Courts and administrative tribunals have construed whistleblower protection laws to protect employees from adverse employment actions because they are suspected of having engaged in protected activity.
Whistleblower Protection Act Liability Based on Perceived Whistleblowing
The Whistleblower Protection Act protects an individual perceived as a whistleblower, regardless of whether the individual actually made a disclosure. “The perceived whistleblower doctrine prevents a supervisor from taking retaliatory action against an employee, even if the employee’s disclosure is later found unprotected, so long as the retaliation was taken in response to the disclosure.” Montgomery v. M.S.P.B., 382 Fed.Appx. 942 (2010). See also Schaeffer v. Dep’t of the Navy, 86 M.S.P.R. 606, 617 (2000) (“One who is perceived as a whistleblower is entitled to the protections of the WPA, even if he has not actually made protected disclosures.”).
In analyzing perceived whistleblower cases, the MSPB focuses on whether the agency officials involved in the retaliatory personnel actions believed that the employee made or intended to make a disclosure evidencing the type of wrongdoing listed under Section 2302(b)(8). Whether the employee actually made a protected disclosure is irrelevant. The employee must prove that the agency’s perception (not the employee’s protected conduct) was a contributing factor in the personnel action. King v. Dep’t of the Army, 116 M.S.P.R. 689 (2011).
In an August 2019 decision in Mount v. DHS, the First Circuit extended the perceived whistleblowing theory to a perceived assistance WPA retaliation claim brought under 5 USC § 2302(b)(9)(B) (prohibiting retaliation for testifying for or otherwise lawfully assisting any individual in the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation).
Liability for Retaliation Against a Perceived Whistleblower Under State Whistleblower Protection Laws
In 2015, a whistleblower was awarded $1 million at trial in a case brought under the Washington State Employee Whistleblower Protection Act where management retaliated against him because they assumed that he blew the whistle on timecard fraud. And in an action brought under the FLSA’s anti-retaliation provision, the Eighth Circuit held that employees had a retaliatory discharge claim where the employer retaliated against them based on the employer’s mistaken belief that the employees reported FLSA violations. Saffels v. Rice, 40 F.3d 1546, 1549 (8th Cir. 1994). See also Brock v. Richardson, 812 F.2d 121 (3d Cir. 1987).
OSHA Whistleblower Protection Law Protects Perceived Whistleblowers
The perceived whistleblowing theory of liability has been applied in several cases arising under the whistleblower protection provision of the Occupational Safety & Health Act, 29 U.S.C. § 660, which prohibits an employer from terminating employees for filing complaints or otherwise exercising rights afforded by the Act, including informing OSHA about unsafe conditions.
For example, a South Carolina district judge held that an employer violated the OSH Act when it fired three employees because the employer could not figure out which of the three employees had filed an OSHA complaint. Donovan v. Peter Zimmer, Inc., 557 F.Supp. 642, 652 (D.S.C. 1982). And the Eight Circuit has held that an
“employer that retaliates against [an] employee because of [the] employer’s suspicion or belief that the employee filed an OSHA complaint has  surely committed a violation . . . to protect employees from adverse employment actions because they are suspected of having engaged in protected activity is consistent with the general purposes of the Act and the specific purposes of the anti-retaliation provisions.”
In 2019, Judge Goldberg rejected a challenge to a jury verdict in an OSH Act retaliation case in which the jury was instructed on the “perception theory” of liability. See Perez v. Lloyd Industries,Inc., (E.D.Pa. Aug. 1, 2019). In particular, the jury was given the following instruction:
In order to engage in a protected activity, the employee does not have to directly institute the proceedings and it is sufficient if he sets into motion the actions of others which result in perceived — an OSHA [proceeding]. Additionally, termination can be found to be retaliatory where the terminated employee did not himself engage in a protected activity, but had a close relationship with the individual who did. Finally, retaliation can be found based upon the mistaken belief or perception that the employee had engaged in a protected activity.
The jury ruled for the whistleblowers, and the employer moved for a new trial and/or judgment as a matter of law, arguing that the Secretary of Labor failed to establish that Mr. Spillane, one of the plaintiffs, engaged in a protected activity because he did not personally file a complaint with OSHA until after his termination. The Secretary asserted that the OSH Act regulations provide that protected conduct includes actions that “set into motion activities of others which result in proceedings under or related to the Act.” Although Mr. Spillane did not file an OSHA complaint, he took pictures of a machine that amputated an employee’s fingers, and the photos led to an OSHA investigation. When OSHA arrived at the worksite for an inspection, the first thing that they wanted to look at was the machine that Mr. Spillane photographed. The company fired Mr. Spillane five days after the OSHA inspection. The court held that it was sufficient for the employer to have believed that Mr. Spillane engaged in protected conduct.
Mine Safety and Health Act Bars Retaliation Against Perceived Whistleblowers
In Moses v. Whitley Dev. Corp., 4 FMSHRC 1475 (Aug. 1982), aff’d, 770 F.2d 168 (6th Cir. 1985), the Federal Mine Safety and Health Review Commission construed the Mine Safety and Health Act as barring retaliation against perceived whistleblowers. Moses was fired, and the Judge below found that the discharge occurred “because the operator thought the complainant had engaged in protected activity, even though he had not.” 4 FMSHRC at 1480. We acknowledged that “a literal interpretation … might require the actual or attempted exercise of a right before the protection of section 105 comes into play,” but we nevertheless found a violation. Emphasizing the effect of the employer’s action on the willingness of miners to exercise their rights, the FMSHRC pointed out that:
Miners would be less likely to exercise their rights if no remedy existed for discriminatory action based on an operator’s mistaken belief that a miner had exercised a protected right …. [E]mployees could reasonably fear that they might be treated adversely on the basis of suspicion alone, and thus would seek to avoid even the appearance of asserting their rights.
Federal and State Anti-Retaliation Laws Bar Reprisal Against Perceived Whistleblowing
Federal and state anti-retaliation laws protecting disclosures about discrimination bar retaliation against perceived whistleblowers. See Fogarty v. Boles, 121 F.3d 886, 890 (3d Cir. 1997) (“Because [the retaliatory discharge provisions of the NLRA and FLSA] are aimed at eliminating an atmosphere of intimidation, the discharge of employees under the mistaken impression that they had participated in protected statutory activity is enough to violate the Acts.”); Brock v. Richardson, 812 F.2d 121, 125 (3d Cir. 1987) (“It is evident that the discharge of an employee in the mistaken belief that the employee has engaged in protected activity creates the same atmosphere of intimidation as does the discharge of an employee who did in fact complain of FLSA violations.”); Murphy v. District of Columbia, 390 F. Supp. 59, 69-72 (D.D.C. 2019)(denying motion to dismiss the plaintiff’s Title VII claim based on “perception theory); Johnson v. Napolitano, 686 F. Supp.2d 32, 37 (D.D.C. 2010)(same); Grosso v. City Univ. of N.Y., 2005 WL 627644 at *3 (S.D.N.Y. 2005) (same); Kurtz v. Caesars Entertainment, Inc., 266 Fed.Appx. 676, 677 (9th Cir. 2008).
Jason Zuckerman, Principal of Zuckerman Law, litigates whistleblower retaliation, qui tam, wrongful discharge, and other employment-related claims. He is rated 10 out of 10 by Avvo, was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” in 2015 and selected by his peers to be included in The Best Lawyers in America® and in SuperLawyers.