Articles Posted in Retaliation / Whistleblowing

Earlier this month, the United States Supreme Court ruled that the whistleblower protection of the Sarbanes-Oxley Act applies not only to employees of publicly traded companies, but also to employees of privately held companies who perform work for the publicly traded company as contractors or subcontractors.

The Sarbanes Oxley Act is a 2002 law that was passed in 2002 in response to the collapse of Enron Corporation.  It includes an anti-retaliation provision that prohibits public companies, as well as their employees and agents from firing, harassing, demoting, suspending, or otherwise discriminating against employees who blow the whistle on certain activities prohibited by the Act.

The case, Lawson v. FMR LLC, involves the Fidelity family of mutual funds, which has no employees of its own.  The whistleblowers were Jonathan M. Zang and Jackie Hosang Lawson, both of whom were employed by different subsidiaries of the same parent company, FMR LLC.  Their employers are private companies that manage and advise the Fidelity family of mutual funds.

To prevail in a retaliation lawsuit you have to prove your employer took an adverse action (such as demoting or firing you) because you engaged in a legally-protected activity. For example, if your employer fired you after you complained you were not being properly paid for working overtime you would have to prove there was a connection between your complaint and the company’s decision to fire you. This is called a “causal link.”

There are many different ways to prove a causal link in a retaliation case. Some of the most common ways include evidence your employer fired you quickly after you objected, a decision-maker was angry about your objection, or the company’s explanation for firing you is false. A recent New Jersey case, Goldsmid v. Lee Rain, Inc., finds another potential way to prove retaliation: Based on evidence the employer had someone ready to replace you very quickly after it fired you.

Craig Goldsmid worked for Lee Rain, Inc. in Vineland, New Jersey, most recently in the company’s warehouse. Although Lee Rain initially paid him by the hour, in early 2010 it began paying him a salary.

Last week, New Jersey’s Appellate Division revisited the question of whether an employee who blows the whistle about an activity related to his job duties can be protected by New Jersey’s Conscientious Employee Protection Act (CEPA). This time, the court concluded the employee can proceed with his claim even though he blew the whistle about an issue related to his job.

There is a split in legal authority over this issue. As I discussed in a previous article, New Jersey’s Whistleblower Law Protects “Watchdog” Employees Whose Jobs Require Them to Report Violations of Law, last September another panel of the Appellate Division ruled an employee whose job is focused on corporate safety or compliance issues is protected by CEPA only if he (1) “pursued and exhausted all internal means of securing compliance” or (2) “refused to participate in the objectionable conduct.” In contrast, several previous cases have ruled that employees who object about violations of the law in the course of performing their jobs are not protected by CEPA.

The latest case to address this issue is Dukin v. Mount Olive Township Board of Education. Robert Dukin worked for the Mount Olive Township Board of Education as an auto-mechanic. In early January 2010, he told his supervisor about a number of safety concerns about a particular school bus. The next time Mr. Dukin was at work, he saw a bus driver preparing to drive the unsafe bus. After confirming the bus had not been repaired, Mr. Dukin told the bus driver not to drive it. He then reported this to the New Jersey Motor Vehicle Commission’s on-site inspector, who directed Mount Olive to take the bus out of service.

Last month, in Gomez v. Town of West New York, the United States District Judge William Martini denied a motion to dismiss a civil rights lawsuit against the Town of West New York, New Jersey.

Alain Gomez worked for West New York as its Urban Enterprise Zone Coordinator. According to Mr. Gomez’s allegations, when Mayor Felix Roque ordered him to seek contributions to a private charitable not-for-profit organization the Mayor was running, Mr. Gomez refused because it was illegal to work for a private organization during his working hours for the Town. The Mayor then retaliated against Mr. Gomez by moving him into a small office without proper ventilation.

In response, Mr. Gomez filed a complaint under the New Jersey Public Employees Occupational Safety and Health Act (“PEOSHA”). The state eventually ordered West New York to provide Mr. Gomez safe working conditions. Around the same time Mr. Gomez also contributed information to a website called www.recallroque.com, and publicly accused Mayor Roque of misusing public resources.

New Jersey’s Conscientious Employee Protection Act (CEPA) has long been described as one of the broadest whistleblower laws in the nation. Among other things, it prohibits employers from retaliating against employees because they object to, disclose, or refuse to participate in an activity they reasonably believe is illegal, criminal or fraudulent.

Despite CEPA’s broad reach, several past cases have ruled that employees are not protected by CEPA if their objections were part of their job duties. For example, a safety officer who complains about an unsafe work condition or a human resources manager who reports sexual harassment would not be protected by CEPA under those cases.

But earlier this month, in Lippman v. Ethicon, Inc., New Jersey’s Appellate Division ruled that line of cases is inconsistent with the way the New Jersey Supreme Court has directed courts to interpret CEPA. It ruled that “an employee’s job title or employment responsibilities” should not be the deciding factor in a CEPA case.

The Affordable Care Act, also known as “Obamacare,” is not just a health care law. It also includes whistleblower protection. The United States Department of Labor (DOL) recently released interim rules regarding the law’s anti-retaliation provisions.

The Affordable Care Act makes it illegal for employers to retaliate against employees who report certain violations of the Act. Specifically, it protects employees who complaint about apparent violations of its prohibition against (1) lifetime limits on medical insurance coverage, and (2) denying coverage because of a preexisting medical condition. It also prohibits employers from taking reprisal against employees who receive a tax credit or similar benefit for participating in a Health Insurance Exchange. It further protects employees who testify, participate or assist with a proceeding regarding a violation of one of those provisions.

To qualify for whistleblower protection, an employee must have complained to his employer, the federal government, or a state attorney general. In addition, the regulations make it clear the employee does not have to be correct about the violation of law he reported, as long as he had both an objectively reasonable belief (meaning reasonable from the standpoint of the employee who complained) and a subjectively reasonably belief (meaning from the standpoint of a reasonable person) that the company was violating one of the relevant provisions of the Act.

In addition to prohibiting employment discrimination and harassment based on race, gender, sex, disability and other specific protected categories, the New Jersey Law Against Discrimination (“LAD”) also prohibits companies from retaliating against employees who object about discrimination or harassment in the workplace. The New Jersey Supreme Court recently clarified that this protection applies to employees who object about sexually offensive conduct toward women even if no women were aware of the offensive conduct. In the process, the Court seems to have expanded the LAD’s protection against retaliation to protect employees irrespective of whether it was reasonable for them to believe the harassment or discrimination violated the law.

United Parcel Service, Inc. (UPS) demoted Michael Battaglia shortly after he objected that his supervisor, Wayne DeCraine, called female employees “c*nts,” referred to a particular woman as “that b*tch,” called another female employee “big t*ts,” expressed his desire to have sex with another female employee, referred to an employee named Regina as “Vagina,” and discussed pornographic websites he visited at home. He also reported the fact that Mr. DeCraine was involved in a sexual relationship with a female employee. What distinguishes Mr. Bataligia’s case from most other cases is Mr. DeCraine did not engage in this sexually offensive conduct in the presence of any women, so no women even arguably were subjected to a hostile work environment.

Two years ago, New Jersey’s Appellate Division ruled that Mr. Battaglia’s objections were not protected by the LAD’s anti-reprisal provision. It did so because Mr. DeCraine’s conduct was not unlawful sexual harassment since no woman heard his offensive language, the romantic relationship he was having with another female employee was consensual, and there was no suggestion any woman was fired, demoted, or experienced another adverse employment action because of her gender. It interpreted the LAD’s anti-retaliation provision to require evidence of actual discrimination or harassment.

Last week, in University of Texas Southwestern Medical Center v. Nassar, the United States Supreme Court ruled there is a higher burden for an employee to prove his or her employer retaliated than to prove it discriminated under Title VII of the Civil Rights Act of 1964. Title VII is a federal law that prohibits employers from discriminating against their employees based on their race, color, religion, sex, or national origin. It also prohibits companies form retaliating against employees because they opposed, complained about, testified about, or otherwise pursued a claim of discrimination or harassment.

The Civil Rights Act of 1991 makes it clear that an employee can prove a Title VII discrimination claim if she proves her race, color, religion, sex, or national origin was a “motivating factor” in the employer’s decision to take a negative employment action toward her even if the company considered other lawful factors in making its decision. If an employee meets this requirement, the company still can avoid paying damages if it proves it would have made the same decision even without considering the illegal factor. The question in the Nassar case was whether the same standards apply to retaliation claims.

Several years ago, the Supreme Court ruled that since the Civil Rights Act of 1991 only amended Title VII, claims under the Age Discrimination in Employment Act (ADEA) do not follow the same motivating factor test. Instead, employees bringing cases under the ADEA have to prove the treatment they experienced would not have occurred but for their age. It is considered significantly more difficult to prove an employer’s decision would not have happened but for your age than it is to prove your age was a motivating factor in the company making that decision.

Earlier this year, New Jersey’s Appellate Division affirmed a trial court’s decision to reduce a firefighter’s emotional distress damages award from $3.5 million to $500,000. The case involved a retaliation claim brought by Firefighter Kevin Reilly against the Village of Ridgewood. Mr. Reilly had objected about numerous violations of fire safety and Occupational Safety & Health Act (“OSHA”) regulations. He claimed the fire department retaliated against him by, among other things, placing a negative memo in his personnel file, investigating an argument he had with another firefighter while off duty, and repeatedly skipping him for a promotion. He filed a lawsuit alleging Ridgewood retaliated against him in violation of New Jersey’s Conscientious Employee Protection Act (“CEPA”).

It is unclear why, but prior to the trial the judge dismissed Mr. Reilly’s claim for lost salary and benefits. At the trial, the jury found Ridgewood retaliated against Mr. Reilly, and awarded him $3.5 million for his emotional distress. On a post-trial motion, Ridgewood asked the judge to throw out the entire verdict, but the court found no basis to do so.

Ridgewood also asked the judge to reduce the amount of Mr. Reilly’s emotional damages award, claiming $3.5 million was so high it was a miscarriage of justice. The judge agreed, finding the award was so excessive that it was “shocking.” Although Mr. Reilly appealed, in Reilly v. Village of Ridgewood the Appellate Division affirmed.

As the trial court explained, in deciding whether to remit a jury verdict, a court is required to consider (1) the facts supporting the damages, (2) damage awards in similar cases, and (3) the judge’s “feel of the case,” to determine whether the damages were so “wide of the mark” to require a reduction.

With respect to the first factor, Mr. Reilly testified about the anxiety and depression he experienced but did not rely on any medical testimony. He explained he was a third generation firefighter whose career had been destroyed. He told the jury he no longer felt safe at his job because he could not trust his co-workers to back him up at a fire scene. He also indicated he was worried Ridgewood would fire him for any small error he might make.

With respect to the second factor, the judge reviewed numerous other employment law cases, and noted that none of them awarded close to $3.5 million for emotional distress. He discussed cases with emotional distress awards ranging between $125,000 and $1.5 million. He noted that the cases at the higher end of that range involved medical testimony regarding the employee’s pain and suffering, treatment for the emotional distress, physical symptoms, and/or other more serious manifestations of the emotional harm. He also noted that the cases at the lower end of the spectrum did not involve anything comparable to Mr. Reilly’s fear that his fellow firefighters would not back him up and that Ridgewood would fire him for any mistake he made.

With respect to the final factor, the judge described his observations about Mr. Reilly at the trial, including that he cried and showed emotion during his testimony, but seemed composed during the rest of the trial and did not otherwise demonstrate any behavior that suggested he was experiencing emotional distress.

When a judge concludes a jury’s verdict is so shocking that it must be reduced, he is required to replace it with “the highest figure that could be supported by the evidence.” After weighing all three factors, the trial judge determined that $500,000 was the highest award that could be supported by the evidence. Accordingly, he reduced Mr. Reilly’s emotional distress damages to $500,000, a very substantial award for an individual who did not have any medical testimony to support his emotional distress damages, but $3 million less than the jury had awarded.

Continue reading

Last week, I discussed a case which Clarifies How to Prove Sexual Harassment Under New York City Law. The same case also demonstrates how broad the New York City Human Rights Law (NYCHRL)’s protection is for employees who object about unlawful discrimination or harassment at work. It is a particularly noteworthy employment law decision because it recognizes that a company can violate the NYCHRL if it fires an employee whose job performance is extremely poor if there is evidence the company did not make the decision to fire her until after she objected about sexual harassment.
The NYCHRL prohibits employers from retaliating against anyone who opposes unlawful discrimination or harassment. It has been interpreted to protect a wide range of opposition to discrimination and harassment, including something as simple as expressing the opinion that certain treatment by a supervisor was improper or wrong. It also has been interpreted to prevent a wide range of retaliatory actions. In addition to prohibiting severe forms of retaliation such as firing, demoting, or suspending an employee, it also prohibits any other form of reprisal that is likely to deter someone from objecting to illegal discrimination in the future.

In Mihalik v. Credit Agricole Cheuvreux North America, Inc., Renee Mihalik claims her company’s Chief Executive Officer, Ian Peacock, retaliated against her after she rejected his sexual advance in December 2007. In particular, she told him his behavior was “offensive and shameful.” She claims Mr. Peacock subsequently berated her in front of her coworkers by saying she adds “nothing of value” to the company, has “no f–ing clue” about what she is doing, and is “pretty much useless.” She also claims Mr. Peacock stopped sitting next to her at the trading desk, and told the staff not to invite her to meetings. The Second Circuit Court of Appeals concluded that a jury could find Mr. Peacock took these demeaning actions toward Ms. Mihalik in response to her objection to his sexual overtures, and his behavior reasonably could deter Ms. Mihalik and/or other employees from coming forward with complaints about discrimination in the future.

Ms. Mihalik further claims Mr. Peacock retaliated against her by firing her. During a meeting in April 2008, Mr. Peacock told Ms. Mihalik that things were not working out with her. She responded by asking what was not working out, “me and you or me at the company?” The Court ruled that a jury could believe her question was a reference to her previous rejection of Mr. Peacock’s sexual advances, and as a result could find his decision to fire her was retaliatory.

Notably, the court reached this conclusion even though there was proof that Ms. Mihalik’s job performance was extremely poor. However, there also was evidence that Mr. Peacock had never spoken to her about her job performance before this meeting, Mr. Peacock admitted he had not decided to fire Ms. Mihalik before the meeting, and there was evidence he decided to fire her only after he became angry about her objection to his inappropriate behavior. Alternatively, the court found that a jury could conclude that Mr. Peacock had more than one reason for firing Ms. Mihalik — her poor performance and her objection to his sexual advances. Either way, it ruled there is enough evidence to support Ms. Mihalik’s claim, and her case should proceed to a trial.

Continue reading