D.C. Court Allows Whistleblower’s Court Case to Proceed!

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A federal court in Washington D.C. has denied an employer’s motion to dismiss the claims of a female executive at a non-profit company who was fired after she complained about gender discrimination. Read the Opinion & Order here.  In this case, the executive alleges that she experienced discrimination in the form of reduced responsibility and authority after she started reporting to new, male supervisors.  She also claims to have been subject to “denigrat[ing]” language and physically intimated by her male coworkers.  When asked about the situation by a coworker in human resources, the plaintiff agreed with others’ characterizations that there was an “old boys’ network” at the organization.  She also allegedly reported what she believed was a conflict of interest on the part of certain board members.  She was subsequently terminated, less than two months after making her statement to Human Resources.  The employer stated that she was let go because of her differences with the new direction of the organization.

The executive in this case made an interesting claim regarding the retaliation she believes she was subject to as a result of her complaint, and one that is rarely successful.  She claimed that while she did not have a formal contract with her employer, two provisions in the employee handbook created an “implied contract.”  That is, the employee argued that the company represented to her in its whistleblower and employee grievance policies that employees would not be subject to discipline for complaining about workplace conditions or “improper activities.”  She claimed that she relied on these representations in making her statements, and that the employer had violated the terms of the implied contract by terminating her employment.

These claims tend not to be successful, because employers usually put some language in their handbooks stating something along the lines of “THIS IS NOT A CONTRACT WE CAN DO WHATEVER WE WANT ALL THE TIME.”  For example, in a 2008 Connecticut case brought by an employee who was terminated without the progressive discipline detailed in the employee handbook, the court held that the handbook clearly stated that it was not a contract, and so the employee could be terminated at will.  Aponte v. Alinabal, Inc., 2008 Conn. Super. LEXIS 1505.    In this case, the employer had included similar non-contract language in the handbook relied upon by the employee, but the court held that it wasn’t effective as a way to get out of its obligations to the employee.

This is an excellent holding.  Why should employers get the benefit of policies that they don’t have to abide by?  You can be sure that if the employee violated these policies, she would be terminated.  Employers can hold out their employment policies to attract prospective employees, show how great a place it is to work, and to govern employee conduct.  If an employer states in its own document that it will not take action against an employee speaking out in good faith about working conditions or improper conduct, it should be held to that representation.  Let’s hope we see more decisions like this one from Connecticut courts.

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