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How Employers Can Get Away with Whistleblower Retaliation


It is generally understood that retaliation is illegal. If an employee engages in some form of protected activity and his employer takes negative action against him for that reason, the employer has violated the law. Whistleblowers are equally protected. In other words, if you report some improper conduct by your employer, you are protected against retaliation. Proving a claim of retaliation is a different matter. A recent case out of Pennsylvania has shown that not every employee who blows the whistle on an employer is immune from discipline or termination simply because he has engaged in protected activity.

The Third Circuit's troubling opinion

The primary lesson to be learned from the Third Circuit's recent decision in Wiest v. Tyco Electronics is that an employer may be free to terminate an employee without legal repercussions, even when it is undisputed that the employee was protected against whistleblower retaliation. The employee in that case, Jeffrey Wiest, was an accounts payable manager for Tyco who raised a question regarding expenses for two company meetings. He was ultimately terminated.

Wiest filed a lawsuit for retaliation, but it was initially dismissed on the ground that he had not actually engaged in any protected activity. That decision was reversed by the Third Circuit, however, during the first appeal of this case. The second time around, the case was dismissed on the ground that the whistleblowing was not the reason for his termination. In the end, the Third Circuit held that Tyco "amply … demonstrated that it would have taken the same action in the absence of any protected behavior."

What was Tyco's successful defense?

In order to succeed in the case brought by Wiest, Tyco asserted that it investigated Wiest based on complaints that he had made inappropriate comments to female employees. These women claimed that they felt "trapped" whenever Wiest approached them and they created a "Jeff Alert" to warn each other. None of these women were aware of his whistleblowing activity. Neither did the human resources directed who allegedly conducted the investigation. The appellate court relied on this defense and held that it could not "second-guess a human resources decision that followed a thorough investigation."

What Wiest failed to establish in his case

While Tyco's investigation was found to have had "ample support for th[e] complaints" against Wiest, he was unsuccessful in identifying how the investigation and his subsequent termination was a result of his protected activity. It was this lack of evidence that resulted in the dismissal of his case. Put another way, Wiest could not call his employer's reason for firing him into question. Therefore, Tyco was successful in its defense that it would have terminated Wiest regardless of whether he engaged in protected activity. It is also important to note that Wiest argued his "termination was an unreasonably harsh punishment, and, but for his protected activity, he would have received a more lenient reprimand."

If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact the experienced employment attorneys at Michel | King , either online or by calling us at (205) 265-1880.

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