Whistleblower Opponents: Proof (Part 3)

Whistleblower Opponents:         Proof (Part 3)

Success requires a balance: To build her case against her employer’s wrongdoing, the whistleblower may have to remain employed long enough to become someone who must be attacked.  If she leaves too soon, she may not gather sufficient evidence to prove her complaint.

The need to gather evidence is no less great when trying to prove retaliation against the whistleblower.  In California, like most states, there are two stages to proving the case.  The whistleblower must first show “by a preponderance of the evidence that [whistleblowing] … was a contributing factor in the alleged [retaliation] against the employee.”  If the whistleblower’s evidence makes it appear more likely than not that she was fired in retaliation for whistleblowing, then the “employer shall have the burden of proof to demonstrate by clear and convincing evidence that the alleged action would have occurred for legitimate,  independent reasons even if the employee had not engaged in” the whistleblowing.

Evidence that I presented to Stacey, the State Deputy Labor Commissioner investigating my case, established, I believe, a strong connection between whistleblowing and retaliation:

1.       The HomeFirst CEO’s emails in the few hours after I disclosed on March 25, 2014 that I had blown the whistle on the County overbilling and the bid collusion issues documented the Board’s initial intent to fire me for insubordination in response to my disclosure.

2.       The emails described the Board’s shift, following discussions with an attorney, from immediate termination based on insubordination to a termination in July 2014 based on my inability to work with the team.

3.       The CEO’s April 7, 2014 “transition plan” document for the Board described firing me as a way to minimize the danger of future whistleblowing and unpleasant disclosures during the upcoming audit.

4.       The CEO’s written reprimand in response to my follow-up investigation of the food handler card issue in May 2014 connected retaliation to the possibility of future external whistleblowing, which I did just before being fired.

5.       The CEO and Treasurer fired me a week after I identified the payroll tax and minimum wage issues and after I informed the chair of the Audit Committee that I had reported the payroll tax issue to the State.

This all seems to me to amount to convincing proof regardless of HomeFirst’s claims that I was difficult to work with.  Still, all whistleblowers think that, I’m pretty sure.  I try to imagine how my proof could fail to convince.

The first three evidentiary elements relied on the CEO’s emails, which my old attorney Jaffe had claimed were the product of “unclean hands” and would kill my case if HomeFirst found out about them.  Stacey hinted at the same issue, asking whether I had a right to view them.  I answered Stacey’s question, perhaps well enough.  A risk remained that she could refuse the email evidence, cutting cut short her investigation and helping her reduce the many cases on her desk.

A more common approach to proving the connection between company actions and whistleblowing is temporal proximity.  HomeFirst’s attorney had advised the board to fire me immediately after my March 2014 disclosure to escape additional damage I might cause by disclosing more violations.  Sometimes whistleblowers are fired quickly after their disclosure, but usually they are subjected to other more covert forms of retaliation first.  The whistleblower reacts to retaliations and the unethical culture, and the company contends that it terminated her because of her reactions and not the earlier whistleblowing.  Two months passed between my March email and my termination; they decided to fire me but did not do it, weakening that temporal connection.

The last three issues – food handler cards, payroll taxes, and minimum wages – came up in the last two or three weeks before my termination, again signaling a temporal connection.  Like most of the other complaints, these were not officially validated.  Stacey asked whether the bid collusion complaint was validated.  That the Department of Justice did not see a violation of federal law should not matter to her as long as I was being reasonable in making my complaint, as required by the State of California (unlike Texas, for example).  She did not, however, ask me why I thought my complaints, even if lacking official validations, were reasonable.

She also wondered whether I was obliged to give the company a chance to fix the problems before I reported them externally.  That is a requirement in some states, like New Hampshire, but not in California.  The question seemed to me consistent with her devil’s advocate contention that I violated my duty of loyalty to HomeFirst by pressing issues that harm the company.  While that application of duty of loyalty appears unsupported in California whistleblower law, it finds favor in some popular and academic literature, especially when the employer does not get all the time it wants to repair its wrongdoing.

After Foucault, you might suspect that the legal system is an instrument of power in society, a worrisome possibility for whistleblowers who lack power.  Judgments, as well as rules, governing the admission of evidence determine what can be proven.  The resources of investigating agencies and their relationship with the accused company affect the interest they show in evidence they receive and how they understand that evidence. 

When Jaffe assured me that I had a case against HomeFirst, I assumed that my evidence would prove the truth of my complaint to any reasonable person.  It turned out that truth was not in Jaffe’s game plan.  Once the plausibility of my claim was established everything devolved to negotiation.  He shunned discovery, witnesses, evidence, and even mediation.  He needed only for HomeFirst to agree to pay out the legal cost it could expect in a suit, which neither he nor HomeFirst’s attorney wanted.

Proof of the whistleblower’s claim is not a demonstration that the claim is correct or true in any absolute sense.  Instead, proof is negotiated where little can be known with certainty.  Political authorities evaluate evidence based on reason and knowledge, but also biases and allegiances.  On some occasions, the whistleblower’s complaints are sustained, but far more often they are not.