Proving motive in whistleblower cases.

Whistleblower laws protect employees who stop, report, or testify about employer actions that are illegal, unhealthy, or violations of specific public policies. The purpose of these laws is to encourage employees to engage in the "protected activity" of whistleblowing.

Employees who believe they have suffered retaliation for blowing the whistle on their employers may be able to seek relief under specific federal or state whistleblower protection statutes or under traditional tort or contract theories for damages. Regardless of whether their cause of action is based on state law, the First Amendment, or federal protection statutes, whistleblowers must prove they were subjected to adverse action because they blew the whistle. In other words, they must prove that the employer had discriminatory intent or a retaliatory policy.

As in other employment cases, either direct or circumstantial evidence can be used to prove intent. Although direct evidence can be extremely persuasive, case law establishes that circumstantial evidence alone can prove retaliatory motive, even where there is a perceived lack of it. (1)

Most courts recognize that direct evidence of intent is hard to find: "Rarely can plaintiffs obtain documents or testimony wherein an employer specifically proclaims his or her desire to retaliate against an employee for engaging in protected speech." (2) Consequently, courts have relied on a wide spectrum of evidence to find retaliatory motive, including:

* disciplinary action taken shortly after the employee engaged in protected activity

* the timing of events, especially temporal proximity between management's learning of protected conduct and an adverse action

* managerial statements to employees that whistleblowing is wrong

* managerial accusations that an employee is a troublemaker or disloyal because he or she blew the whistle

* positive performance reviews or merit pay increases for a whistleblower shortly before he or she is fired

* firing in a way that deviates from routine procedure

* disparate treatment or uneven enforcement of a rule

* changes in management attitude toward an employee who blew the whistle

* conflicting reasons given for disciplinary action

* employer dishonesty regarding a material fact. (3)

Proof that an employer's reasons for the adverse action are false or not believable can also bolster evidence of discriminatory intent. In Reeves v. Sanderson Plumbing, the U.S. Supreme Court explained that a worker's proof that an employer's justification for adverse action was "unworthy of credence" is probative circumstantial evidence of intentional discrimination. Likewise, proof that an employer provided a false justification for an adverse action is strong circumstantial evidence of a "discriminatory purpose." (4)

Establishing proof of the various and often complex facts that may be relevant to proving intent often requires extensive discovery. Because courts have recognized the difficulty of finding "smoking gun" evidence of discriminatory motive, they usually permit broad discovery into issues related to intent. (5)

Chain of command

What happens when an employee is fired after reporting misconduct directly to a government authority without first giving an employer an opportunity to address the problem? In some states, like New York and Ohio, a plaintiff seeking to recover for retaliation under a state whistleblower statute must show that he or she first tried to alert the employer. (6)

However, under federal law there is no such requirement. (7) The U.S. Department of Labor, which has jurisdiction over many whistleblower laws--including those covering airline and surface transportation safety, environmental protection, and nuclear safety--Thus analyzed several cases in which employees have bypassed the chain of command. The department has unequivocally held that doing so in order to blow the whistle on safety problems constitutes protected activity. (8)

Often, at deposition, a manager or supervisor will admit being disappointed or angered because an employee reported a potential problem to authorities without first informing him or her. If the disclosure was protected under federal law, this critical admission can help a whistleblower demonstrate animus by direct evidence. (9) Standing alone, the admission can be sufficient to establish motive. (10)

In a case brought under the employee protection provision of the Toxic Substances Control Act, (11) the labor secretary adopted the following rule: "An employer may not, with impunity, discipline an employee for failing to follow the chain of command, failing to conform to established channels, or circumventing a superior, when the employee raises an environmental health or safety issue." (12)

Requiring an employee to report misconduct first to a supervisor may appear logical. However, such a requirement ignores the intent of whistleblower laws and undermines legitimate whistleblowing.

For example, many whistleblowers want to remain anonymous, which is impossible if employees are forced to make internal disclosures to the employer. By raising concerns with management, the employee inadvertently marks himself or herself as the source of a future allegation to a law enforcement authority.

More serious, however, is the conflict between the federal obstruction-of-justice statute and some states' requirements that allegations of illegal conduct be reported first to an employer. Under federal law, it is a criminal obstruction of justice for any person to "hinder" or "delay" the reporting of any "possible commission of a federal offense" to a law enforcement officer. (13)

Truth and consequences

An employee's action must be a legally recognized protected activity to qualify for whistleblower protection. Under federal law and in almost all states that recognize a whistleblower cause of action, an employee's disclosure of his or her employer's potential violation of a criminal law constitutes protected activity. (14)

The employee does not have to prove that the employer actually committed a crime. Whistleblower laws are designed to protect and encourage disclosures of potential wrongdoing. If employees had to demonstrate the merits of their disclosures, whistleblowing would be discouraged, and very few, if any, employees would ever risk filing an allegation of wrongdoing with the appropriate authorities.

This principle is firmly established in case law. Fifty years ago, the Second Circuit held that antiretaliation laws were designed to "prevent intimidation" of witnesses. (15) Citing this case, the U.S. Supreme Court recognized that these laws were designed to ensure that sources of information to the government were not "dried up" by intimidation. (16)

In 1990, President George Bush signed an executive order affirming that whistleblower laws were not designed to protect only employees whose allegations are validated. It requires all federal employees to blow the whistle on "waste, fraud, abuse, and corruption." (17)

In regulations implementing this order, the Office of Government Ethics (OGE) set forth the government's desire that employees "over-report" suspected misconduct and permit the "appropriate authorities" to determine the validity of the allegations. The OGE correctly noted that it would be wrong to require that employees understand the "complex legal principles" often involved in "determining whether improprieties should be reported." These concerns are reflected throughout the case law governing whistleblowing. (18)

Courts have regularly held that the merits of the whistleblower's allegations have no bearing on whether raising the concerns in the first place was protected activity. Incorrect, "ill-formed," and "misguided" allegations of misconduct merit legal protection, (19) provided that the employee's disclosures were raised in a "good faith" belief that "reasonably perceived violations" of applicable law or regulations existed. (20)

In most cases, the correctness of an employee's allegations is never litigated. However, even though the worker is not required to prove the allegations, he or she should conduct discovery regarding their validity and offer any proof of them at trial.

If the allegations prove true, this may be relevant to intent. The harassment or discharge may have been motivated by an intent to cover up known violations of law. Proving that those responsible for instigating or approving the retaliation knew or suspected the truth of the allegations can provide strong evidence of motive.

For example, in a case under the Atomic Energy Act's whistleblower provision, (21) the labor secretary reasoned that an employer's credibility was undermined because it attempted to conceal an improper falsification "exactly as alleged." (22)

In another nuclear safety case, the labor secretary was even more explicit in explaining the relationship between protected activity and proof of motive: The "deliberate violations of [Nuclear Regulatory Commission (NRC)] regulations suggest antagonism toward the NRC regulatory scheme and thus may provide support for an inference of retaliatory intent." The secretary then permitted discovery by employees to determine the validity of the whistleblower's allegations concerning safety. (23)

A whistleblower's lawyer must consider carefully whether to litigate the allegations' underlying validity. Because the truth of the allegations is not necessarily an element of the retaliation claim, proof of their truth can be used simply to support the claim that the employee engaged in a protected activity when making them.

However, the underlying allegations' validity can be one of the most important aspects of a case. Any triers of fact--from skeptical jurors to hardened judges--can be impressed by proof that the whistleblower was correct or that the whistleblower's courage in exposing misconduct did in fact help protect the public. A finding of retaliatory motive naturally flows from this: Why would an employer fire an employee who correctly identified a significant problem?

Pieces of proof

Proof of intent is usually the most difficult aspect of a case. Testimony that contains a direct admission of retaliatory motive rarely exists. Lawyers who represent whistleblowers must carefully review both the direct and circumstantial factual evidence of motive.

While it may be impossible to provide complete proof of a defendant's retaliatory conduct, placing several pieces of the evidentiary puzzle before the judge or jury may be enough for them to see the big picture.

Notes

(1.) Ellis Fischel State Cancer Hosp. v. Marshall, 629 E2d 563, 566 (8th Cir. 1980). Although proof of intent is usually required in whistleblower cases, if a company establishes a policy that interferes with its employees' protected conduct, direct evidence of specific intent may not be necessary. See, e.g., EEOC v. Board of Governors, 957 F.2d 424, 428 (7th Cir. 1992); Sanjour v. EPA, 56 F.3d 85 (D.C. Cir. 1995).

(2.) Kane v. Krebser, 44 F. Supp. 2d 542, 547 (S.D.N.Y. 1999). Accord AKA v. Washington Hosp. Ctr., 156 F.3d 1284, 1292 (D.C. Cir. 1998) (en banc).

(3.) See STEPHEN M. KOHN, CONCEPTS AND PROCEDURES IN WHISTLEBLOWER LAW 266-72 (2001) (outlining various proofs necessary to demonstrate intent by direct or circumstantial evidence).

(4.) Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 134 (2000).

(5.) Hollander v. Am. Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 1990).

(6.) N.Y. LABOR LAW [section] 740(f) (McKinney 2001); OHIO REV. CODE ANN. [section] 4113.52 (West 2001).

(7.) See NLRB v. Scrivener, 405 U.S. 117, 121-24 (1972); DeFord v. Sec'y of Labor, 700 F.2d 281,283 (6th Cir. 1983).

(8.) Saporito v. Fla. Power, No. 89-ERA-7/17 (Dep't of Labor June 3, 1994); Fabricius v. Town of Braintree, Adm. Rev. Bd. No. 97-CAA-14 (Dep't of Labor Feb. 9, 1999).

(9.) See Mandreger v. Detroit Edison Co., No. 88-ERA-17, slip op. at 19 (Dep't of Labor Mar. 30,1994) (Dec. and Ord.); Dutkiewicz v. Clean Harbors Envtl. Servs., Adm. Rev. Bd. No. 97-090, slip op. at 7 (Dep't of Labor Aug. 8, 1997) (Final Dec. and Ord.); Pogue v. Dep't of Labor, 940 F. 2d 1287, 1290 (9th Cir. 1991).

(10.) See, e.g., McMahan v. Cal. Water Quality Control Bd., Off. of Adm. App. No. 90-WPC-1, 4 (Dep't of Labor July 16, 1993) (Final Dec. and Ord.); Dutkiewicz, No. 97-090, slip op. at 7, aff'd Clean Harbors Envt'l Serv. v. Herman, 146 F.3d 12 (1st Cir. 1998).

(11.) Leveille v. N.Y. Air Nat'l Guard, Nos. 94-TSC-3 and -4, slip op. at 16-17 (Dep't of Labor Dec. 11, 1995) (Dec. and Ord. of Remand).

(12.) Id.

(13.) 18 U.S.C. [section] 1512(c)(2001).

(14.) See KOHN, supra note 3, at 21-25, 248-63.

(15.) John Hancock Mut. Life Ins. Co. v. NLRB, 191 F.2d 483 (D.C. Cir. 1951).

(16.) Scrivener, 405 U.S. 117, 124.

(17.) Exec. Order No. 12,731, 55 Fed. Reg. 42,547, 42,548 (1990), reprinted in 5 C.F.R. pt. 2635.

(18.) Office of Gov't Ethics, Standards of Ethical Conduct for Employees of the Executive Branch, 57 Fed. Reg. 35,006, 35,007 (Aug. 7, 1992) (Final Rule). Accord Yellow Freight Sys., Inc. v. Martin, 954 F.2d 353, 357 (6th Cir. 1992) andAilum v. Valley Bank of Nev., 970 P.2d 1062, 1068 (Nev. 1998).

(19.) Passaic Valley Sewerage Comm'rs v. U.S. Dep't of Labor, 992 F.2d 474, 478 (3d Cir. 1993). Accord Keene v. Ebasco Constructors, Inc., No. 95- ERA-4, slip op. at 9 (Dep't of Labor Feb. 19, 1997) ("An employee's reasonable belief that his employer is violating the [statute's] requirements is sufficient, irrespective of after-the-fact determinations regarding the correctness of the employee's belief.").

(20.) KOHN, supra note 3, at 264.

(21.) Keene, No. 95-ERA-4, at 5.

(22.) Id.

(23.) Timmons v. Mattingly Testing Servs., No. 95-ERA-40 (Dep't of Labor June 21, 1996) (Dec. and Order of Remand); Khandelwal v. S. Cal. Edison, Adm. Rev. Bd. No. 97-050 (Dep't of Labor Mar. 31, 1998) (Dec. and Order of Remand).

Stephen M. Kohn is partner with Kohn, Kohn & Colapinto in Washington, D.C. He is the author of Concepts and Procedures in Whistleblower Law (2001).