Can a whistleblower prevail in a retaliation case if they had a performance problem prior to blowing the whistle?

Every case is unique and the outcome of a case depends upon variety of factors, but a prior performance problem is not an insurmountable obstacle to prevailing in a whistleblower retaliation case.  A whistleblower can prevail in a retaliation case even if they had a performance problem or problems prior to blowing the whistle. To prevail in a retaliation case, a whistleblower must show that 1) they engaged in protected activity, 2) their employer took an adverse employment action against them, and 3) the protected activity was a contributing factor to the adverse employment action. See Arnett v. Hilmar Cheese Co., 2018-CPS-00002 at 3 (ALJ Sep. 11, 2018) (citing various whistleblower statutes).

The contributing factor causation standard is favorable to whistleblowers. Under this standard, a whistleblower need only show that their engaging in protected activity in some way contributed to the employer taking an adverse action against them. A contributing factor is “any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision.” Id. (citing Tocci v. Miky Transp., ARB No. 15-029, ALJ No. 2013-STA-071 (ARB May 18, 2017)). If an employee proves that their protected activity was a contributing factor in their employer taking an adverse action against them, to avoid liability, the employer must show by clear and convincing evidence that it would have taken the same action in the absence of the protected activity. Id. at 3-4 (citing 15 U.S.C.A. § 2087(b)(2)(B)(i)-(iv)).

In Arnett v. Hilmar Cheese Co., the ALJ denied the employer’s motion for summary judgment where it had disciplined the employee/whistleblower for repeated performance issues, including issuing him with multiple notices of corrective action. Id. at 4-5. In a coaching session with his supervisor, the employee became argumentative, reported that he did not believe the employer’s fume hoods were safe, and stated that he intended to verify their safety with OSHA. Id. at 2. His employer terminated his employment two days later. Id.

In a motion for summary judgment, the employer asserted that it would have terminated the whistleblower’s employment in the absence of his protected activity due to his repeated performance issues, which culminated in his “argumentative, combative, disrespectful, threatening, and insubordinate” behavior in the coaching session. Id. at 4-5. The ALJ, however, found that there was a genuine issue of material fact as to whether the disclosure about the fume hoods was a contributing factor in the whistleblower’s termination. Id. at 4. The ALJ emphasized that the temporal proximity of two days suggested that the protected activity may have been a contributing factor in the termination, even if the employer acted without retaliatory intent. Id. Further, the ALJ explained that the sooner an adverse action occurs after an employee engages in a protected activity, the more likely it is that the protected activity contributed to the adverse action. Id.

Finally, the ALJ stated that, based on the employer’s explanation of the facts, the employee’s behavior during the coaching session, where he became “argumentative . . . and insubordinate” did not seem to be particularly egregious or any worse than his prior conduct. Id. at 5. Therefore, the ALJ held that the evidence was insufficient to support the employer’s assertion that the report about fume hoods in no way contributed to the employee’s termination. Id. The ALJ concluded that without making a determination on the credibility of the parties involved, it was inappropriate to conclude that the employer had proven by clear and convincing evidence that it would have terminated the whistleblower in the absence of his protected conduct. Id.

In denying the employer’s motion for summary judgment, the ALJ confirmed that a whistleblower may prevail in a retaliation case even where they have had prior performance issues. While an employer may try to cite an employee’s performance as the basis for an adverse action, that employer must prove that the protected activity in no way contributed to the action. A whistleblower may prevail even where the employer has documented various and repeated performance issues; for the contributing factor causation standard only requires that the protected activity played some part in employer taking the adverse action. Especially where, as in Arnett, temporal proximity or another aspect of the case implies causation, an employee can still prevail.

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