How Does Causation Factor into a Whistleblower Claim?
In whistleblower cases, the employee’s protected activity usually consists of clear and tangible conduct. Disputes about this element of the claim depend on whether the employee reasonably believed she was objecting to unlawful conduct and expressed that opposition clearly enough. Similarly, the adverse action element is generally a clearly identifiable tangible action or course of conduct. The crux of many cases is thus whether the adverse action was caused by the employee’s protected conduct.
Establishing Causation in Whistleblower Cases
One indispensable aspect of showing the requisite causal connection is proof that the employer knew about the whistleblower’s protected activity because, in general, there can be no causation without knowledge. That rule is easy to state, but because the courts come to different conclusions – depending on the particular facts of a case about who needs to know what to satisfy the standard of proving causation – it is less easy to apply in some situations.
Generally, if one of the individuals responsible for a whistleblower’s termination knew of her protected activity, that is sufficient to find a causal connection. [See Leshinsky v. Telvent GIT S.A., 942 F. Supp, 2d 432, 450 (S.D.N.Y. 2013).] However, if no supervisor was aware of protected activity, there is not sufficient evidence to support an inference of a causal connection. [See Boyd v. Accuray, Inc., 873 F.Supp.2d 1156, 1170-71 (N.D. Cal. 2012).] As one court has emphasized, “the issue of a defendant’s knowledge is a question in its own right” and “who knew what, and who did what” are critical questions in establishing a causal connection. [See Weist v. Lynch, 15 F.Supp.3d 543, 565 (E.D. Pa. 2014).]
Two recent decisions illustrate some of the nuances surrounding this causation inquiry.
Conrad v. CSX Transportation
In Conrad v. CSX Transp., Inc., 2016 WL 3006097 (4th Cir. May 25, 2016), the 4th Circuit affirmed summary judgment for the employer in a case under the Federal Railroad Safety Act (FRSA), 49 U.S.C § 20109, because the decision-maker did not have knowledge of the employee’s protected activity.
The focus in this case was on who had the required knowledge. Conrad, who served as local chairman of the United Transportation Union Local 340, reported an Hours of Service Act violation and, in a separate incident, advised an employee not to enter a railroad yard in western Pennsylvania because to do so would constitute a safety violation. Conrad told the relevant trainmasters about his actions in these two incidents. Subsequently, Conrad was cited for serious safety violations of his own, and he challenged these disciplinary actions, claiming that they were taken in retaliation for his protected activities as chairman of the local union.
CSX prevailed on summary judgment on the ground that the supervisors who observed Conrad’s safety violations and disciplined him were not aware of his prior protected activity. Conrad argued that the knowledge requirement of the FSRA is satisfied if any supervisory employee at the company knew of his protected activities at the time he was disciplined, but the 4th Circuit rejected that argument. The court held that the “knowledge” relevant for a retaliation claim under the FRSA “must be tied to the decision-maker involved in the unfavorable personnel action” and that Conrad had failed to show such knowledge. The four employees who observed Conrad’s safety violations and disciplined him swore that they were unaware of his reports of safety concerns, and the two trainmasters to whom Conrad reported the safety issues swore that they had no role in his subsequent discipline.
Although Conrad argued that the chain of command could support an inference of knowledge on the part of the decision-makers in his case, the court refused to engage in such “unsupported inferential leaps” in the absence of actual evidence.
Barrick v. Parker-Migliorini International
Whistleblower retaliation claims under the False Claims Act (FC), 31 U.S.C. § 3730(h), often present an added hurdle for plaintiffs who may have made confidential complaints to government agents and, as a result, have a more difficult time establishing that their employers knew of those complaints. But even if the employer does not know that a plaintiff had filed a qui tam action or reported an FCA violation externally, at least one court previously held that employer knowledge can be established by showing the employer knew the plaintiff had disclosed facts that would underlie an FCA claim. [See Smith v. Clark/Smoot/Russell, 796 F.3d 424, 433-434 (4th Cir. 2015) in which the defendant knew the plaintiff had pursued an investigation with the Department of Labor based on facts essentially the same as those supporting his qui tam claim).]
Recently, another court has expanded on that rationale. In Barrick v. Parker-Migliorini Intern. LLC, 2016 WL 3029933 (D. Utah May 25, 2016), the Utah District Court refused to dismiss a complaint of retaliation under the FCA because it was plausible, based on the facts in the complaint, that the decision-maker knew that the plaintiff, Brandon Barrick, was aiding the FBI in its investigation before firing Barrick. The focus in this case was on what the employer knew rather than who had the required knowledge.
The court dismissed Barrick’s underlying FCA reverse false claim action because, although Barrick had alleged the defendants engaged in dishonesty, fraud and a clearly illegal smuggling operation designed to export banned U.S. beef into China and Japan, he had not alleged that the defendants were avoiding a fee payable to the U.S, so there was no FCA violation.
But, in considering Barrick’s FCA retaliation claim, the court noted that after Barrick filed his original FCA complaint under seal and provided a copy to the government, the FBI initiated a criminal investigation into the defendants’ businesses. Barrick aided the FBI investigation, including by wearing a hidden recording device during conversations with the defendant’s CFO. The FBI interrogated the CFO about facts provided by Barrick. The court agreed with Barrick that it was plausible the CFO had knowledge that Barrick was aiding the FBI in its investigation, thus supporting his FCA retaliation claim that he was fired because he had engaged in that protected activity. Note that, at this stage of the proceedings, the defendants apparently did not contend that the CFO was not involved in the decision to fire Barrick, so the issue resolved in the Conrad case was not presented here.
Both of these cases demonstrate nuances regarding the inquiry of causation in whistleblower claims that allege retaliation against employees who engaged in protected activity. When determining whether the plaintiff is able to satisfy the standard of proving causation, courts will consider the facts surrounding who within the organization knew what information.