Whistleblower Protection Blog : Whistleblower Lawyer & Attorney : National Whistleblower Legal Defense and Education Fund : Whistleblower Protection, Fraud Claims : Washington DC

North American Stainless (NAS) hired Eric Thompson as a metallurgical engineer for its plant in Carroll County, Kentucky, in 1997. In 2000, NAS hired Miriam Regalado.  Soon, Miriam and Eric became engaged.  They are today married to each other. In September 2002, Miriam filed a charge with the EEOC claiming that NAS discriminated against her on account of her gender. On February 13, 2003, EEOC notified NAS of the charge. On March 7, 2003, NAS fired Eric.  NAS claims that it discharged Eric because of his performance. Eric filed his own EEOC charge claiming that he was fired in retaliation for Miriam's complaint.

A district court dismissed Eric's complaint holding that he could not sue because he never engaged in protected activity. On appeal, a three-judge panel of the Sixth Circuit held that Eric could sue. Thompson v. North American Stainless, LP, 520 F.3d 644, 645-46 (6th Cir. 2008). Most of the rest of the Sixth Circuit judges disagreed and vacated the panel's decision. After they voted 10-8 to dismiss Eric's retaliation claim, the Supreme Court agreed to review it.

At the Supreme Court, my hero, Eric Schnapper of Seattle, Washington, wrote a focused brief for Thompson explaining why the law depends on allowing retaliation claims for all aggrieved persons. Attorney Michael Foreman of University Park, Pennsylvania, led a team of lawyers in preparing a friend-of-the-court ("amicus") brief for various civil rights organizations. Congratulations to them all for this outstanding result.

Paige sued Coyner, Warren County and the Port Authority. The district court dismissed in part on grounds that the county was not responsible for the decision of Bunnell Hill to fire Paige. The Sixth Circuit focused on Conyer's actions as alleged in Paige's complaint.  Unlike other cases in which citizens sought to make private entities liable for acting in concert with government officers, in this case Paige sought to hold the local governments and their official responsible for their own actions. Interfering with Paige's employment was certainly "severe enough to deter a person of ordinary firmness from speaking at public meetings," the Court said. That Bunnell Hill cited Conyer's statement, combined with the close timing, is enough to find that Paige's First Amendment activities caused her discharge. The Court also held that whether Paige's discharge was "reasonable foreseeable" is a fact question the jury can determine. The Court repeatedly noted that Paige alleged Conyer's statement about her using Bunnell Hill's name in her public comments was false. I think that Paige should have a good case of retaliation even if Conyer's statement was true. Either way, a government official's call to a manager to get a person fired for exercising First Amendment rights is wrong. As the Sixth Circuit concluded, "What they [public officials] cannot do, however, is take action in order to punish a citizen for exercising his or her constitutional rights." Judge Boggs, concurring, noted that the Sixth Circuit had analyzed a similar claim in which the actionable speech did not have to be false or defamatory if it would "threaten [the palintiff's] economic livelihood directly or indirect." Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 724 (6th Cir. 2010). District Judge McCalla also concurred and added that Bunnell Hill's situation in response to Conyer's statement could be considered "state compulsion" such that it would be a "state actor." The case is Paige v. Coyner, 09-3287 (6th Cir. 7-26-2010). Congratulations to attorney Stephen A. Simon of Tobias, Kraus & Torchia in Cincinnati, Ohio, for the victory.

Here is more of the Sixth Circuit's opinion:

To hold that the doctrine of equitable tolling should be applied in this case is clearly in keeping with the principle underlying our opinion in Andrews, the cases upon which it relied and the opinions that it spawned: that a complainant should not be punished for missing a filing deadline when he is affirmatively misled in a manner that causes the delay. As we observed in Jones, equitable tolling is appropriate when “congressional purposes [are] effectuated by tolling the statute of limitations in given circumstances.” 747 F.2d at 1040 (quoting Burnett v. New York Central R.R. Co., 380 U.S. 424 (1965)).

The purpose of the Transportation Act’s employee-protection provisions is “to encourage employee reporting of noncompliance with safety regulations governing commercial motor vehicles.” Brock v. Roadway Express, Inc., 481 U.S. 252, 258 (1987). When a statute permits a complainant’s representation before an agency by counsel and counsel has informed the agency that he represents the complainant and has provided the agency with his contact information, the complainant may reasonably expect that counsel will at least be copied on the agency’s communications to him. When the agency sends its findings directly to the complainant with a clear indication that his counsel has contemporaneously received those same findings, but does not actually notify counsel until after expiration of the statutory period for filing objections, the refusal to permit a late objection is unjust. This injustice threatens the purposes of the Act’s employee-protection provisions, and a grant of equitable tolling in Smith’s case is consistent with effectuating them.

I particularly appreciate the Court's focus on the purpose of the Surface Transportation Assistance Act (STAA).  Many bad whistleblower decisions would go in our favor if the courts shared this type of focus on the statutory purpose.

Harry Smith's prospects of prevailing on remand are pretty good when one considers that he has already prevailed after a hearing against CRST's contractor, Lake City Enterprises. You can read the 153-page decision of the Administrative Law Judge (ALJ) here. I can also provide you with:

• My brief
• DOL's brief
• CRST's brief
• My reply brief
• The Sixth Circuit's opinion

HVA hired the Alonsos in July 2005. Before hiring them, HVA asked them to fill out an employment application.  The last page contained a notice of an internal grievance procedure for employment-related disputes, and a six-month limitations period for any employment-related claims. Both Alonsos signed it. Only after they were hired did the Alonsos receive HVA's policy manual that provided the details of the grievance process. HVA then had them each sign a receipt for the policy manual.

Two years later, Alan Alonso joined the Army National Guard. Although HVA approved his request for leave to attend training, it checked with the National Guard and learned that he did not attend one of the trainings. Alan also filed a health and safety complaint with the Michigan Occupational Safety and Health Administration (“MIOSHA”). When Alan suffered a medical emergency while taking prescribed medication, HVA fired him, allegedly for misrepresenting his training schedule and for working while medicated. HVA's grievance review board upheld the termination. Meanwhile, Kimberly Alonso asked for leave under the Family and Medical Leave Act (FMLA) for her pregnancy. After she returned to work, she claimed she suffered a hostile work environment, and retaliation for filing a complaint with the Equal Employment Opportunity Commission (EEOC). Alan and Kimberly filed suit together claiming that Alan's termination violated the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4323, and related Michigan laws, and that Kimberly suffered retaliation in violation of FMLA.

From the text of the opinion, I think the Court was moved by the fundamental unfairness of HVA's grievance review board policy. It provides that the final step is an arbitration before a board of five people.  The company picks two, and the employee picks two, but one of the employee's two selections must be a manager or supervisor at HVA. The company and the employee would pick the fifth member together, but the policy already guarantees that three of the five members were HVA managers.

Still, the decision is remarkable for recognizing a limit on how far companies can push their employees to give up their rights to go to court.  Too often, whistleblower claims are lost because crafty employers have required all their employees to sign agreements giving up their right to sue in exchange for some management-selected arbitration process. We need a national law to forbid such clauses, such as the Arbitration Fairness Act (AFA), currently pending as HR 1020 and S 931. It is curious, though, that the Court chose to make its opinion unpublished.  Without publication, it will be harder for employees to use it as authority in other cases.

HVA's attorney told the National Law Journal that HVA is prepared to contest the Alonso's claims on the merits, and that there was case law saying waivers were valid. The case is Alonso v. Huron Valley Ambulance Inc., 2010 WL 1644233 (6th Cir. April 26, 2010) (unpublished). Congratulations to attorney Heidi Sharp of Clinton, Michigan, for achieving this precedent-setting legal victory.