Javitz v. Luzerne County, Pa. Supreme Court – May 5, 2023 – reported, precedential
https://www.pacourts.us/assets/opinions/Supreme/out/J-49-2022mo%20-%20105527876223594181.pdf?cb=1
whistleblower law (a) Persons not to be discharged.--No employer may discharge, threaten or otherwise discriminate or retaliate against an employee regarding the employee’s compensation, terms, conditions, location or privileges of employment because the employee or a person acting on behalf of the employee makes a good faith report or is about to report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing or waste by a public body or an instance of waste by any other employer as defined in this act. 43 P.S. § 1423(a). 3
The Commonwealth Court recognized that to establish a prima facie claim under the Whistleblower Law, a plaintiff must establish “(1) a protected report of wrongdoing, (2) by a public body, and (3) a causal connection between the report and her termination.” Javitz v. Luzerne Cnty., 115 C.D. 2020, 2021 WL 3028160, at *6 (Pa. Commw. July 19, 2021) (unpublished disposition), appeal granted, 267 A.3d 482 (Pa. 2021).
The Whistleblower Law is “chiefly a remedial measure” that aims to promote openness in governmental operations and governmental compliance with the law. O’Rourke, 778 A.2d at 1202. It achieves these goals by protecting employees from adverse employer action following a report of actual or suspected violation of federal, state or local law; protecting employees who participate in hearings, investigations, or court proceedings regarding employer misconduct; and providing remedies for employees and penalties against employers for actions that violate its terms. Bailets v. Pa. Tpk. Comm’n, 123 A.3d 300, 307 (Pa. 2015); see also 43 P.S. § 1421,
Section 4 of the Whistleblower Law provides a cause of action, allowing that “[a] person who alleges a violation of this act may bring a civil action in a court of competent jurisdiction for appropriate injunctive relief or damages, or both, within 180 days after the occurrence of the alleged violation.” Id. § 1424(a).
To establish a prima facie case of a violation of Section 3(a), an employee must establish “by a preponderance of the evidence that, prior to the alleged reprisal, the employee or a person acting on behalf of the employee had reported or was about to report in good faith, verbally or in writing, an instance of wrongdoing or waste to the employer or an appropriate authority.” Id. § 1424(b). In the case of alleged retaliatory termination, the employee must show a causal connection between the report of wrongdoing and the termination. Bailets, 123 A.3d at 306
The causation requirement was first articulated in Gray v. Hafer, 651 A.2d 221 (Pa. Commw. 1994), aff’d per curiam, 669 A.2d 335 (Pa. 1995). . . . . the Commonwealth Court explained, at the pleading stage, such an employee must allege a connection between the report of waste or wrongdoing and the termination:
To make out a cause of action under the Whistleblower Law by one who, as part of his or her regular job duties, files reports of waste or wrongdoing based on wrongdoing outside the governmental entity that he is charged with seeking out, that person must make more than a general statement that a report was filed and, within a given amount of time, the employee was fired as a result. An employee who has been terminated based on a filed report and wants to base his or her complaint on their employer’s violation under the Whistleblower Law must specify how their employer is guilty of waste and/or wrongdoing. They must also show by concrete facts or surrounding circumstances that the report led to their dismissal, such as that there was specific direction or information they received not to file the report or there would be adverse consequences because the report was filed. Id. (emphasis added).
Four years later, this Court adopted this causation standard. Golaschevsky, 720A.2d at 759.
Quoting directly from Gray, this Court stated that to establish the causal connection for a claim of retaliatory termination under the Whistleblower Law, an employee “must show by concrete facts or surrounding circumstances that the report of wrongdoing ... led to the [] dismissal, such as that there was specific direction or information received not to file the report or that there would be adverse consequences because the report was filed.” Id. at 759 (internal quotations omitted) (emphasis added) (quoting Gray, 651 A.2d at 225).
Thus, in Golaschevsky, the Court held that a plaintiff’s prima facie case for causation may be established by use of either “concrete facts or surrounding circumstances” but not by the employee’s conclusory perception of how others treated him after making a report of alleged wrongdoing. Id. at 759-60.
When considered in the context of the evidence adduced by the employee, it is clear that the requirement for “concrete facts or surrounding circumstances” to establish a causal connection means that the whistleblower plaintiff cannot rely on his or her perception of the facts to support a conclusion that the employer engaged in antagonistic conduct after the report. Instead, the plaintiff must prove the concrete facts or surrounding circumstances from which the factfinder can draw the inference that the employer’s conduct was antagonistic.
Golaschevsky stands for the proposition that a plaintiff cannot rely on self-serving conclusions of an antagonistic post-report workplace and subsequent discharge to establish a prima facie case of causation.
The Commonwealth Court’s wholesale classification of this evidence as Javitz’s “subjective perception” is wrong. The only item of evidence properly characterized as “subjective perception” evidence is her characterization of the “rude behavior of her supervisors.”
Evidence of pre-report performance praise and the post- report relocation of her office, restriction of her participation in union meetings and contract negotiations, and changes in the delegation of responsibilities is evidence of facts, not perception, upon which an inference of post-report antagonism and causation could be based. In its summary of Javitz’s evidence, the Commonwealth Court neglected to include the additional evidence of post-reporting antagonism that she, as the human resources director, was denied access to personnel files that were locked away and not given a key to access them, that she was told for the first time to do the filing for the office, that Lawson instructed the District Attorney not to pursue an investigation into the report, that Parsnik ignored all of her inquires as to what action was being taken as a result of her report, and that she was not provided a reason for her termination, even after requesting it. This is “concrete evidence” offered in support of establishing a causal connection. Javitz argues in her brief that she produced evidence of facts supporting an inference of a pattern of post-reporting antagonism culminating in her discharge,20 and we agree that the Commonwealth Court erred in concluding that it was instead merely her perception that the conduct was antagonistic.
For this reason, we conclude that the Commonwealth Court erred and misapplied the law. Accordingly, we vacate its order and remand for further proceedings consistent with this opinion
-
