Today, the Sixth Circuit affirmed the dismissal of whistleblowing and public policy claims by the terminated officer of a financial institution who had provided information about misconduct to his supervisors that lead to his former boss being fired.
Hill v. Mr. Money Finance Co., No. 07-3907. The Court found that the plaintiff’s activities were not protected by state or federal whistleblowing statutes or public policy because, among other things, he was fired before he reported the misconduct to government authorities.
According to the Court’s opinion, the plaintiff was hired as a Senior Vice President and was permitted by the company president to work three days each week in the office (since he lived approximately 90 miles away). At some point, he provided about 54 pages of evidence to a member of the Board of Directors about misconduct by the company’s president, including questionable credit card charges (for, among other things, flowers and lingerie), and two questionable loans. This information was forwarded to the CEO and ultimately to outside counsel, which arranged for the president to resign. None of this was reported to any federal or regulatory authorities. That same Board member was eventually hired as the new president and he terminated some of the “perks” of the plaintiff’s position, including his ability to work from home or receive a car allowance. When the plaintiff sought an increase in compensation to reflect the changes, the new president instead arranged for him to interview with other companies that would consider his compensation needs.
The plaintiff then attended a seminar where he learned about Suspicious Activity Reports (SARs) filed with the federal law enforcement and the Treasury Department concerning improper loans. He informed the new president that he believed that the former president’s misconduct was required to be documented in a SAR, but the new president failed to take any action on this information or learn about the SAR process. A few weeks later, the new president decided to eliminate the plaintiff’s SVP job as part of a reorganization. However, before the plaintiff was so informed of the reorganization, he sent a letter to the Board and the bank’s compliance officer about his concern that the bank was required to file a SAR concerning the former president’s misconduct. In particular, he believed it was illegal not to submit a SAR under the circumstances. The bank’s outside counsel refused to disclose whether a SAR had been filed, but responded “that [the plaintiff’s] approach to the situation created ‘disturbing problems’; that Mr. Money has no problem with filing an SAR because it has no reason to protect the resigned [former president]; and that if [the plaintiff] wanted to file an SAR, he should ‘go ahead.’” Apparently unaware that the plaintiff had already raised the issue with the current president, the attorney also expressed displeasure “at [the plaintiff] choosing to ignore ‘the chain of command,’ and suggested that [the plaintiff] ‘manufactured this issue for reasons that have nothing to do with’ filing a SAR.” Nonetheless, the attorney advised the compliance officer to “seek clarification from the Financial Crimes Enforcement Network (“FinCEN”), a division of the Treasury Department, whether an SAR needed to be filed.” The compliance officer sought clarification about one of the two improper loans and was told that it was not criminal misconduct which required a SAR.
Eleven days after informing the Board that he felt a SAR was necessary, the plaintiff was fired in the reorganization based on the needs of the business and his requested compensation. He then provided a letter he had mailed the day before detailing how he felt retaliated against for reporting the prior president’s misconduct when his working conditions had been changed by the current president. Two months later, the plaintiff filed suit and then filed a SAR.
The Court affirmed the dismissal of the plaintiff’s claim that his termination violated Ohio’s Whistleblower statute at Ohio Revised Code § 4113.52. The Court concluded that an employee is only protected “from retaliation ‘as long as he made a ‘reasonable and good faith effort to determine the accuracy’ of each informational element.’” The Court did not believe that the plaintiff satisfied this requirement of the Ohio statute despite evidence that he:
1) “gathered the concerns of multiple employees”; (2) assembled these concerns “into a written report,” which he presented to [the Board member]; (3) sought “additional information” on a credit card account when another employee brought her concerns to him, which entailed “obtaining online account information”; (4) reviewed “approximately 54 pages of MasterCard statements, which revealed the specifics of [the former president’s] activity”; (5) “pulled files to review loans” made to [an] (individual with the Ohio address, whose loan documents were delivered to New Jersey) and [a] singer; (6) “read the statutes relating to embezzlement and bank fraud.”
While the plaintiff “demonstrate[d] that he transmitted the concerns of multiple employees to [the Board member]. However, . . . serving as a “mere conduit” of information does not by itself amount to a reasonable and good faith effort” under the Ohio Whistleblower statute. “[I]t is clear that only those employees in the chain of command – only those “conduits” – who satisfy the requirement to make a reasonable and good faith effort to determine the accuracy of information they received and passed on are protected under the statute.”
The Court also rejected the plaintiff’s argument that he had submitted a written report to the Board member when he assembled the 54 pages of evidence of the misconduct, including his handwritten notes on some of the pages. Rather, the evidence “likewise fails to show that [the plaintiff] sought any information beyond that contained in the statements printed by another employee. He states that he did not know nor seek to ascertain whether the bank conducted an audit on the credit card or exactly how much money [the former president] paid back, if any.” The Court was also troubled by the amount of effort which the plaintiff put into determining whether the misconduct was criminal – or even felonious. “Merely stating in a sworn affidavit that he ‘believed that these serious crimes were felonies’ may conceivably satisfy the requirement that the employee reasonably believed a felony occurred, but it does not satisfy the requirement to make a reasonable and good faith effort to determine the accuracy of that belief. Even if it is not inconceivable that a jury would find reasonable and good faith effort with regard to the first informational component (occurrence of misconduct), it is far less conceivable with regard to the second informational component (criminality of misconduct), and wholly inconceivable with regard to the third informational component (felonious nature of misconduct). Therefore, we affirm the district court’s decision as to [the plaintiff’s] claim under the Ohio Whistleblower Statute, on the grounds that [the plaintiff] did not proffer sufficient evidence to create a genuine issue of material fact as to his reasonable and good faith effort to determine the accuracy of the information he reported.”
The Court also affirmed the dismissal of the federal whistleblowing claims because the plaintiff failed to “establish that his conduct qualifies for whistleblower protection under Federal Whistleblower Statutes [at 31 U.S.C. §5328 and 12 U.S.C. §1831j] , because [he] did not file protected information with the federal agencies specified in the statutes until after Defendants terminated his employment, and his ‘internal whistle-blowing’ to . . . the Board members does not satisfy statutory requirements.” As explained by the district court, “The language of sections 1831j and 5328(a) is clear and unambiguous. If the plaintiff did not report the relevant information, himself or through a conduit, to a federal banking agency, the Attorney General, the Secretary of the Treasury, or any federal supervisory agency, before being discharged or otherwise discriminated against . . . then the plaintiff is not protected by these whistle-blower protection laws.” More pointedly, “[a]lthough [the plaintiff] “had threatened to file an SAR on more than one occasion, and even announced his intent to do so, [he] did not actually file an SAR until after Defendants fired him.” Statutory language is clear that retaliation must follow the provision of information to a specified federal authority.”
The Court likewise affirmed the dismissal of the public policy claim. As explained by the district court: Because the plaintiff “did not report criminal activity within the corporations to anyone outside of the companies with any authority or oversight over the Defendants’ industries until after he was terminated,” [the plaintiff’s] actions “do not fulfill the goals of these statutes or of the public policy behind these statutes.” According to the Court, “[t]he obvious implication of [Ohio decisions] is that an employee who fails to strictly comply with the requirements of [the shistleblower statute] cannot base a [public policy] claim solely upon the public policy embodied in that statute.”
“[T]here is no genuine material issue as to whether [the plaintiff] reported anything outside the company – and as we agreed above, he did not. [The plaintiff’s] conduct did not fulfill the goals of the identified public policies, not solely because [he] did not comply with statutory requirements, but also because [he] failed to report, as required by the clear public policies he identified. Holding that a public policy in favor of reporting crimes requires that a possible crime actually be reported is not at odds with lower court decisions [he] cites in support of his claim.”
For some reason, the Court found distinguishable other public policy claims which protected internal whistleblowers simply because they involved different public policies. Rather “all of [those] cases deal with the policy favoring workplace safety. “
The Court likewise faulted the plaintiff for failing to identify any other specific public policy which prohibited retaliation against employees engaged in his behavior. The Plaintiff “does not match the “source” to the clear policy: we are left guessing as to which of these numerous statutes manifests a clear public policy against the “dismissal of bank employees in retaliation for reporting unlawful conduct by the officers of financial institutions,” let alone what specific statutory language expresses said policy clearly. Even if such a policy were clearly manifest, this claim fails for the same reasons as above – there was no “reporting” of violations to external authorities. Since [the plaintiff] did not establish the clarity element of the tort, whether he has established the jeopardy element is moot.”
Even if the Court did not think much of the plaintiff’s retaliation claims, it dismissed the Defendants’ request for sanctions for pursuing a frivolous claim.
Insomniacs can read the full option at
http://www.ca6.uscourts.gov/opinions.pdf/09a0099n-06.pdf.
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 change or be 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.
