those who drafted it and reassured him to sign it also be accountable?"

Mr. Salazar's case will be spotlighted at a Washington, D.C. based National Whistleblower Assembly sponsored by the Make It Safe Coalition. (http://makeitsafecampaign.org/) GAP Legal Director Tom Devine explained, "When agencies cannot fire whistleblowers, increasingly they try to put them in jail. Martin Salazar is a classic poster child of this ugliest reprisal tactic - scaring employees into silence by incarcerating those who speak out. Congress needs to extend whistleblower free speech rights from employment to criminal contexts as an affirmative defense against retaliatory investigations and prosecutions. Finding a champion for this reform will be one of our major goals at next week's national conference."

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