Fired for Being a Whistleblower

Case Analysis

Case 1: Palmateer v. International Harvester Company, 85 Ill. 2d 124, 421 N.E.2d 876 (1981)

Parties: In the case of Palmateer v. International Harvester Company, the plaintiff was an employee of the defendant company.

Facts: Plaintiff claims he had been wrongfully terminated from his position for helping law enforcement by being essentially a whistleblower on the company, which he was doing when he reported the crime to law enforcement.

Issue: The issue at stake was whether or not the defendant company had acted within the bounds of the law, with respect to at-will termination.

Applicable Laws: The case involves the tort of retaliatory discharge in Illinois, i.e., termination is not justified when termination undermines public policy, i.e., the common good.

Holding: The holding of the court was that the plaintiff had indeed been wrongfully terminated, and awarded him damages accordingly.

Reasoning: The reasoning was that the defendant had undermined public policy by engaging in retaliatory discharge, as plaintiff had been helping police and therefore was protected.

Case Questions: Is there a difference between the court’s protection of an employee who reports a rape by a coworker or the theft of a car and an employee who is constantly reporting the theft of the company’s paper clips and pens?

It is well established that an employee who reports criminal activity by a coworker is protected from retaliation by their employer. This protection stems from the public policy interest in encouraging reporting of illegal activity. However, it is less clear whether an employee who makes frequent complaints about relatively minor incidents of workplace misconduct is similarly protected. Some courts have held that such employees are not entitled to the same level of protection, on the grounds that their complaints are not in furtherance of a public policy interest. Other courts have taken a more expansive view, holding that any complaint made in good faith is entitled to protection.

Should the latter employee in the above question be protected? Consider that the court in Palmateer remarked that “the magnitude of the crime is not the issue here. It was the General Assembly who decided that the theft of a $2 screwdriver was a problem that should be resolved by resort to the criminal justice system.”

Yes, the above employee should be protected.

What are other areas of public policy that might offer protection to terminated workers?

Discrimination clauses in Title VII under the Civil Rights Act could offer protection.

Conclusion: As is pointed out, “the foundation of the tort of retaliatory discharge lies in the protection of public policy, and there is a clear public policy favoring investigation and prosecution of criminal offenses” (p. 99). My recommendations are same as the court’s: The defendant was protected under public policy from being terminated from providing law enforcement with useful information that would ultimately be used to protect and maintain the common good of the community by bringing justice to criminal actors within the company that terminated the defendant.

Case 2: Osborne Assocs. v. Cangemi, 2017 WL (M.D. Fla. 2017)

Parties: The parties are Generations Salon proprietors (plaintiff) and Silver Salon proprietors (defendants). The defendants were formerly employees of the plaintiff, Cangemi et al.

Facts: Generations Salon accuses Cangemi and Calianno of breaching the terms of their non-compete agreements, breaching their fiduciary duties, violating the Federal Defend Trade Secrets Act, 18 U.S.C. § 1836, as well as violating Florida’s Uniform Trade Secrets Act, FLA. STAT. § 688.001. Defendants claim they learned nothing new from employer. Nonetheless, defendants did violate non-compete agreements after leaving Osborne by opening their own salon and marketing to Osborne customers.

Issue: Protection of trade secrets are apparently at issue, justifying the non-compete clause; also the issue of soliciting and diverting clients to defendants’ Silver Salon. Cangemi et al. claim they did not learn anything from Generations that they did not already know.

Applicable Law: Applicable laws are the FDTSA and the state’s UTSA, as noted above.

Holding: Injunction was granted to the plaintiffs, barring defendants from soliciting customers from Generations Salon or marketing so as to compete against Generations.

Reasoning: The judge reasoned that it was in the interest of the public that an injunction should be awarded to the plaintiff based on case precedent (N. Am. Prods. Corp. v. Moore). The defendants had violated their non-compete agreement and that put them in violation of the law.

Case Questions: What alternative fact pattern might change the court’s decision on whether Cangemi and Calianno breached their non-compete agreements?

If Cangemi and Calianno had been employed in different cities, it is possible that the court would have found that their non-compete agreements were not breached. The reason for this is that the geographic scope of the agreements would have been much smaller, making it less likely that the parties would have come into competition with each other. As a result, this alternative fact pattern could have resulted in a different outcome in the case.

If Generation Salon did not have its proprietary Stanglware database, would this case be resolved differently?

It very likely may have been resolved differently, as part of the suit focused on the loss of IP.

Is it fair to restrict Cangemi and Calianno from using their knowledge to begin their own business in this industry?

No, that would not be fair, but that is not the focal point of the case.

Conclusion: The defendants had all worked at Generations Salon, and they each signed a non-compete agreement which prohibited them from working for a competing salon within a certain distance of Generations Salon. The court saw it as enforceable among other torts. I recommend against an injunction as the grounds are flimsy.

Case 3: Herawi v. State of Alabama, Department of Forensic Sciences, 311 F. Supp. 2d 1335 (M.D. Ala. 2004)

Parties: Ms. Herawi (plaintiff) accuses defendant (State of Alabam) for violating Title VII of the Civil Rights Act.

Facts: The plaintiff in the case, Ms. Herawi, is an Iranian woman who was employed by the State of Alabama as a forensic scientist. She was harassed multiple times while employed there. She complained and was fired. After Department terminated her based on race and nationality, plaintiff sued alleging that she was retaliated against for complaints and that she was harassed during employment.

Issue: The issue in this case is whether the State of Alabama violated Title VII of the Civil Rights Act of 1964 by discriminating against Ms. Herawi on the basis of his religion. The act prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. In its defense, the State of Alabama argued that Ms. Herawi had not been treated differently from other employees and that there was no evidence that she had been subject to discrimination.

Applicable Laws: Title VII of the Civil Rights Act of 1964

Holding: Judgment was granted to plaintiff based on evidence provided at hearing, supporting allegations against the state and the Department.

Reasoning: Prejudice and discrimination are a violation of Title VII of the Civil Rights Act. Her termination violated her civil rights.

Case Questions: Are you persuaded by the state’s evidence that it had an individual of a different national origin who was treated similarly to Herawi? If Ward (or other managers) treated everyone equally poorly, perhaps there is no national origin claim. What if Ward’s defense is simply that her poor treatment of Herawi had nothing to do with national origin but that she just really did not like Herawi specifically? Would that be an acceptable defense, and could it have saved the state’s case?

No, that is not persuasive evidence—harassment is harassment. Such a claim of dislike would not be an acceptable defense because it could stem from unconscious bias or prejudice.

The court explains that pretext may be based on comments depending on “whether their substance, context, and timing could permit a finding that the comments are causally related to the adverse employment action at issue.” What elements would you look to in order to find pretext if you were on a jury?

When looking for pretext in a criminal case, jurors would typically look for any inconsistencies in the prosecution's case. This might include evidence that doesn't add up, contradictions in witness testimony, or anything else that casts doubt on the prosecution's version of events. In some cases, there may also be evidence of a motive for the crime that doesn't fit with the prosecution's theory. For example, if the victim was known to have a large amount of cash on hand, this could provide a possible motive for theft that the prosecution has not considered.

The court explains that timing alone would not be enough to satisfy the causality requirement of retaliatory discharge. Given the facts of this case, if you were in charge of the department and if Herawi truly were not performing at an acceptable level and you wished to terminate her after all of these circumstances, how might you have better protected the department from a retaliatory discharge claim?

It would have to be based on performance review, with opportunities being given to the employee to reform, and if no reform or improvement in performance is shown in x amount of time, termination is triggered.

Conclusion: The plaintiff won judgment based on evidence supporting allegations of racial discrimination. My recommendation aligns with the court’s based on the same.

Case 4: National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989)

Parties: The National Treasury Employees Union (NTEU) is a federal employees union that represents workers in various agencies, including the U.S. Customs Service (plaintiff). The defendannt Von Raab, Commissioner of theUnited States Customs Service.

Facts: US Customs Service began drug testing employees. The Employees Union believed this was a violation of Fourth Amendment right to privacy. The government countered that it had need for testing based on the fact that employees carried guns, i.e., it was a safety precaution.

Issue: The issue revolved around the U.S. Customs Service's decision to implement a drug testing program for employees who were seeking promotion to positions that required them to carry firearms or be involved in drug interdiction. The NTEU argued that the program was an unreasonable search and seizure, and thus a violation of the Fourth Amendment.

Applicable Law: Fourth Amendment law gives a reasonable right to privacy to all citizens.

Holding: The Supreme Court sided with defendant, saying defendant had a right to order drug tests.

Reasoning: Reason for the decision was based on the fact that employees had access to guns and therefore needed to be judged as sober, hence the requisite testing and not a violation of privacy.

Case Questions: An approved drug use test must be conducted within reasonable parameters. In Capua, the court determined that a urine collection process may not be reasonable if “done under close surveillance of a government representative [as it] is likely to be a very embarrassing and humiliating experience.” Courts will generally balance the employee’s rights against the employer’s stated basis for the test and determine whether the cause of the test is reasonable and substantial. For instance, in Skinner v. Railway Labor Executives Assn., the Supreme Court stated that the railway employees had a reduced expectation of privacy due to the highly regulated nature of the industry. In addition, societal interests, such as safety and security of the railways, may outweigh the individual employee’s privacy interests. When might this be the case?

This might be the case when there is a need to protect travelers and other employees from individuals who might not be sober while on the job.

Why do you think the Court made a distinction between positions involving contact with drugs and firearms and positions that require handling of classified materials?

Firearms can kill, while handling classified materials is not seen as lethal.

Conclusion: The preservation of public safety overrides citizens’ Fourth Amendment rights in this case. My recommendation does not align with the Court’s. Sobriety should be determined by direct observation—testing not made mandatory.

Case 5: Local 28, Sheet Metal Workers v. EEOC, 478 U.S. 421 (1986)

Parties: The plaintiff, Local 28, represents sheet metal workers employed by contractors in the New York City metropolitan area. The defendant The defendant was the Equal Employment Opportunity Commission.

Facts: The Local 28 had not had any members who were African American or Latinx for years, and the EEOC had filed a complaint alleging discrimination. The Local 28 agreed to an affirmative action plan offering benefits to non-members. This occurred after years of doing nothing to address EEOC complaints.

Issue: Affirmative action and discrimination against ethnic and racial minorities was the main issue in this case.

Applicable Law: Title VII of the Civil Rights Act was the applicable law, cited by the EEOC.

Holding: The Supreme Court held that the remedies in the case were appropriate under the circumstances and that the Local 28 was now operating in good faith in accordance with the public policy overseen by the EEOC so long as it implemented the affirmative action plan.

Reasoning: The justification for the decision was that the Local 28 had received several complaints on this matter in the past and had not taken any steps to remedy the situation. The affirmative action plan was seen, finally, as a remedy, coming upon years of neglect and attempts to ignore the issue.