Whistleblower’s Opponent: Time

Whistleblower’s Opponent:  Time

Time plays against the whistleblower throughout her project.  She raises an issue to her manager.  The manager replies, we will look into that.  We must study it.  The study takes time, but what length is to be reasonably expected?

HomeFirst’s CEO Jenny wanted to discuss the County overbilling with officials; nearly three years later the money was not repaid.  Jenny wanted to study the residential licensing violation; three months later she and the Board decided to talk to an attorney, but three months after deciding no action had been taken.  In December 2013, HomeFirst met with HUD to discuss the 2006 $1.2 million overbilling; then in February 2016, HomeFirst’s new management met with HUD to discuss the 2006 $1.2 million overbilling – no repayments had been made in nearly ten years.

When we discussed the EHAP loan violations in June 2013, Jenny felt the timing was not right to deal with them.  By May 2014 the upcoming audit forced a waiver request to EHAP, but then I was fired.  The payroll tax and minimum wage problems needed to be studied, Jenny and the Audit Committee Chair said; days later Jenny fired me.

Complaints filed with external authorities take months to resolve.  Sixteen months passed from the time I raised the issue of HomeFirst’s misuse of the City of San Jose advance until the City decided to forgive the amount in order to help the company survive.  Eleven months after my complaint to the City about HomeFirst’s minimum wage issue – and two years after HomeFirst’s Audit Chair assured me the issue would be addressed – San Jose’s Office of Equality Assurance is still trying to get information from the company.

The resolutions of whistleblower suits seldom become publicly known due to non-disclosure agreements, but some recent cases indicate how time can pass:

-         Justin Schwartz was fired by California State University in 2009 after complaining that a fellow employee was misusing university funds.  Three years later he received $100,000 in compensation.

-         In 2009 Dennis Smith filed suit against Iowa State University following his termination, which was later judged retaliation in response to grievances and complaints he had filed.  In 2012 he was awarded $1.3 million in damages.  Following appeals, in 2016 the award was reduced to $650,000, but ISU’s liability for Smith’s $368,000 of legal fees is still being disputed.

-         Anthony Tenny was fired in 2010 after he reported unsafe work conditions to OSHA.  In 2016 he was awarded $235,000 to be paid by his former employer, Clearwater Paper Corp.

-         Barbara Pace complained that a co-worker intended to misuse company funds.  She was fired in January 2012 and Ms. Pace filed a whistleblower complaint in Michigan.  Four years later the Michigan Supreme Court ruled that she was not protected by the state’s whistleblower protection law because the wrong she suspected, even when based on reasonable information, had not yet occurred.

-         New Jersey police sergeant Richard Duym filed suit in May 2012 claiming that Essex township officials retaliated against him for reporting a superior officer’s failed firing test.  Three years later an appeals court upheld a jury award of $455,000 in his favor.

-         Ocie Chaisson filed her whistleblower complaint in May 2013 alleging that the Jefferson County, Texas Sheriff’s office had inappropriately promoted an employee and it discriminated against black female candidates.  After three years of back-and-forth motions, she dropped her $350,000 suit; her attorney said that she had decided to move on.

Nearly a year and a half after my whistleblower complaint to the State – and three years after I identified the first, still unresolved, HomeFirst violation – the State investigator says she is interviewing witnesses.

When I began my whistleblowing project, I expected company delays.  I grew irritated when days of delays stretched into weeks, but, naively, I expected that government agencies charged with enforcing regulations and agreements would act promptly if the company did not.  Friends advised me that the process would take time, but I expected that my situation would be easily resolved because the facts were clear.  As Jaffe, the attorney I fired after six disappointing months, advised me: I had a case.