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Whistleblowing Employee Put on Probation: Retaliation?

September 10, 2007

Was an employee put on probation because he blew the whistle on alleged illegalities, or because of his poor sales record? A federal court sitting in Pennsylvania recently looked at some of the evidence necessary to resolve such a question.

What happened. John Petroci worked as a sales manager at the Exton office of Atlantic Envelope. During his time with Atlantic, the company was also defending an age discrimination case brought by a 59-year-old employee. In July 2004, an HR officer hinted to Petroci that his boss, Jim Brown, had lied on the stand in that case, and had also persuaded other employees to do so. When Petroci told top management about this, he was placed on administrative leave while the company investigated.

The investigation concluded that there had been no perjury. But while the investigation was taking place, Atlantic decided that Petroci’s sales were sub par, and placed him on a performance improvement plan. When Petroci returned from the leave, the company put him on probation. Soon, Petroci’s doctor put him on leave of absence for anxiety, and during that leave, Atlantic terminated him. He sued Atlantic for retaliation under the state and federal age discrimination laws. The company asked the court to dismiss the case at an early stage.

What the court said. To prove retaliation, Petroci had to prove that he engaged in a protected activity; that Atlantic subjected him to an adverse action; and that there was a causal link between the two. Petroci satisfied the first factor because notifying the company about the alleged perjury was a protected activity under state and federal antibias law. He satisfied the second by showing that he had been placed on a remedial program and on probation. As for the third factor, the court found a causal link in the fact that he was put on the PIP 20 days after telling top management about the perjury, and on probation about 20 days after that.

As a nondiscriminatory reason for its action, Atlantic cited Petroci’s low sales and strained relationships with co-workers. But Petroci showed that that was a pretext for discrimination because there was nothing in his file, before he notified management, stating that he was underperforming. Furthermore, there was no documentation of strained relationships. The court concluded that a reasonable jury could decide that Atlantic’s justifications were pretextual, and allowed the case to go to a jury. Petroci v. Atlantic Envelope Company, U.S. District Court for the Eastern District of Pennsylvania, Civil No. 06-2792 (7/3/07).

Point to remember: If you are going to discipline an employee, especially one who is questioning your ethics, you should be sure that that employee’s file shows independent business reasons for the discipline, and that that documentation dates from before the employee questioned the company’s actions.


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