Two Crime Stories - Two Perspectives on the Whistleblower's Complaint
Multiple stories are offered to describe a crime. Pressing his case, the whistleblower is
reminded by his employer and by authorities that his interpretation may not be
right. Doubt exists always.
The facts surrounding a violent crime:
Mark has for many years had a
friend Penny, the single mother of a young boy.
Mark and Penny occasionally have a drink together and talk. Penny has confided in the past that her
drinking and gambling, while very enjoyable, sometimes keep her from providing
for all of her son’s needs. Mark
counselled her to change her ways, but he did not press the issue.
One evening Penny told him that her
financial situation had become so dire that she had to do something serious,
maybe rob a bank or something. Mark urged
her to do no such thing. A week later,
Mark learned that a neighborhood store had been robbed at gunpoint by a masked
woman. Shortly afterward, Penny told
Mark that, as a result of good fortune, her financial situation was much
improved.
Mark eventually overcame his
loyalty to Penny and her son, and he contacted the police to
describe his suspicion. After she was
arrested, Penny admitted having committed the robbery but claimed that she had
done it in order to provide for her son.
When she learned that Matt had turned her in, she ended her friendship
with him.
In this situation, there is the Prior Behavior of Penny’s drinking
and gambling (whether she could have changed easily or not) and Mark’s counsel. Then follows a Condition of financial
distress that leads to the Subsequent Behavior of robbing the store, reporting
the crime, and ending the friendship.
The end of the friendship resulted indirectly from Prior Behaviors,
which led first to the Condition and then to the Subsequent Behavior. But Penny’s decision to end it resulted directly
from Mark’s report of her possibly robbing the store.
The facts surrounding a white-collar crime:
Matt has for many years worked as
an accountant for ABC Company, whose current CEO is Peggy. Matt warned Peggy that ABC’s financial
condition was worsening and actions were needed to correct the slide. Peggy felt that she was guiding ABC on a
course that would lead to its long-term success and that Matt’s comments were
just veiled criticisms of her leadership.
ABC continued to drift into more dangerous financial waters.
Matt detected several company
behaviors that benefited ABC financially but appeared to be illegal. When he reported them to Peggy, she hesitated
to act. Resolving them would call for
financial resources that ABC lacked, she said, and acting could endanger ABC’s
future good works. In addition, she felt
that his persistent demands for correction of the problems constituted a
further challenge to her leadership.
Matt eventually reported his
suspicions to the government agencies charged with enforcement of the
rules. Some of the agencies, who knew
and liked Peggy and the work that ABC did, investigated and then dismissed Matt’s
complaints, but most let them remain unattended in their bureaucratic files.
When Peggy learned that Matt had
made the complaints, she arranged to have him fired for failing to work with
her productively. She acknowledged that Matt
had filed complaints but claimed that she would have fired him anyway for his obstinate
and unprofessional behavior.
Here the Prior Behavior is Peggy’s failure to correct ABC’s downward
slide (whether she could have done so or not) and Matt’s counsel to take action. Then follows a Condition of financial
distress that leads the Subsequent Behavior of possibly illegal actions, Penny’s
failure to cause corrective action, and Matt’s reporting the suspected
violations, which led to his being fired.
In the first case, it would be unreasonable to say that
Penny ended her friendship with Mark for reasons independent of his report to
the police. Likewise, in the second case
Peggy’s decision to fire Matt was dependent on Matt’s reporting to the
possible violations. Just as Penny might
eventually have ended the friendship if Mark pressed her to change her habits,
so Peggy might eventually have fired Matt because she thought he criticized her. But in each case the proximate cause of the
decision was the report to an authority.
The California Whistleblower Protection Act
requires that, once I have shown that my whistleblowing contributed to
HomeFirst’s decision to fire me, the company must prove the termination would
have occurred for legitimate, independent reasons even if I had not blown any
whistles. I can hope that HomeFirst must
prove it would have fired me when it did for reasons independent of my
complaints. In that case, the timing of
the decision on learning of my disclosures and Jenny’s admission that my
whistleblowing moved her to terminate me now rather than later would support my
claim. On the other hand, if the company
needs only to show that they would have fired me eventually because of my
attitude and ways – regardless how my whistleblowing might have depended on my
attitude and ways – the State might shave the requirement based on their
appreciation for HomeFirst’s good work.
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