Sit. Stay. Good Employee.

This Bad Boss Forced a Whistleblower to Sit in a Lobby for Months

Does your manager assign too much work? Troy Miller had the opposite problem: For seven months his boss made him sit on a sofa all day, twiddling his thumbs as puzzled colleagues walked by.

As a superintendent at a federal prison in Beaumont, Texas, Mr. Miller had overseen the facility’s manufacture of helmets for military use in Afghanistan and Iraq. After investigators began probing the troubled operation, Mr. Miller made his own report of shoddy practices — and urged that production be halted so that no unsafe helmets would go to U.S. troops.

The reaction of his boss, prison warden Jody Upton? He took away Mr. Miller’s computer access, his keys, and his job duties — all to prevent Mr. Miller from obstructing the ongoing investigation, he said. Then the warden gave Mr. Miller, who was not charged with a crime, a series of jobs that were clearly below his pay grade, including wiping tables and shredding paper.

After more than 18 months of these make-work assignments, Warden Upton finally told Mr. Miller to park himself in the lobby of an administrative building — supposedly to cut off communication with the inmates he had overseen.

“I had no duties” besides sitting on a sofa, recalled Mr. Miller in a hearing. A fellow employee said the high-profile exile marked Mr. Miller as “a leper.”

Warden Jody Upton is our new Bad Boss of the Month.

Mr. Miller complained to the government’s Merit Systems Protection Board about the actions of Warden Upton and other bosses. Although an administrative judge called Mr. Miller’s treatment “demoralizing … and extremely inefficient, even wasteful,” the MSPB noted that Warden Upton said he acted at the behest of the U.S. Department of Justice’s Office of the Inspector General (OIG), which was looking into improprieties at Beaumont — including possible wrongdoing by Mr. Miller.

As a result, said the MSPB, Mr. Miller’s do-nothing assignments didn’t qualify as illegal punishment.

In December 2016, a federal appeals court reversed the MSPB and vindicated Mr. Miller, saying that Warden Upton’s story lacked corroboration and, even if true, “affords only minimal support” for the treatment endured by Mr. Miller. It ordered the MSPB to determine a proper remedy for Mr. Miller — although that’s now on hold, as the Justice Department requests a rehearing.

Mr. Miller’s demotion to couch potato was an unlikely outcome for the former U.S. Marine and two-decade veteran of the Federal Bureau of Prisons: Even after the fact, Warden Upton acknowledged him to be a “fantastic” employee — “confident, organized … very on top of things.” His performance rating before the conflict was “Outstanding.”

The trouble started in 2009, about two years after Mr. Miller became a superintendent at Beaumont. The inmate-staffed helmet factory had swung from an $8 million profit to a loss, a change that Mr. Miller blamed on underbilling and mismanagement by Federal Prison Industries, the government-owned corporation that contracts for prison labor and is commonly known as UNICOR.

About two months before he asked for a production halt, Mr. Miller had reported UNICOR’s financial troubles to Warden Upton and others. Now he shifted his focus to safety: He had discovered, he said, that defective Kevlar was being used to make helmets. He suspected “sabotage” on the line.

“The lives of U.S. Marines are more important than anything else,” he wrote in an e-mail to Warden Upton.

Mr. Miller made his discovery the morning after OIG investigators had visited Beaumont; the previous day, he had been ordered not to report to the helmet factory during the visit. According to Warden Upton, the burgeoning OIG probe — which ultimately would lead to the factory’s closing and a $3 million civil settlement — started with a tip from a line manager who had been reported by Mr. Miller for sexual misconduct.

Immediately after hearing Mr. Miller’s helmet-safety concerns, Warden Upton decided to shift him out of the factory, triggering a succession of make-work jobs. The warden was motivated, he said, by a request from an OIG official whom he never named — not by Mr. Miller’s safety warning.

Warden Upton would later learn, he testified, that OIG was considering criminal charges against Mr. Miller and wanted him to be completely isolated from inmates. The warden never cited a specific source for that information, either.

Mr. Miller was never charged criminally, and a civil complaint that named him was dismissed. While the MSPB believed that Warden Upton had acted validly given OIG’s suspicions, the appeals court disagreed: It characterized Mr. Miller as “a valued executive, whose expertise and attention to detail made his product line one of the most successful in the [prison bureau].”

The bottom line for the appeals court: Warden Upton’s unsupported testimony, by itself, couldn’t be the “clear and convincing” evidence that’s required to disprove apparent retaliation under the Whistleblower Protection Act.

“Mr. Miller was repeatedly reassigned,” the court observed, “… and for each step, the Government did not present a single email, memorandum, or personnel action form …. Common sense tells us that these … are the types of personnel actions for which papers would normally attach.”

For his part, Mr. Miller claimed that Warden Upton was moved to retaliate because a potential shutdown would harm the Beaumont prison and deprive inmates of employment. And indeed, the warden himself testified that discipline would be a greater challenge without the factory routine, a fact that caused him “some angst.”

Regardless of the reason, recalled Mr. Miller, “I was done. I’ve never been back in that factory.”

What followed was a downward spiral of job duties. Warden Upton first sent Mr. Miller to oversee inmates as they took meals. But that didn’t last long because, according to the warden, OIG didn’t want Mr. Miller talking to inmates.

Later Mr. Miller was assigned to monitor inmates’ recorded phone calls — until that, too, was nixed by OIG. Mr. Miller did a stint in the prison’s personnel office, where he did “clerical kinds of things, you know, shredding,” explained Warden Upton.

“Is that a waste of his talents?” the warden was asked at a hearing.

“Absolutely,” answered Warden Upton.

Most wasteful, however, was what the MSPB administrative judge called Mr. Miller’s “demoralizing sojourn on the lobby sofa,” which started in 2011. As the couch-sitting wore on, the prison’s safety officer began to worry about the superintendent’s mental state, because virtually no one interacted with him: “He was just kind of like a fixture in the lobby,” he testified.

In the meantime, Warden Upton moved on to a new job in Oklahoma and the helmet factory shut down permanently. Mr. Miller was rescued from the lobby and named as Camp Administrator, then Management Analyst. Although he got an office, the titles meant little: At the end of 2012 the OIG was still investigating and Mr. Miller was pressure-washing the administrative building.

Soon afterward Mr. Miller filed his petition to the MSPB, alleging violations of the Whistleblower Protection Act — a statute that protects federal employees from retaliation for blowing the whistle on fraud, waste, and abuse.

In August 2016, a few months before Mr. Miller’s win at the U.S. Court of Appeals for the Federal Circuit, the OIG finally announced the results of its long-running investigation. The shuttered Beaumont facility had “endemic manufacturing problems” and produced helmets with “numerous defects,” it said. UNICOR staff cheated on inspections, and falsified documents in order to sell rejected helmets to the U.S. military. Mr. Miller was not mentioned.

The OIG said it had no evidence that the faulty helmets caused any deaths or injuries — but the government ended up recalling more than 126,000 units at a cost of more than $19 million.

Earlier in 2016, ArmorSource LLC, an Ohio-based defense contractor that had engaged UNICOR to make helmets at Beaumont, agreed to pay $3 million to settle charges that it had defrauded the government. Part of that settlement will go to the whistleblower who originally accused Mr. Miller of wrongdoing.

» Read the opinion of the Fed Circuit

» Read the Justice Department’s petition for rehearing

The Employment Law Group® law firm was not involved in Miller v. Department of Justice. We select “Bad Boss” cases to illustrate the continuing relevance of employee protection laws for our newsletter’s audience, which includes attorneys and former TELG clients.

During this case, Troy Miller was represented by Dennis L. Friedman, of Philadelphia; and by David L. Wilson, of Stigler, Okla.