Sixth Circuit Rejects Whistleblowing Claims of Quarrelsome Employee

Last week, the federal Sixth Circuit Court of Appeals affirmed the dismissal of whistleblowing claims after a trial on the grounds that the employer was justified in terminating the plaintiff because of repeated interpersonal conflicts.  Ma v. AEP, Inc. No. 15-2105 (6^th Cir. 5-10-16).   The plaintiff had been fired for contributing to a dysfunctional department and us-and-them mentality despite a long history of superior job performance.  She claimed that she was fired for protesting an unsafe working environment.  Following a bench trial, the employer agreed that the plaintiff could not show that it was her safety concerns that motivated her termination.  On appeal, the Sixth Circuit affirmed.

According to the Court’s opinion, the plaintiff’s “engineering talents garnered her recognition for maintaining safety at AEP over her eleven-year career. But interpersonal conflict ultimately overshadowed her technical prowess . . .. Tempers flared and workflow slowed, culminating in a verbal altercation between” her and others after she made a safety complaint against another team and made another safety complaint when they objected.  Notwithstanding coaching on teamwork and professionalism, disciplinary action and an mandatory counseling, she continued  her combative behavior.  After a competing proposal was selected over her suggestion, she claimed it was unsafe and refused to work on it.  Believing that her safety objections was merely a continuation of her us-vs-them mentality, she was terminated.   Following a five-day bench trial, the court found that the plaintiff was fired for interpersonal shortcomings instead of legitimate safety objections.

The Energy Reorganization Act protects workers who report safety concerns from retaliatory termination. See 42 U.S.C. § 5851(a). To this end, the Act places an initial burden on employees to offer preponderating evidence that protected activity contributed to an adverse employment action; if the employee succeeds, the burden shifts to the employer to show by “clear and convincing evidence, that it would have taken the same unfavorable personnel action in the absence of such behavior.”

Despite this heightened burden of proof, the employer was found to have met it in this case (after lengthy and expensive pre-trial discovery and a week-long bench trial).  Despite the fact that the plaintiff was undisputedly fired after expressing protected safety concerns, the employer showed that it would have fired her without those safety concerns based on the manner of her expression.

Here, it was not Ma’s safety reports and LOTIC2 objections that irked colleagues, but rather the aggressive tone with which she delivered them. And testimony showed that colleagues avoided going to Ma with concerns because of her confrontational attitude and unwillingness to accept criticism. AEP elicited sufficient testimony on these points to support the district court’s conclusion that Ma’s inability to talk, collaborate, or otherwise work with peers caused her termination. See Am. Nuclear Res., Inc., 134 F.3d at 1295 (“[A]n employer may terminate an employee who behaves inappropriately, even if that behavior relates to a legitimate safety concern.”).

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.