by Stephen Kohn
But what about in retaliation cases? Although the “black letter” law holds that employees are under no obligation whatsoever to prove the accuracy of their whistleblower allegations, this standard of proof can be somewhat misleading. The law on “good faith” holds that as long as whistleblower disclosures were objectively reasonable—made with a good faith belief that wrongdoing had occurred—the whistleblowing is protected and there is no need to ever prove that misconduct actually occurred. If proving the validity of a disclosure is not required, why bother?
If you know that the underlying allegations were not verified and/or were relatively insignificant in nature, there is no reason to make them central to your case. The courts are absolutely correct in demanding that whistleblower laws be interpreted as “freedom to disclose” laws, and their analysis of the detrimental impact of forcing an employee to demonstrate the accuracy basis in the allegations is completely on point.
Many attorneys reviewing the whistleblower cases reasonably stop their analysis here. The law does not require that the whistleblower prove the accuracy of his or her allegations of misconduct. So why prove the accuracy? It will delay the proceeding, cost money (in terms of discovery and litigation costs), and may not even be admissible in the hearing (especially if the company enters into a stipulation or does not contest the fact that the employee engaged in protected activity). This can be a big mistake. The accuracy of the underlying allegations can be the train that moves the entire proceeding forward.
First, a smart company does not want a regulatory agency to find that the company violated the law. It’s very bad public relations to say the least. Such findings can trigger further investigations, spark criminal or civil enforcement proceedings, and undermine the credibility of the company with its government regulators and the public. A smart employer will admit that problems exist and try to resolve the dispute with the whistleblower. An intransigent employer will fight on, often with devastating results (including, in some cases, bankruptcy).
Second, it is important to ask why a whistleblower risked his or her career in the first place. It surely wasn’t to obtain a “make whole” remedy. Proving the truthfulness of the whistleblower allegations provides the vindication many whistleblowers need to make things right, not to mention providing the company a strong motive to settle a case on reasonable terms.
Third, even if the employer does concede that the employee’s protected activity was reasonable or conducted in good faith, an employee can still pursue discovery into the underlying concerns in order to obtain evidence of motive. Companies that violate safety standards, cheat on government contracts, or manipulate stock prices have a motive to fire a whistleblower. Proving that motive not only satisfies a critical element of an employee’s retaliation case but also impeaches the credibility of the employer’s “legitimate business reason” for firing the whistleblower. An unbiased juror or judge will understand that a company would want to suppress an employee whose complaints were accurate. What better reason to retaliate against an employee than to cover up a mistake or regulatory violation?
Getting the Facts Out: The Turner Trial
On a frozen February morning in 2007, ten Minnesota jurors returned from their deliberations to announce their verdict in a nine-year legal battle between Jane Turner and her former employer, the FBI. During the two weeks of trial, three government lawyers, two from the Justice Department and one from the FBI, called witness after witness to attack Turner. The witnesses included the top official from the FBI’s powerful Criminal Division and the former special agent in charge of the FBI’s Minneapolis division. A high-ranking former “inspector,” who led an “independent” review of Turner’s performance was one of the government’s star witnesses. Turner, who had worked as an agent for twenty-five years, listened to these managers tear apart her career, and she was not at all surprised at what they had to say.
Turner had challenged one of the most tight-knit and insular agencies in the county—an employer with an authoritarian history and a motto proclaiming: “Thou Shall Not Embarrass the Bureau.” Turner had directly taken on the FBI’s “old boy network.” She had accused respected and high-level G-men of incompetence and misconduct in handling horrendous child-crime cases. She accused her bosses of ignoring the brutal rape of a five-year-old Indian child. Shocking allegations.
As a technical matter, Turner was not obligated to prove that the FBI had botched child-crime cases. Like most retaliation cases, she only needed to demonstrate the reasonableness of her concerns, not their truth. At first blush, the issue at trial appeared typical of any employment case. Turner claimed she was an excellent agent with years of strong performance. Her FBI managers claimed her performance had radically dropped, that she botched cases, and that she no longer could perform her job. The scenario was typical. Like almost every company bent on retaliation, the FBI built a “case” against Turner—documenting every minor infraction, monitoring her every movement, and placing her on endless “performance improvement plans” whose essence was creating a mechanism to document performance failures.
Turner challenged the FBI head-on. She put on evidence documenting her main whistleblower concern: that the FBI had botched child-crime cases. If she was right, her managers would be discredited. If she was wrong, the performance failures would appear credible. The truth of her serious allegations of misconduct became the centerpiece of the trial.
Turner subpoenaed two assistant U.S. attorneys with whom she worked during the five months her alleged performance collapsed. She questioned them about a case she worked over the summer and fall of 1999. Turner was very lucky. Although they were still employed as prosecutors for the United States, and regularly interacted with their FBI investigators, both told the truth without hesitation. They explained what happened in a controversial child-crime case Turner had worked, over the objection of her immediate supervisor.
On the July 4 weekend in 1999, a five-year-old boy from the Turtle Mountain Indian Reservation was hospitalized. The child suffered from severe rectal tearing, injuries that were consistent with having been brutally raped. Nurses in the emergency room were traumatized over the injury. The parents, who acted cold and detached while at the hospital, said that the injury resulted from a car accident. The treating emergency room doctor found the explanation absurd. However, the Bureau of Indian Affairs policeman accepted the story. The FBI agent responsible for Turtle Mountain reviewed the file and decided that no charges would be pursued. Case closed.
Weeks later Turner visited the local hospital. The medical staff accosted her, including the doctor who worked on the child in the emergency room. They were angry and upset. Why were no charges filed? Why was the child sent back to the family—where the stepfather (the most likely suspect) would have access to him?
Turner reviewed the case file and immediately contacted the U.S. attorney’s office. She relayed what had occurred. Based on the file, it was clear that her fellow agent had completely botched the case. Just as her management was hammering her over so-called performance issues, she now was confronted once again with another example of FBI mishaps, another example of the FBI turning its back on a child victim on an Indian reservation. She could turn her back and support the decision of her fellow agent, or she could pursue the matter and potentially once again “embarrass the Bureau.”
She reopened the case. It did not take long for Turner to rule out the ridiculous story initially credited by the FBI. The auto-accident theory forensically fell apart, and the one witness who initially backed up the suspected rapist recanted his testimony. An objective review of the medical information left only one explanation for the injuries. Now it was only a question of time. The suspect was the stepfather. On the day of the crime his conduct in the emergency room was consistent with that of a child molester. Turner knew the profile well, as she had successfully cracked other cases and was a certified psychological profiler, trained by the FBI’s top experts.
Turner recommend
ed that the stepfather be asked to undergo a voluntary polygraph and questioned about the incident. After significant delays, at the request of the federal prosecutors, Turner’s recommendation was followed. A confession was obtained. The stepfather pleaded guilty to the sexual assault.
Instead of greeting Turner’s superb gumshoe work on the child-rape case with gratitude, her managers grew even more upset. How dare Turner second-guess a fellow agent? How dare she embarrass the FBI by reopening a closed case—after the FBI had made a determination that the child had not been raped? The FBI’s reaction to Turner was typical of how mid-level and upper-level managers often react to whistleblowers. Circle the wagons, defend the line supervisor implicated in the retaliation, and “shoot the messenger.” Turner was given another terrible performance review. She was a pariah—an agent to be avoided at all costs.
But Turner could prove she was right. A child had been brutally raped. The FBI had accepted a patently absurd alibi, without any investigation. It had closed the case. As confirmed by the federal prosecutors who worked the case, but for Jane Turner’s tenacity, a child rapist would have been walking the streets.
The managers who tried to justify the FBI’s handling of the case lost their credibility before the court. How could a juror believe the testimony of FBI supervisors who attacked Turner’s performance, when these same managers had backed up the agent who closed the child-rape case? The truth of Turner’s allegations that the FBI botched child-crime cases at the Turtle Mountain Indian Reservation impeached every FBI witness who tried to smear her.
The Minneapolis Star Tribune reported on the jury’s verdict:
Federal jurors hugged former FBI agent Jane Turner. “I think you were the very best FBI agent,” juror Mashima Dickens told Turner, who investigated child sex-abuse crimes.
“Looking at the way you were treated, I just said you were screwed left and right,” Dickens said, tears rolling down her cheeks.
“I just want to tell you I have nothing but the utmost respect for you,” juror Renee Anderle said as she hugged Turner in the hallway outside Chief U.S. District Judge James Rosenbaum’s courtroom in Minneapolis.
“This is vindication,” said Turner, 55, of St. Paul. “We spoke truth to power, and we won.”
“The Truth Shall Set You Free”
The “truth” behind a whistleblower’s cause can be the engine that drives a case, pushing it forward while placing the company on the defense, establishing strong credibility for the whistleblower, and eventually enabling an employee to triumph against a far stronger and well-funded foe. In the end, the hardest part of a case is to make the whistleblowing work—both to fix a problem and save a job.
PRACTICE TIPS
The U.S. Department of Labor’s Administrative Review Board has issued a number of rulings explaining how proof of employer violations constitutes important evidence of retaliatory motive:
• Khandelwal v. Southern Cal. Ed., 97-ERA-6 (ARB, March 31, 1998)
• Seater v. Southern Cal. Ed., 95-ERA-13 (ARB, September 27, 1996)
THE FINAL RULERemember July 30, 1778
One thing is certain: The roots of whistleblowing can be found deep in the American Dream. They are not based on wealth or opportunity, but on service and a Democratic Ideal that can be traced directly back to the earliest days of the American Republic and the very first whistle-blowers in the newly independent United States.
On February 19, 1777, just six months after the Declaration of Independence was signed by our Founding Fathers, the warship Warren was anchored outside of Providence, Rhode Island. On board, ten sailors and marines who had joined the U.S. Navy to fight for independence from Great Britain, met, not to plot a battle against the King’s armies, but rather to vet their concerns about the incompetence and lack of moral integrity of the commander in chief of the Continental Navy, Commodore Esek Hopkins. Their boss not only held the top Navy job, but came from a powerful colonial family; his brother was a governor of Rhode Island and one of the original signers of the Declaration of Independence.
These sailors were devoted to fighting and winning the War for Independence. They were revolutionaries, risking their lives to build a free and independent America; they wanted nothing more than to fight and defeat their British foes. However, they feared that their commander could not successfully lead any such effort, for his tactics foreshadowed doom for the new American Navy. They blew the whistle on the mistreatment of prisoners almost 250 years before other whistleblowers exposed mistreatment of prisoners in the modern “war on terror.”
The American Republic was not yet one year old. There was no First Amendment protection for freedom of speech. There were no legal protections for any whistleblowers, let alone sailors and marines who intended to expose misconduct by their commander in the middle of a war. Yet these ten men agreed to send a petition to Congress to expose misconduct by the Navy’s highest officer. They became the first whistleblowers of the newly independent United States of America: Captain of the Marines John Grannis, First Lieutenant of the Marines George Stillman, Second Lieutenant of the Marines Barnabas Lothrop, First Lieutenant Roger Haddock, Second Lieutenant James Sellers, Third Lieutenant Richard Marvin, Chaplain John Reed, midshipman Samuel Shaw, ship’s gunner John Truman, and ship’s carpenter James Brewer.
Their petition, straightforward and written from their hearts, is found below:
On Board the Ship ‘Warren’
Feb 19, 1777
Much Respected Gentlemen: “We who present this petition engaged on board the ship ‘Warren’ with an earnest desire and fixed expectation of doing our country some service. . . . We are ready to hazard every thing that is dear & if necessary, sacrifice our lives for the welfare of our country, we are desirous of being active in the defense of our constitutional liberties and privileges against the unjust cruel claims of tyranny & oppression; but as things are now circumstanced on board this frigate, there seems to be no prospect of our being serviceable in our present situation. . . . We are personally well acquainted with the real character & conduct of our commander, commodore Hopkins & we take this method not having a more convenient opportunity of sincerely & humbly petitioning, the honorable Marine Committee that they would inquire into his character & conduct, for we suppose that his character is such & that he has been guilty of such crimes as render him quite unfit for the public department he now occupies, which crimes, we the subscribers can sufficiently attest.
Each sailor also signed personal affidavits to Congress setting forth specific instances of misconduct committed by the commander in chief that they had witnessed. These included allegations that commodore Hopkins “treated prisoners in the most inhuman & barbarous manner,” failed to attack a British frigate that had run aground (thereby permitting the enemy to escape), and stated that he would “not obey the Congress” of the United States.
Captain John Grannis agreed to secretly leave the Warren and present the whistleblower allegations to the Continental Congress’s Marine Committee. Grannis traveled from Rhode Island to Philadelphia, presented the petitions to the Congress and testified before a special congressional subcommittee appointed to hear the whistleblower’s concerns:
Q: Are you the man who signed the petition against Esek Hopkins, Esq. by the name of John Grannis?
A: Yes . . .
Q: Commodore Hopkins is charged with being a hindrance to the proper manning of the fleet, what circumstances do you know relative to this charge?
A: For my part his conduct and conversation are such that I am not willing to be under his command. I think him unfit to command . . . his conversation is at times so wild & orders so unsteady that I have sometimes thought he was not in his senses & I have heard others say the same. . . .
Q: Had you liberty from Commodore Hopkins . . . to leave the frigate you belong to?
A: No. I came to Philadelphia at the request of the officers who signed the petition against Commodore Hopkins & from a Zeal for the American cause.
/> Q: Have you, or to your knowledge either of the signers aforesaid any difference or dispute with Commodore Hopkins since you or their entering into service?
A: I never had, nor do I believe that either of them ever had. I have been moved to do & say what I have done & said from love to my country . . .
On March 26, 1777, the Marine Committee concluded its investigation and presented the matter to the full Continental Congress, including all the papers signed by the officers of the Warren. After considering the matter, Congress backed up its whistleblowing sailors and passed the following resolution: “Resolved, That Esek Hopkins, be immediately and he is hereby, suspended from his command in the American Navy.”
Congress listened to the voices of the whistleblowers and suspended the highest-ranking naval officer. John Hancock, the president of the Continental Congress, and the most famous signer of the Declaration of Independence, certified the resolution and ordered that it be served on Hopkins. Hopkins remained under suspension for over nine months. He never appeared before Congress to refute the allegations. On January 2, 1778, Congress voted to fully terminate Hopkins’s service, and he was subsequently removed from the U.S. Navy.
Unfortunately, the incident did not end with the commodore’s removal from office. Hopkins sought revenge against the whistleblowers—both during his short remaining stint as commodore and after he was stripped of his command. Upon learning of the letters signed by the ten sailors and the fact that the information was being delivered to the Continental Congress, Hopkins sprung into action during his last days as commander. He used his authority to pressure the sailors to change their testimony, and he organized a rump military prosecution for one of the petitioners, Lieutenant Marvin. Marvin, a follower of Thomas Paine, was accused of being the “prime mover in circulating” the petition. Hopkins ordered Marvin arrested and tried by a court-martial.
