Maximizing Damages in a Whistleblower Retaliation Case

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Damages a Whistleblower Can Recover in a Whistleblower Retaliation Case

Click here to learn more about anti-retaliation protections for SEC whistleblowers under the Dodd-Frank Act and Sarbanes-Oxley Act.

Whistleblower Retaliation Remedies and Damages

Whistleblower retaliation can exact a serious toll, including lost pay and benefits, reputational harm, and emotional distress.  Indeed, whistleblower retaliation can derail a career and deprive the whistleblower of millions of dollars in lost future earnings.

Whistleblowers should be rewarded for doing the right thing, but all too often they suffer retaliation and find themselves marginalized and ostracized.  Federal and state whistleblower laws provide several remedies to compensate whistleblowers that have suffered retaliation, including:

• back pay (lost wages and benefits);
• emotional distress damages;
• damages for reputational harm;
• reinstatement or front pay in lieu thereof;
• lost future earnings; and
• punitive damages.

Whistleblower Retaliation Settlements and Verdicts

Verdict or Settlement	Case Name, Court, and Year	Claim/Statute	Summary
$75M	Jacobs v. Las Vegas Sands Corp., A-10-627691-B (Nev.Dist.Ct. 2012)	Wrongful termination	Former CEO of Las Vegas Sands Corp, Steve Jacobs, was terminated for brining to light “improprieties” in the way the Macau business conducted its affairs.
$34.5M	Carlos Domenech Zornoza v. Terraform Global Inc. et al.	Sarbanes-Oxley whistleblower retaliation	Mr. Domenech, the former President and CEO of Terraform Global, Inc. (Global) and Terraform Power, Inc. (TERP), and Executive Vice President of SunEdison, Inc. (SunEdison) in May 2016 filed a whistleblower retaliation lawsuit under the Sarbanes-Oxley Act (SOX) after TERP, Global, and SunEdison terminated him on November 20, 2015. Weeks before his termination, Mr. Domenech began informing the SunEdison Board of Directors that the then CEO and CFO of SunEdison were misrepresenting to the investing public the true liquidity and financial condition of SunEdison, the parent and sponsor of Global and TERP. Rather than listen to Mr. Domenech’s disclosures or heed Mr. Domenech’s advice about how to turn around SunEdison’s financial condition, TERP, Global, and SunEdison abruptly terminated Mr. Domenech as the TERP and Global CEO and President to silence Mr. Domenech, and removed him as Executive Vice President of SunEdison. Six months after he was terminated, SunEdison filed for bankruptcy. See https://www.hinckleyallen.com/hinckley-allen-prevails-in-34-5-million-sox-litigation/
$25M	Babyak v. Cardiovascular Systems, Inc., Case No. BC601259 (Super. Ct. Cal. 2017)	Whistleblower retaliation	Cardiovascular Systems (NSDQ:CSII) was found liable for approximately $25.1 million in damages in a whistleblower retaliation suit involving a former regional sales manager, Steven Babyak. According to the court filings, Babyak alleged the company terminated him after he raised concerns about issues relating to patient safety and violations of state and federal laws. Babyak worked for the company for 3 years, and was fired on June 1, 2015. On April 24, 2017, the jury awarded Babyak $2.7 in compensatory damages and an additional $22.4 million in punitive damages. Cardiovascular Systems' SEC filing disclosing the verdict be found here.
$20M	Williams v. Wyndham Vacation Ownership., No. CGC-12-526187 (Cal.Super. Ct. 2016)	Wrongful termination	Sales representative, Trish Williams, was terminated after reporting that Wyndham salespeople were preying on older time-share owners to get them to increase their holdings and were falsely telling customers that Wyndham would buy back their ownership stakes if they no longer wanted them.
$13M	Dennis Bruke v. MGH	Wrongful termination	Retaliation for internal whistleblowing about double-booking of surgeons, which increased the amount of time patients spent under anesthesia and increased a patient's risk of complications.
$13M	Brovont v. Overland Park Regional Medical Center	Kansas whistleblower claim litigated in Missouri	A jury found that Dr. Brovont was fired for raising concerns about inadequate ER staffing that he believed endangered patient safety.
$11.1M	Kingston v. IBM	Washington wrongful discharge and retaliation claims	Federal jury found that IBM unlawfully fired sales manager who complained that race discrimination accounted for the significant difference between a Black salesman's commission and a White salesman's commission after both closed similar deals.
$10M	Dr. David Fintan Garavan v. Miami Dade County	Florida Whistleblower's Act (Fla. Stat. Ann. § 112.3187)	Assistant medical examiner alleged that he was fired for raising concern about co-worker running private business through a county lab.
$10M	Pedowitz, M.D., v. The Regents of the University of California, et al., 2014 WL 1661270 (Cal.Super. 2014)	California Whistleblower Protection Act	Dr. Robert Pedowitz, former chairman of UCLA’s orthopedic surgery department, was terminated after raising concerns about colleagues who had financial ties to medical-device makers or other companies that could unduly influence their care of patients or taint important medical research.
$9.4M	Don Sanders v. BNSF Railway Company	FRSA whistleblower retaliation claim	A jury found that Sanders was retaliated against in violation of the FRSA after he reported hazardous safety conditions on the railroad and reported harassment and retaliation to BNSF’s HR Department.
$8.6M	Elliot Zibli and David Doors v. LAPD	California retaliation claim	Retaliation for reporting sexual harassment and abuse of authority. According to a Los Angeles Times article, they "suffered backlash so severe that they feared for their safety. They said they were denied tactical bloodhound training, and weren’t given adequate equipment and support during searches for violent suspects."
$8.4M	Denise Bertone v. Los Angeles County	California whistleblower retaliation claim	Bertone was forced into early retirement in retaliation for raising suspicions about the death of an 8-year-old disabled boy.
$8M	Brian Gruzalski, Stanley Langevin and Mark Collins v FedEx	California retaliation claim	A jury found that FedEx wrongfully disciplined three employees after coming forward to report that FedEx put profits ahead of safety by not maintaining its aircraft consistent with FAA safety requirements. Read more about it here.
$8M	Wadler v. Bio-Rad Labs., Inc., , No. 15-CV-02356-JCS (N.D. Cal. 2017)	Sarbanes-Oxley whistleblower retaliation	Bio-Rad Laboratories Inc. terminated Sanford Walder, the company’s GC of nearly 25 years, after he reported potential violations of the Foreign Corrupt Practices Act (“FCPA”). Bio-Rad claimed it terminated Walder’s employment due to poor work performance and behavior. However, it took a jury only three hours of deliberation to conclude that Bio-Rad retaliated against Walder for his disclosures.
$7.7M	Easley v. N.J. Dept. of Corrections, et al., No. L-000094-13, complaint (N.J. Super. Ct., Burlington Co., Jan. 10, 2013)	New Jersey Whistleblower Protection Law	Lisa Easley, a prison official at the Alfred C. Wagner Youth Correctional Facility, was terminated after assisting the FBI with an investigation of a higher-ranking prison official who was soliciting bribes from employees. Easley's termination came just before she would have qualified for full retirement benefits. A jury awarded Easley $6.5 million in punitive damages, $1 million for emotional distress, and more than $265,000 in back pay as a result of the retaliation.
$7.4M	Juarez v. RadioShack Corporation, JVR No. 1504140030, 2013 WL 10477609 (Cal.Super. 2013)	California Whistleblower Protection Act	RadioShack terminated former Store Manager, Jose Juarez, after he reported fraudulent, illegal and unethical practices taking place in the store.
$7.1M	Zirpel v. Alki David Prods., Inc., 93 Cal. App. 5th 563 (2023)	California Labor Code §§ 232.5 and 1102.5	Court Affirms $7.1 Million Whistleblower Verdict
$7M	Peiter Zatko v. Twitter	whistleblower claims	Twitter Agreed to Pay Whistleblower Roughly $7 Million in June Settlement
$6M	Laurie Simpson v. Bayer	False Claims Act retaliation claim	Simpson alleged that she suffered retaliation for raising concerns about a series of unlawful acts, including paying kickbacks to doctors and hospitals, marketing them off-label, and downplaying their safety risks. Click here to view the settlement
$6M	Zulfer v. Playboy Enterprises Inc.,JVR No. 1405010041, 2014 WL 1891246 (C.D.Cal. 2014)	Sarbanes-Oxley whistleblower retaliation	Playboy terminated Zulfer shortly after she opposed paying bonuses to senior executives that were not authorized by the Board.
$5M	McQueary v. Pa. St. Univ., No. 2012-1804, (Ct. C.P. Centre County 2016)	Wrongful termination	McQueary was terminated by Penn State University as a result of his testimony against officials who failed to act on his February 2001 report of a sex abuse incident involving Jerry Sandusky.
$4.6M	Brent Bullis vs Consulting Radiologists, Ltd.	Minnesota Whistleblower Act	Radiologist to collect $4.6M jury verdict in whistleblower case against former practice
$4.3M	Crowley v. Watson, 2016 IL App (1st) 142847, 51 N.E.3d 69, 72, appeal denied, 50 N.E.3d 1139 (Ill. 2016)	Illinois State Officials and Employees Ethics Act	A former school official at Chicago State University, James Crowley, was terminated after accusing the school’s former president of misconduct. A jury awarded Crowley more than $3 million in 2014 for the retaliation. The school avoided payment, which grew at 6% interest, while it appealed the verdict. In early 2017, the Illinois Appellate Court affirmed the trial court’s decision and ordered the university to pay Crowley $4.3 million.
$4.3M	Carpenter v. Sandia Corp., 2007 WL 1108465 (N.M. Dist. 2007)	New Mexico wrongful termination	Sandia National Laboratories terminated Shawn Carpenter after he refused to comply with Sandia directives that he not disclose information “relating to serious breaches of national security to anyone inside or outside Sandia,” such as the FBI or the Army research lab.
$4M	Dunn v. Enterprise Rent-A-Car Company, 170 S.W.3d 1 (Mo. App. E.D. 2005)	Missouri wrongful discharge	A jury found that Enterprise terminated Dunn's employment because he refused fused to comply with Enterprise's instructions to use improper accounting methods to prepare its financial statements for an IPO. The court founds that Securities Act of 1933 and the Securities Exchange Act of 1934 "establish a clearly mandated public policy" requiring companies who seek to offer securities on a public stock exchange to provide full financial disclosures to inform and protect future investors.
$4M	Cerbone v. Roman Catholic Bishop of Sacramento, JVR No. 1505180066, 2015 WL 2394119 (Cal.Super. 2015)	California Whistleblower Protection Act	Christopher Cerbone, a former Physical Education Teacher and Head Varsity Football Coach, was terminated by the Roman Catholic Bishop of Sacramento after he discovered and reported sexual hazing scandal, which had been occurring among student athletes at the school.
$3.5M	Payne v. District of Columbia, 773 F.Supp.2d 89 (D.D.C 2011)	D.C. Whistleblower Protection Act	Former city contracting officer, Eric W. Payne, claimed that he was terminated for refusing to cancel a contract and subsequently reporting the pressure to cancel the contract to two investigative agencies in the city government. The District of Columbia agreed to settle the whistleblower lawsuit for $3.53 million.
$3.5M	Blakeslee v. Shaw Infrastructure Inc., JVR No. 1307080043, 2013 WL 3457020 (D.Alaska 2013)	False Claims Act whistleblower retaliation	Shaw Infrastructure, Inc. terminated Paul Blakeslee after he wrote a letter to the company expressing concerns about another employee who was allegedly overcharging the government for work at military installations.
$3.3M	Roundtree v. Los Angeles Unified School District, et al., JVR No. 1510130054, 2014 WL 10537455 (Cal.Super. 2015)	California Whistleblower Protection Act	Archie Roundtree, a certified Senior Aerospace Science Instructor, was terminated by Los Angeles Unified School District (LAUSD) after he raised concerns about the school’s practice of involuntarily enrolling students into ROTC classes violating federal law and the LAUSD contract. The court subsequently awarded $5.3M in attorney fees.
$3.2M	Bailets v. Pa. Turnpike Comm'n, No. 265 M.D. 2009, (Pa. Commw. Ct. 2016)	Pennsylvania Whistleblower Law	Ralph Bailets, a manager for the Turnpike Commission, was terminated after exposing a substantial misuse and waste of Commonwealth funds and resources.
$3M	Crawley v. Chicago State University, No. 10 L 12657 (Cook County, Ill., Law Div. 2014)	Illinois wrongful termination	James Crowley, a former Chicago State University employee, was fired in retaliation for reporting alleged misconduct by the university president and other top officials.
$2.85M	Chaudhry v. Florida Hospital Heart and Lung Transplant Institute	Florida Whistleblower Act	Dr. Ahmed Chaudhry alleged that the Institute put its business considerations
$2.5M	Danita Erickson v. Biogen	False Claims Act whistleblower retaliation	In November 2019, Danita Erickson, a former sales representative at Biogen, prevailed at trial on her claims under the whistleblower protection provision of the False Claims Act and Title VII gender discrimination. Erickson alleged that Biogen terminated her employment in retaliation for her internal whistleblowing about the off-label promotion of Zinbryta for aplastic anemia (a use outside the FDA-approved labeling).
$2.5M	Bahra v. San Bernardino County	California retaliation and wrongful discharge claims	Social worker was fired in retaliation for disclosing systemic failures of management resulting in San Bernardino County placing foster children in the home of known abusers.
$2.5M	Roganti v. Metro. Life Ins. Co., 786 F.3d 201 (2d Cir. 2015)	False Claims Act whistleblower retaliation	Ronald A. Roganti, former MetLife Financial Services Vice President, was terminated after protesting the company’s alleged failure to monitor the employment of registered representatives with tainted personnel histories and insisting on following regulations governing compensation to account executives.
$2.3M	Tommy Strelka v. Appalachian Power Co.	Whistleblower retaliation and tortious interference	Roanoke jury finds for ex-Appalachian Power employee who made safety complaints
$2.1M	U.S. v. ManTech Int'l Corp., No. 1:16-cv-132 (E.D. Va. Sep. 14, 2016)	False Claims Act whistleblower retaliation	Two employees were fired after raising concerns that ManTech had manipulated a contract to defraud the government.
$2.1M	Doculan v. Bayonne Medical Center, No. HUD-L-6670-10 (Law Div. May 7, 2013)	New Jersey wrongful termination	Ceferino Doculan, Jr. was terminated by Bayonne Medical Center (BMC) after he made several complaints to hospital management, the HR department and the director of the laboratory department regarding unlawful staffing practices at BMC.
$2M	Hoeper v. City and County of San Francisco, No. CGC-15-543553 (N.D. Cal. Mar. 17, 2017)	California Whistleblower Protection Act and False Claims Act whistleblower retaliation	Former deputy city attorney, Joanne Hoeper, was fired for exposing a long-running illegal payment scheme between municipal officials and plumbing companies.
$1.8M	Becker v. Cmty. Health Sys., No. 2014-SOX-00044 (Nov. 9, 2016)	Sarbanes-Oxley whistleblower retaliation	Rockwood Clinic violated SOX by constructively discharging Gregg Becker, Rockwood’s CFO, for his refusal to lower his projection of the company’s losses by $8 million.
$1.7M	Wright v. Ada County, 160 Idaho 491, 376 P.3d 58 (2016).	Whistleblower Act	Richard Wright, former Public Information Officer of Ada County, was terminated by the Board of Commissioners for launching an investigation into one of his employees for harassment.
$1.7M	Payne v. District of Columbia, et al., No. 2012-ca-6163 (DC Superior Court 2016)	D.C. Anti-SLAPP (Strategic Lawsuits Against Public Participation) Act	Eric Payne was terminated after complaining that then-Council member Jim Graham (D-Ward 1) and then-Council Chairman Vincent C. Gray (D) sought to steer a $228 million lottery contract.
$1.7M	Parexel Int’l Corp. v. Feliciano, No. CIV.A. 04-CV-3798, 2008 WL 2704569 (E.D. Pa. July 3, 2008)	Sarbanes-Oxley whistleblower retaliation	Oswaldo Feliciano was terminated by Barnett International after reporting to superiors that the company’s marketing lists had been obtained by fraudulent means.
$1.7M	U.S. v. Miami-Dade County & Miami-Dade Transit Authority, 25 Fla. J.V.R.A. 5:10, 2015 WL 3823100 (S.D.Fla. 2015)	False Claims Act whistleblower retaliation	Marjan M., a former executive-level employee of Miami Dade Transit (MDT), was terminated after reporting MDT’s fraudulent misapplication of grant funds received from the Federal Transit Administration.
$1.7M	Pietrowski v. The Kintock Group, JVR No. 1304230012, 2013 WL 1737877 (Pa.Com.Pl. 2013)	New Jersey wrongful termination	Marla Pietrowski was terminated after she raised concerns about her manager’s drug activity and the fact that he apparently violated public policy when he brought his child to a facility where convicted child predators were assigned to report.
$1.6M	Van Asdale v. Int’l Game Tech., 549 F. App’x 611, 614 (9th Cir. 2013)	Sarbanes-Oxley whistleblower retaliation	Progenics Pharmaceuticals terminated Julio Perez after he raised concerns about the company issuing a significantly misleading press release about the progress of a new drug.
$1.5M	Erhart v. BofI Federal Bank	Sarbanes-Oxley Act of 2002 and California Labor Code § 1102.5	Mr. Erhart alleged that he was retaliated against and terminated after he reported wrongdoing at the bank to management and to federal regulators.
$1.5M	Eller v. State , No. 2017-6163 (Idaho 2017)	Idaho Protection of Public Employees Act	Idaho State Police retaliated against Brandon Eller, a detective in the police force, after he refused to go along with the police's explanation for a 2011 crash, in which a sheriff's deputy struck and killed a civilian. The jury awarded Eller $1.5 million in damages and $30,500 in lost wages.
$1.5M	Lillie v. Mantech Int l Corp., et al	Defense Contractor Whistleblower Protection Act and False Claims Act whistleblower retaliation	Jury found that Mantech terminated Mr. Lilllie for raising a concern that ManTech might not have permission to access certain files belonging to co-contractor Lockheed Martin. See
$1.5M	Brig v. Port Auth. Trans Hudson, No. 12 CIV. 5371 RPP, 2014 WL 1318345 (S.D.N.Y. Mar. 28, 2014)	Federal Railroad Safety Act whistleblower retaliation	Jason Brig and John Buchala were retaliated against after reporting unsafe equipment and procedures, which almost resulted in both men being hit by a train. Instead of addressing the safety issues, the company charged both men with “unsafe work practices” and they lost a single day’s pay between them.
$1.4M	Cook v. Harrison Medical Center, No. 3:2013cv05986 – Document 88 (W.D. Wash. 2015)	False Claims Act whistleblower retaliation	Harrison Home Care terminated the former billing manager, Lori Cook, after reporting irregularities in Harrison’s billing, which could have Medicare fraud implications.
$1.2M	Baldwin v. City of Atl. City, No. A-2858-12T2, 2015 WL 5009746 (N.J. Super. Ct. App. Div. Aug. 19, 2015)	New Jersey wrongful termination	The City of Atlantic City terminated its solicitor, Kimberly Baldwin, after she raised concerns about whether a tax attorney’s no-bid contract conflicted with pay-to-play restrictions.
$1.2M	Townsend v. Bayer Healthcare Pharmaceuticals Inc., JVR No. 1302080012, 2012 WL 7069840 (E.D.Ark. 2012)	False Claims Act whistleblower retaliation	Mike Townsend, a former pharmaceutical sales representative, was terminated by Bayer Healthcare Pharmaceuticals Inc. reporting a doctor to the Arkansas Attorney General’s Office, for fraudulent Medicaid billing, and for participating in the investigation of the doctor.
$1.2M	Young v. Los Angeles City College,et al., 2011 WL 793028 (Cal.Superior 2011)	California Whistleblower Protection Act	Selwyn Young was terminated by Los Angeles City College after reporting the misuse of funds to the Board of Trustees of the Los Angeles Community College District.
$1M	Bruce Casias v. Raytheon	Defense Contractor Whistleblower Protection Act	A Colorado jury awarded former Raytheon engineer Bruce Casias $43,000 in back pay and $1M in compensatory damages in a Defense Contractor Whistleblower Protection Act (DCWPA) case.
$1M	Brandon Fresquez v BNSF Railway Company	Federal Railroad Safety Act whistleblower retaliation	On February 19th, 2019, a Colorado jury awarded Brandon Fresquez $1,050,000 in damages in his FRSA whistleblower retaliation claim against BNSF Railway Company.
$1M	Kelley vs. Merle Norman Cosmetics, 18 Trials Digest 16th 15, 2013 WL 1898806 (Cal.Super. 2013)	California Whistleblower Protection Act	Merle Norman Cosmetics retaliated against Stephanie Kelley, Director of Marketing, after she reported sexual harassment against herself and other women to the company and to the Department of Fair Employment and Housing.
$1M	Farrell v. City of Los Angeles, JVR No. 1503020027, 2014 WL 7934105 (Cal.Super. 2015)	California Whistleblower Protection Act	Police Officers and Supervisors, Loren Farell and Juan Baello were retaliated against by the City of Los Angeles after they reported what they reasonably believed to be criminal conduct or violations of state and/or federal statutes and regulations by detectives under their supervision.
$1M	Humann v. City of Edmonds, No. C13-101 MJP, 2014 WL 7505838 (W.D.Wash. 2014)	Washington wrongful termination	The City of Edmonds and its Mayor Michael Cooper terminated former Human Resources Director, Debi Humann, after she disclosed to Cooper that she was cooperating with an investigation into his executive assistant, Kimberly Cole, and her substantially high salary, questionable time-sheet and her unaccounted payroll expenses.
$1M	Barati v. Metro-N. R. Co., 939 F. Supp. 2d 153 (D. Conn. 2013)	Federal Railroad Safety Act whistleblower retaliation	Metro-North Railroad retaliated against Andrew Barati after he reported that he broke his big toe when a jack failed and a rail tie fell on his foot. After reporting the injury, the railroad presented him with a notice of firing. He then reportedly received a three-month suspension before he was hired back at Metro-North.
$1M	Samuelson v. California Department of Mental Health, et. al., No. 26-57631 (N.D.Cal. Feb. 20, 2014).	California Whistleblower Protection Act	California Department of Mental Health terminated psychologist Melody Jo Samuelson after she raised concerns that the trial competency evaluation procedures did not comply with the applicable standard of care and violated statute.
$960,000	Feliciano v. New Mexico Public Regulation Commission, et al., No. D-101-cv-2010-02008 (D.N.M. Jan. 18, 2013)	New Mexico wrongful termination	New Mexico Public Relation Commission terminated Aaron Feliciano, a former compliance director, after voicing concerns over his supervisors’ hiring of political contributors to investigate insurance cases resulting in slow, costly and ineffective investigations.
$903,000	Trevor Murray v. UBS	Sarbanes-Oxley whistleblower retaliation	Murray alleged in his SOX complaint that UBS terminated his employment in 2012 for blowing the whistle on Commercial Mortgage-Backed Securities (CMBS) colleagues directing him to “preclear” drafts of his reports to ensure that the reports were favorable to UBS’ CMBS products and trading positions. Murray alleged that he complained about pressure to produce misleading reports and that UBS terminated his employment one month after his most recent complaint.
$900,000	Perez v. City of Los Angeles, JVR No. 1506290047, 2014 WL 9966608 (Cal.Super. 2015)	California Whistleblower Protection Act	Armando Perez, a Police Lieutenant, was retaliated against by the City of Los Angeles after he reporting the findings of an audit concerning his division’s inventory of firearms, which discovered possible violations of federal, state or local laws regarding the sale of firearms to officers and civilians for profit.
$850,000	United States ex rel. Jainniney v. Anmed Health, et al., 1:12-cv-2941 (N.D. Ga.)	False Claims Act whistleblower retaliation	Linda Jainniney, oncology manager at AnMed Health, was retaliated against after raising concerns that the hospital did not require that a radiation oncologist be present when supervising treatment of cancer patients. In addition to her retaliation claims, Ms. Jainniney received a $1.2 million award for exposing that the hospital defrauded the government by upcoding charges to Medicare and submitting fake service claims to Medicare.
$820,000	Weihua Huang v. Rector & Visitors of Univ. of Virginia, 896 F. Supp. 2d 524, 529 (W.D. Va. 2012)	False Claims Act whistleblower retaliation	Two University of Virginia administrators retaliated against Dr. Weihua Huang after he blew the whistle on purported misuse of a federal research grant.
$800,000	Curren v. Denver Health & Hospital Authority, JVR No. 1402240026, 2012 WL 10424143 (D.Colo. 2012)	False Claims Act whistleblower retaliation	JoAnne Curren, an internal auditor, was terminated by Denver Health & Hospitality Authority (DHHA) after she reported DHHA’s fraudulent billing reimbursement from Medicare and Medicaid.
$760,000	Zimmerman v. University of Utah	Utah Whistleblower Act	Researcher was terminated in retaliation for reporting research misconduct. Judith Zimmerman, an assistant professor the psychiatry department at the University of Utah from 2005 to 2013, was granted $135,000 for emotional distress damages and $625,000 for the university’s breach of contract before June 30, 2013, according to the verdict form filed
$730,000	Keyzer v. Regents of Univ. of California, et al., No. 34-2010-0079869 (Cal.Superior 2014)	California Whistleblower Protection Act	UC Davis Center for Healthcare Policy and Research terminated Janet Keyzer, a former UC Davis administrative nurse, after she blew the whistle on an unethical pain management research project on prison inmates.
$725,000	O’Haire v. City and County of San Francisco, JVR No. 1505200018, 2015 WL 2394121 (Cal.Super. 2015)	California Whistleblower Protection Act	Kelly O’Haire, an Internal Affairs Attorney for the city and county’s police department, was terminated after pursuing a discipline case against the Police Chief Greg Suhr. The Police Chief had failed to immediately report a domestic violence incident involving his friend who was later charged with attempted murder.
$700,000	Scott v. Lee Cnty. Sch. Bd., 2004 WL 6022536 (M.D.Fla.)	Florida wrongful termination	Elbert Ernest Scott was constructively discharged after raising issues to the Lee County School Board about problems with fire alarms, sprinkler systems, asbestos remediation and toxic mold in a number of local schools.
$700,000	Jones v. SouthPeak Interactive Corp. of De., 986 F. Supp. 2d 680, 683-85 (E.D. Va. 2013)	Sarbanes-Oxley whistleblower retaliation	SouthPeak terminated its CFO, Read Jones, after she disclosed accounting irregularities to the SEC.
$700,000	Casto v. Berkeley Medical Center, No. 12-C-638 (N.D.W. Va. 2012)	West Virginia wrongful termination	Wendy Casto was fired in retaliation for raising patient safety complaints with hospital management.
$613,000	Preston v. City of Oakland, JVR No. 1510220030, 2015 WL 6375782 (N.D.Cal. 2015)	California Whistleblower Protection Act	Daryelle Lawanna Preston was terminated by the City of Oakland after refusing to falsify a report or falsely testify about hiring practices, which if true, would have violated the city charter.
$600,000	In the Matter of Paradigm Capital Management, Inc. and Candace King Weir, File No. 3-15930 (June 16, 2014)	Dodd-Frank	Whistleblower was retaliated against after notifying the SEC about Paradigm Capital Management Inc. and its principal engaging in trades without effective client disclosure and consent. This tip led the SEC to initiate an action against Paradigm, resulting in total penalties over $2M.
$560,000	Flecker, III v.Statue Cruises L.L.C., JVR No. 1411110030, 2014 WL 5862082 (N.J.Super.L. 2014)	New Jersey wrongful termination	New Jersey wrongful termination Howard Flecker III acted as a class representative against Statute Cruises, L.L.C. regarding overtime pay. In retaliation, his schedule was changed and his hours were reduced from 40-50 hours per week to 35 hours.
$515,000	Mantilla v. Apgar Brothers Trucking Company, JVR No. 1505220042, 2014 WL 8879646 (N.J.Super.L. 2014)	New Jersey wrongful termination	Fernando Mantilla, a full-time truck driver, was terminated by Apgar Brothers Trucking Company after raising concerns about having to drive in excess of the maximum number of hours allowed by the United States Department of Transportation, and under the federal motor carrier safety regulations.
$455,000	Sergeant Duym v. Township of Millburn, JVR No. 1407220038, 2014 WL 3704210 (N.J.Super.L. 2014)	New Jersey wrongful termination	Sergeant Kenneth Duym, a firearms range master, was retaliated against after refusing to make an acceptation for a Police Captain who could no longer pass the duty weapon re-qualification test.
$250,000	Rhinehimer v. Bancorp Investment, Inc., 2013 WL 9235343 (E.D.Ky. Dec. 27, 2013)	Sarbanes-Oxley whistleblower retaliation	A former financial planner at Bancorp Investments, Inc. was wrongfully terminated for disclosing trade unsuitability.

Back Pay Damages in Whistleblower Retaliation Cases

Back pay is compensation for lost wages and benefits that the whistleblower would have earned absent the adverse employment action, offset by interim earnings.  A back pay award may include all promotions and salary increases the complainant would have received in the absence of retaliation.  See, e.g., Welch v. Cardinal Bankshares Corp., 2003-SOX-15, at 17 (ALJ Feb. 15, 2005) (holding that a prevailing complainant “is entitled to all promotions and salary increases that he would have obtained but for the illegal discharge”) rev’d on other grounds, 536 F.3d 269 (4th Cir. 2008). The value of stock options is recoverable in SOX whistleblower cases.  Hagman v. Washington Mutual Bank, Inc., 2005-SOX-73, 2006 WL 6105301, *32 (Dec. 19, 2006).  

In addition to back pay, a prevailing whistleblower is entitled to prejudgment interest under certain whistleblower protection laws.  Prejudgment interest accrues from the time of the whistleblower’s termination to the time that the court entered judgment.

Under the False Claims Act whistleblower protection law and Dodd-Frank anti-retaliation provision, a prevailing whistleblower is entitled to recover double back pay.  In Mooney v. Americare, the court held that back pay is doubled before the court offsets the value of interim earnings (also known as mitigation).

Back pay can also include contracted severance pay to which he would be entitled in the event of discharge without cause when reinstatement was not appropriate. See Loftus v. Horizon Lines, Inc., ARB No. 16-082, ALJ No. 2014-SPA-004 (ARB May 24, 2018).

Front Pay in Lieu of Reinstatement in Whistleblower Retaliation Cases

Reinstatement is the “presumptive and preferred remedy,” but where pronounced animosity between the parties leads both of them to advocate against reinstatement, front pay may be an appropriate substitute.  Front pay is designed to compensate the plaintiff for the time it would take to secure comparable employment. See, e.g., Hagman v. Washington Mutual Bank, Inc., ALJ Case No. 2005-SOX-00073, at 26–30 (ARB Dec. 19, 2006), appeal dismissed, ARB Case No. 07-039 (ARB May 23, 2007) (awarding $640,000 in front pay to a banker whose supervisor became verbally and physically threatening when the banker disclosed concerns about the short funding of construction loans).

Where a whistleblower demonstrates that he planned to continue working for the employer until he or she reached normal retirement age and demonstrates sufficient efforts to mitigate damages (find comparable employment), the whistleblower can been entitled to expected earnings to the date of retirement.  For example in the Perez v. Progenics Pharmaceuticals SOX whistleblower case, the court awarded approximately $2.7 in front pay.  That case is discussed in an article in Corporate Counsel titled How to Help a Whistleblower.

Front pay is an appropriate remedy in lieu of reinstatement in SOX whistleblower cases. See Jones v. SouthPeak Interactive Corp., 986 F. Supp. 2d 680 (E.D. Va. 2013), aff’d, 777 F.3d 658 (4th Cir. 2015). Andrea Jones worked at SouthPeak Interactive Corp. (“SouthPeak”) as its chief financial officer, and SouthPeak terminated her employment two days after she disclosed accounting irregularities to the SEC. Following a four-day trial, a jury found for Jones and awarded nearly $700,000 in damages. Jones then filed a motion seeking front pay in lieu of reinstatement and in addition to compensatory damages. Judge Payne awarded front pay, and noted the following:

Front pay also has been more precisely defined as “a lump sum … representing the discounted present value of the difference between the earnings [an employee] would have received in his old employment and the earnings he can be expected to receive in his present and future, and by hypothesis, inferior, employment.” McKnight v. Gen. Motors Corp., 908 F.2d 104, 116 (7th Cir.1990), cert. denied, 499 U.S. 919, 111 S.Ct. 1306, 113 L.Ed.2d 241 (1991), partially superseded by Civil Rights Act of 1991, Pub.L. 102-166, 105 Stat. 1071 (codified at 42 U.S.C. 1981 et seq.). If a plaintiff has been diverted onto a less profitable career path through the unlawful actions of his former employer, an award of front pay to compensate the plaintiff until such time as he can regain his former career track is not a windfall.

SouthPeak appealed Judge Payne’s decision. The DOL filed an amicus curiae brief arguing that front pay is an appropriate remedy under SOX, and the Fourth Circuit affirmed. See 777 F.3d at 663.

In calculating front pay, courts should apply the following guiding principles:

• “It is well settled that `the risk of lack of certainty with respect to projections of lost income must be borne by the wrongdoer, not the victim.” Bartek v. Urban Redevelop ent Authority, 882 F.2d 739, 746 (3d Cir. 1989).
• The Court should “assume, absent evidence to the contrary, that the illegally discharged employee would have continued working for the employer until he or she reached normal retirement age.”  See Perez v. Progenics Pharmaceuticals, Inc., 204 F. Supp. 3d 528 (S.D.N.Y. 2016).

Compensatory Damages in Whistleblower Retaliation Cases

The SOX whistleblower protection law and similar corporate whistleblower protection laws authorize the award of not only economic damages, but also “special damages” which includes damages for emotional distress, mental anguish, humiliation and injury to reputation.  See, e.g., Lockheed Martin Corp. v. Admin. Rev. Bd., 717 F.3d 1121, 1138 (10th Cir. 2013) (upholding an award of “noneconomic compensatory damages” for “emotional pain and suffering, mental anguish, and humiliation”).  As a federal judge held in Hanna v. WCI Communities, Inc., 348 F.Supp.2d 1332 (S.D.Fla.2004), a SOX whistleblower case, “[w]hen reputational injury caused by an employer’s unlawful discrimination diminishes a plaintiff’s future earnings capacity, [he] cannot be made whole without compensation for the lost future earnings [he] would have received absent the employer’s unlawful activity.”

“[A] plaintiff’s testimony, standing alone, can support an award of compensatory damages, [but] the evidence of the emotional distress must be demonstrable, genuine, and adequately explained.”  Price v. City of Charlotte, N.C., 93 F.3d 1241, 1251-52 (4th Cir. 1996).  The whistleblower’s testimony “must indicate with specificity how the plaintiff’s alleged distress manifested itself.” Bryant v. Aiken Reg’l Med. Ctrs., 333 F.3d 536, 547 (4th Cir. 2003) (internal quotation marks and alterations omitted).

Attorney Fees and Litigation Costs in Whistleblower Retaliation Cases

Legal fees and costs in whistleblower retaliation cases can also be significant.  In the Wadler v. Bio Rad SOX whistleblower retaliation case, Bio-Rad stipulated to $3M in attorney fees for the whistleblower’s counsel.  In March 2020, Magistrate Judge Michael E. Hegarty awarded $2,719,225.50 in lodestar fees on the whistleblower’s recovery of $620,105.00 in an NDAA whistleblower retaliation case.  See Cejka v. Vectrus Systems Corp., 2019 WL 8198090 (D. Colo. Feb. 21, 2019).

Sarbanes-Oxley (SOX) Whistleblower Jury Verdicts

Recently, a California jury awarded former Bio-Rad Laboratories Inc. General Counsel Sanford Wadler $11M in his Sarbanes-Oxley whistleblower retaliation lawsuit.  Approximately $3M of the award is for back pay and the remaining amount is for punitive damages.  Under the Dodd-Frank Act, backpay will likely be doubled.  Wadler worked as GC at Bio-Rad for approximately 25 years.  He blew the whistle internally by reporting potential violations of the Foreign Corrupt Practices Act (“FCPA”).  Bio-Rad investigated Wadler’s disclosures and concluded that there was no evidence of either a violation or an attempted violation of the FCPA.  In June 2013, Bio-Rad terminated Wadler’s employment due to alleged poor work performance and behavior. The jury verdict in the Wadler SOX case appears to be the highest award to date under the whistleblower protection provision of SOX.  There are approximately three other SOX whistleblower cases that resulted in damages in excess of $2M:

• In 2014, a California jury awarded $6 million to Catherine Zulfer in her SOX whistleblower retaliation action against Playboy, Inc. (“Playboy”). Zulfer v. Playboy Enters. Inc., JVR No. 1405010041, 2014 WL 1891246 (C.D. Cal. Mar. 5, 2014). Zulfer, a former accounting executive, alleged that Playboy had terminated her in retaliation for raising concerns about executive bonuses to Playboy’s chief financial officer (“CFO”) and chief compliance officer (“CCO”). She contended that she had been instructed by Playboy’s CFO to set aside $1 million for executive bonuses that had not been approved by the board of directors. Zulfer refused to carry out this instruction, warning Playboy’s General Counsel that the bonuses were contrary to Playboy’s internal controls over financial reporting. After Zulfer’s disclosure, the CFO retaliated by ostracizing Zulfer, excluding her from meetings, forcing her to take on additional duties, and eventually terminating her employment. After a short trial, a jury awarded Zulfer $6 million in compensatory damages and also ruled that Zulfer was entitled to punitive damages. Id. Zulfer and Playboy reached a settlement before a determination of punitive damages.
• In 2016, Dr. Perez, a former senior manager of pharmaceutical chemistry at Progenics Pharmaceuticals, Inc. (“Progenics”), recovered a total of $5M in a SOX whistleblower case.  Perez alleged that Progenics terminated his employment in retaliation for his disclosure to Progenics executives that the company was committing fraud against shareholders by making inaccurate representations about the results of a clinical trial.  Dr. Perez represented himself at trial.  Corporate Counsel magazine reported on the case in an article titled: How to Help a Whistleblower.
• In 2013, the Ninth Circuit affirmed a SOX jury verdict awarding $2.2 million in damages, plus $2.4 million in attorney’s fees, to two former in-house counsel. Van Asdale v. Int’l Game Tech., 549 F. App’x 611, 614 (9th Cir. Sept. 27, 2013). Shawn and Lena Van Asdale, both former in-house counsel at International Game Technology (“IGT”), alleged that they had been terminated in retaliation for disclosing shareholder fraud related to IGT’s merger with rival game company Anchor Gaming (“Anchor”). Specifically, the Van Asdales alleged that Anchor had withheld important information about its value, causing IGT to commit shareholder fraud by paying above market value to acquire Anchor. Van Asdale v. Int’l Game Tech., 577 F.3d 989, 992 (9th Cir. 2009). When the Van Asdales discovered the issue, they brought their concerns about the potential fraud to their boss, who had served as Anchor’s general counsel prior to the merger. IGT terminated both plaintiffs shortly thereafter.

SOX Whistleblower Lawyer’s Guide to Sarbanes-Oxley Whistleblower Protection Law

The whistleblower protection provision of the Sarbanes-Oxley Act provides robust protection to corporate whistleblowers, and indeed some SOX whistleblowers have achieved substantial recoveries. See our guide to the SOX whistleblower protection law: Sarbanes-Oxley Whistleblower Protection: Robust Protection for Corporate Whistleblowers.  

The guide summarizes SOX whistleblower protections and offers concrete tips for corporate whistleblowers based on lessons learned during years of litigating SOX whistleblower cases.

Whistleblower Retaliation

Tax Gross-Up

A recent post-verdict decision in an FRSA whistleblower retaliation case discusses well-established authority for tax gross-ups where there is a lump sum payment for back pay:

The majority of circuit courts that have ruled on the issue have found authority for tax gross-ups rests within the district court’s broad discretion to make victims of unlawful employment practices whole. Sears, 749 F.2d at 1456; Eshelman, 554 F.3d at 422; EEOC v. N. Star Hosp., Inc., 777 F.3d 898 (7th Cir. 2015); Clemens, 874 F.3d at 1117 (“We join the thoughtful analysis of the Third, Seventh, and Tenth Circuits, and reject the matchbook musings of the D.C. Circuit. In so doing, we also agree with those courts that the decision to award a gross up—and the appropriate amount of any such gross up—is left to the sound discretion of the district court.”); see also Sonoma Apartment Assocs. v. United States, 127 Fed. Cl. 721, 732 (2016) (“[I]f [a plaintiff’s] evidence reflects that the tax differential can be ascertained with reasonable certainty, then the court should consider allowing recovery of a tax neutralization payment.”).

The Eighth Circuit in Arneson v. Callahan, came close to authorizing a “tax enhancement remedy” when available “as an element of making persons whole for discrimination injuries.” 128 F.3d at 1247 (citing Loeffler v. Frank, 486 U.S. 549, 558); see Arneson v. Sullivan, 958 F. Supp. 443, 446–47 (E.D. Mo. 1996) (enhancing the plaintiff’s “back pay award to compensate him for the increased income tax liability resulting from the receipt of the award in two lump sum payments.”). However, the plaintiff in Arneson was seeking tax-enhancement damages against the Social Security Administration, and the Eighth Circuit reversed the district court’s tax enhancement award because Congress had not yet waived sovereign immunity for such relief, nor “authorized the tax enhancement remedy against the federal government.” Id. Therefore, the Eighth Circuit has not directly ruled on whether there is authority for a tax gross-up award when a private employer, rather than the federal government, is liable. But see Hukkanen v. Int’l Union of Operating Eng’rs, Hoisting & Portable Loc. No. 101, 3 F.3d 281 (8th Cir. 1993) (affirming district court’s denial of a tax enhancement or gross-up against non-governmental employer due to lack of sufficient evidence for the amount requested, but not challenging the court’s authority to order a tax gross-up).

This Court concludes authority for tax gross-ups exists in light of the make-whole remedy under the FRSA and similar anti-discrimination statutes, as well as the majority of circuit courts holding the same. Indeed, “ ‘[i]t is the historic purpose of equity to secure complete justice,’ and that ‘[i]n the context of a claim brought under a federal statute intended to combat discrimination, the phrase “complete justice” has a clear meaning: “the [district] court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” ’ ” Clemens, 874 F.3d at 1116 (citing Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 873 (9th Cir. 2017)) (citations omitted). Considering the special circumstances here regarding the protracted nature of litigation and the adverse tax consequences Plaintiff will face by receiving a lump sum gap-pay award in 2022, the Court holds Plaintiff is entitled to a tax gross-up. The Court must now determine whether such an award is prejudicial to Defendant and whether Plaintiff has met his evidentiary burden in support of the amount requested. SeeEshelman, 554 F.3d at 443.

 

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We have assembled a team of leading whistleblower lawyers to provide top-notch representation to whistleblowers and obtain maximum damages.  Zuckerman served in a senior position at the Office of Special Counsel, where he oversaw investigations of whistleblower retaliation claims and whistleblower disclosures, and enforced the Whistleblower Protection Act.  We will put our unique experience and credentials to work for you:

• U.S. News and Best Lawyers® have named Zuckerman Law a Tier 1 firm in Litigation – Labor and Employment in the Washington DC metropolitan area.
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• Described by the National Law Journal as a “leading whistleblower attorney,” founding Principal Jason Zuckerman has established precedent under a wide range of whistleblower protection laws and obtained substantial compensation for his clients and recoveries for the government in whistleblower rewards and whistleblower retaliation cases.  He served on the Department of Labor’s Whistleblower Protection Advisory Committee, which makes recommendations to the Secretary of Labor to improve OSHA’s administration of federal whistleblower protection laws.  Zuckerman also served as Senior Legal Advisor to the Special Counsel at the U.S. Office of Special Counsel, the federal agency charged with protecting whistleblowers in the federal government.  At OSC, he oversaw investigations of whistleblower claims and obtained corrective action or relief for whistleblowers.
• Zuckerman was recognized by Washingtonian magazine as a “Top Whistleblower Lawyer” (2020, 2018, 2017, 2015, 2009, and 2007), selected by his peers to be included in The Best Lawyers in America® in the category of employment law (2011-2021) and in SuperLawyers in the category of labor and employment law (2012 and 2015-2021), is rated 10 out of 10 by Avvo, based largely on client reviews, and is rated AV Preeminent® by Martindale-Hubbell based on peer reviews
• We have published extensively on whistleblower rights and protections, and speak nationwide at seminars and continuing legal education conferences.  We blog about new developments under whistleblower retaliation and rewards laws at the Whistleblower Protection Law and SEC Awards Blog, and in 2019, the National Law Review awarded Zuckerman its “Go-To Thought Leadership Award” for his analysis of developments in whistleblower law.

Video FAQs About Whistleblower Protection and Retaliation Laws

What is the Whistleblower Protection Act?

Does a SOX whistleblower need to prove that the employer’s reason for the adverse action is untrue?

What federal laws protect whistleblowers against retaliation?

Is threatening a countersuit against a whistleblower an act of retaliation?

Does the Sarbanes-Oxley Act protect whistleblowing in the course of performing one’s job duties?

Is knowledge of protected conduct and close temporal proximity sufficient to prove retaliation? 

How can a whistleblower prove retaliation?

Does OSHA prohibit gag clauses in settlement agreements?

Where are SOX whistleblower cases litigated? 

Is a lawsuit against a whistleblower actionable retaliation?

Punitive Damages in FRSA Retaliation Cases

“In Youngermann, the ALJ found that the employer acted with reckless indifference to the complainant’s rights when the complainant refused to haul a truck with insufficient lighting, and awarded $100,000. In D’Hooge v. BNSF Rys., ALJ No. 2014–FRS–2, slip op. at 65 (ALJ Mar. 25, 2015), aff’d ARB Nos. 15–042, –066, Respondent was assessed a punitive damage award of $25,000 in a case where one manager had made a “snap, personal assumption” that a report was made in bad faith. In Griebel v. Union Pac. R.R. Co., OALJ No. 2011–FRS–00011 (ALJ Jan. 31, 2013), aff’d ARB No. 13–038 (ARB Mar. 18, 2014), the ARB affirmed $100,000 in punitive damages where the employer had “a mentality that discourages the filing of an injury report, and meets those that are filed with suspicion and mistrust” and did not give appropriate consideration to employees’ rights under the FRSA. In Harvey, the ALJ awarded $100,000 in punitive damages after finding that the “[r]espondent’s policies and culture have created an atmosphere of fear and discouragement surrounding the reporting of injuries and locomotive defects, and this atmosphere has resulted in a chilling effect on employees’ decisions to engage in protected activity.” Harvey v. Union Pacific Railroad, OALJ No. 2011–FRS–00039 at 42–46 (ALJ Feb. 12, 2015). In Laidler v. Grand Trunk Western Railroad Co., ARB No. 2021–0013, ALJ No. 2014–FRS–00099 (ARB Aug. 31, 2021), the ARB affirmed a punitive damages award of $100,000 where the ALJ determined that Respondent “creat[ed] a work environment in which employees put themselves in danger out of fear of losing their livelihoods, creating an issue of safety and striking at the heart of the FRSA’s protections.”  In Burt v. Nat’l Railroad Passenger Corp. (“Amtrak”), the ARB affirmed an award of $35,000 in punitive damages where the ALJ found that the respondent’s culture recklessly disregards a complainant’s anonymity when they engage in protected activity or other confidential reporting. ARB No. 2020–0042, ALJ No. 2018–FRS–00015 (ARB Apr. 29, 2021). In Lancaster v. Norfolk Southern Railway Co., the ARB affirmed an award of $25,000, where the respondent intentionally violated the Hours of Service Act. ARB No. 2019–0048, ALJ No. 2018–FRS–00032 (ARB Feb. 25, 2021).” Klinger v. BNSF Railroad Co., ALJ No. 2016-FRS-00062, at 24-25 (ALJ Sept. 29, 2022).