Figuring Who Is Right in Whistleblower Cases
Suzanne
E. Esserman had worked for 23 years at the Indiana Department of
Environmental Management (IDEM) when she was made a Senior Environmental
Manager in December 2011. In her new
role, she reviewed planned reimbursements to residents for costs associated
with the cleanup of underground contamination.
Esserman got a new boss in July 2012, and he put her on a performance
improvement plan three months later. The
problem, as he saw it, was she wasn’t working fast enough to complete her
assignments.
During early 2013, Esserman was out on medical leave for
surgery. When she returned to work in
June, she was assigned a monthly review quota.
She went out on leave again in September and October. In December, the month before she was fired,
she exchanged
snarky emails with her boss: he told her to speed it up; she replied that
the taxpayers would pay too much for the cleanups – she pointed to one nearly $1,000
adjustment – if she didn’t continue her thorough reviews, but thanks for your
feedback.
IDEM wrote that she was terminated in January 2014 for failing
to meet work expectations, and it opposed her request for unemployment benefits. The Indiana Department of Workforce
Development rejected Esserman’s application, noting that she had failed to meet
her quotas because her investigations went beyond what her employer asked her
to perform. Esserman argued that she
always gave her best effort on the job and she could have been held personally
responsible for submitting false claims if she believed that the planned payments
were not properly reviewed before they reached her desk.
The Indiana Court of Appeals wrote that, like all employers,
IDEM needed to decide on an appropriate balance of efficiency and thoroughness
in areas like Esserman’s. But estimation of
that balance is often controversial. In light of Esserman’s 25 years of service,
the Court
decided that IDEM had failed to meet its burden of proof that Esserman should
have understood that her conduct violated her duty to her employer. It warned the parties, however, that a claim
for unemployment benefits should not be confused with a wrongful termination
lawsuit.
After Esserman was fired, she did sue for wrongful
termination under Indiana’s False
Claims and Whistleblower Protection Act and the State
Employees’ Bill of Rights. The suit
was complicated by the fact that no false claims were made or even attempted. The trial court accepted IDEM’s argument that
the Act applied only to private employees, not to someone in Esserman’s
position. Her appeal for reconsideration
was accepted, and the case
is on its way to being heard in the Indiana Supreme Court.
A key question in Esserman’s whistleblower complaint is whether
IDEM was misusing government funds. If
it was, then her objections would be protected activities and she may succeed
in her lawsuit.
The answer hinges on the balance issue raised in her unemployment claim dispute: if the expected cost of making excessive payments exceeded
the social benefit of achieving complete payment accuracy, then IDEM arguably did
misuse state funds by diverting Esserman from her personal mission to get it
right. On the other hand, if the cost of
exceptional accuracy outweighed the probable benefits, then IDEM acted
reasonably.
Many whistleblower cases involve this problem of finding a fair
balance. If, for example, Wells
Fargo’s sales goals and control systems – however faulty they have been
found by press, courts, and government agencies – produced (as the bank effectively
claimed) greater social benefit, in the form of new services and greater business
effectiveness, than social costs, then employee complaints of wrongdoing amounted
to a misunderstanding of the nature of that balance. Or if, as the federal
government claims, the NSA surveillance techniques exposed by Edward
Snowden provided social benefit (e.g., in fighting terrorism) that outweighed
their social cost (e.g., loss of privacy), then Snowden misperceived the balance.
My lack of success in arguing my complaints against HomeFirst
may imply that I misread the balance. Some
authorities clearly weighed the factors differently than I did: The Department
of Justice attorney warned that the DoJ didn’t like to hurt companies that
did good; neither Santa
Clara County nor HUD
wanted to risk stopping the company’s good work by demanding the return of
improperly obtained money. The California
licensing department and the Santa
Clara County food inspection group both allowed the company to explain how
it had fixed the problems that I identified.
Powerful organizations are constantly playing that balance, and they rigorously defend their view of the scale[1].
HomeFirst echoed the conclusion of Professor Sissela Bok[2]
when it
claimed that my allegations of the company’s misdeeds were offensive and I
had no right to suppose that I was right in my allegations.
As social complexity deepens and groups grow intensely interconnected,
more competing perceptions of the proclaimed benefits and charged costs must be
weighed. Multiplying laws and
regulations provide an ample context for disputes; expanding government
purchases of goods and services unaccompanied by a commensurate investment in resources
to test the fairness of the balances leave the determination to the most
powerful.
Whether or not the complaint of Suzanne Esserman, me, or any
whistleblower is justified in an unbiased court – if such a place can be found
– should not be our determining concern.
What counts for the individual and society is our independent assessment
of benefits and costs of organizational actions.
Organizations already enjoy great power to
wreak havoc on individual lives. In judging
cases of retaliation against whistleblowers, the scale must be weighted to
favor the whistleblower; we should not pretend that failing to favor the whistleblower
is in any way fair.
[1]
Cf. Alford, C.
Fred. Whistleblowers: Broken Lives and Organizational
Power. Ithaca, NY: Cornell University. 2001
[2] “The
whistleblower hopes to stop the game; but since he is neither referee nor
coach, and since he blows the whistle on his own team, his act is seen as a
violation of loyalty.” Bok, Sissela. “Whistleblowing
and Professional Responsibilities.” In Ethics Teaching in Higher Education.
Daniel Callahan and Sissela Bok (eds.).
New York and London: Plenum Press. 1980. 277-295
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