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Whistleblower shows link between report he was pressured to falsify data and firing

By Lorene D. Park, J.D.

A general manager’s comment to a lab-quality technician that “we’re all going to be on the street—no, you’re going to be on the street” if the employee refused to get “creative” and falsify test results forecasted how the employer would respond if the employee refused, concluded the Eighth Circuit, reversing summary judgment on the employee’s state-law whistleblowing claim that he was fired for reporting the directive to falsify data. The timing of the employee’s termination only 27 days later also supported a finding of a causal link (Sellner v. MAT Holdings, Inc., June 15, 2017, Benton, W.).

The employee worked as a lab-quality technician for a company that manufactures and markets air compressors and tools. His primary responsibility was to conduct lab testing and report the results to supervisors. On his first day, the employee was told that one of the products, a pump, had serious problems with oil leakage during testing. After the company started working with a major retailer to include the pump in a line of products, the employee was assigned to complete testing as to whether certain changes had improved the pump.

Told to falsify results. In March 2012, the employee delivered the results of his tests and the lab manager concluded his results were “sh*t” and could not be used in any report for the customer. The facility’s general manager (GM) later came to the employee’s office and said the customer had called the company “on the carpet” for overstating the performance and quality of the pump. The GM then told the employee to produce a report showing no problems with the pump. The employee protested that he wouldn’t falsify data and it would be illegal. The GM allegedly responded that he should “get creative” with his documentation. A lab tech overheard part of the conversation and confirmed the employee’s version.

Whistleblowing. After continued pressure from the GM, the employee called the Minnesota Department of Labor and Industry (MNOSHA), reporting that he was instructed to “doctor up some documentation.” He also filled out an online form. The lab tech swore that “a day or two” later, he told the quality assurance (QA) manager about the MNOSHA report.

Promotion and termination. On April 3, the employee learned that he had been promoted to leadperson. The QA manager recommended it and the GM approved. A week later, the director of HR received an anonymous email accusing the employee of inappropriate conduct. The HR director investigated onsite, interviewing personnel. Several employees met with her and made allegations about the employee’s workplace behavior. The employee met with her and reported that he was asked to “fudge test results out of the lab when the units were failing to save” a contract with the major retailer. The next day, the employee was fired, without having received the promotion or pay raise he was expecting.

The company asserted that he was fired for unacceptable conduct, including “inappropriate and offensive statements made to and about his colleagues, and inability to maintain positive and productive relationships.” The employee filed suit, alleging wrongful termination under the Minnesota Whistleblower Act (MWA). The district court granted summary judgment against his claim and he appealed.

Triable issues on causal connection. Reversing, the appeals court explained that falsifying test data is a state-law violation and reporting it is protected conduct under the MWA. The disputed issue was whether there was sufficient evidence of a causal connection between the employee’s MNOSHA report and his termination. Here, that evidence was provided by testimony that, when the GM pressured the employee to get “creative” in documenting the pump’s performance, the GM said “we’re all going to be on the street—no, you’re going to be on the street” if the employee refused. Taking all inferences in the employee’s favor, the GM’s remark forecasted how the employer would deal with the employee’s refusal and provided a specific link between his protected activity and his termination.

The court rejected the employer’s assertion that the comment was too remote in time from the employee’s discharge. The 27-day gap between his MNOSHA report and his firing was close enough to raise an inference of retaliation. And while the employer claimed that intervening events—the promotion and raise decisions that were supported by the GM—broke the causal chain, the court noted that these actions were never taken and that the GM’s support could be used as evidence that the proffered explanation for firing the employee had no basis in fact.